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Munshi Ram And Another v. Shakuntala Devi .
Structured Summary of the Opinion
Factual and Procedural Background
These two revision petitions challenge an order of remand in suits for ejectment passed by the Sub Judge (CJM) Jammu on 26-10-1974. The plaintiff instituted two ejectment suits against Munshi Ram and Mulk Raj concerning shops situated at Mohalla Ustad. The plaintiff alleged that she had purchased four shops by a registered sale deed; two of those shops were in the possession of the defendants under lease. She claimed she required the shops for rebuilding and for the personal use of a son who intended to start business there. The plaintiff stated she had served notices of ejectment by registered post and relied on acknowledgements purportedly signed by the defendants.
The trial court framed and decided several issues. It decided all issues except the issue of service of notice in the plaintiff's favour, but held that the plaintiff had failed to prove that notices had been issued and served on the defendants; on that ground the suits were dismissed. The plaintiff appealed separately to the Sub Judge (CJM) Jammu and moved under Order 41, Rule 27 of the Civil Procedure Code (CPC) for leave to produce additional evidence to prove service of the notices. The lower appellate court allowed additional evidence, set aside the trial court's finding on the notice issue, and remanded that issue to the trial court for fresh determination after recording the additional evidence. The defendants challenged that remand order by filing the present revision petitions in this Court.
Legal Issues Presented
- Whether the lower appellate court rightly exercised its discretion under Order 41, Rule 27, CPC in permitting the plaintiff to produce additional evidence on the issue of service of notice.
- Whether a presumption as to delivery of notice sent by post arises under Section 114 of the Indian Evidence Act read with Section 27 of the General Clauses Act, and if so, what is the effect of a categorical denial of receipt by the addressee.
- Whether the earlier view attributed to Anant Singh J. (reported as 1970 Ren CJ 940 : AIR 1971 J & K 20) — that service by post must always be proved by producing evidence and no presumption can be drawn — is correct or requires reconsideration.
Arguments of the Parties
Petitioners' (Defendants') Arguments
- The lower appellate court illegally exercised its jurisdiction by permitting the plaintiff to produce additional evidence under Order 41, Rule 27 CPC.
- The onus of proving service of notice was on the plaintiff; she had ample opportunity at trial but failed to discharge this onus, and the trial court therefore rightly recorded an adverse finding.
- The presumption under Section 114 of the Evidence Act is rebuttable; since the defendants denied receipt of the notices, no presumption of delivery should have been drawn and the plaintiff ought to have been held to her burden of proof.
Respondent's (Plaintiff's) Arguments
- The decision of Anant Singh J. requires reconsideration; when notices are posted and acknowledgment forms bear endorsements, a presumption arises under Section 114 of the Evidence Act read with Section 27 of the General Clauses Act that official acts were performed in the ordinary course of business and that the notices were delivered.
- Because of the legal presumption, the plaintiff had no further obligation to produce evidence at trial to prove service.
- Even if proof was lacking at trial, the lower appellate court was empowered under Order 41, Rule 27 CPC to allow additional evidence in the interest of justice and to enable it to pronounce a more satisfactory judgment; thus permitting additional evidence on remand was within the appellate court's discretion.
- Relied on cited authorities (as set out in the opinion) to support the contention that presumption and the appellate court's power justify allowing additional evidence.
Table of Precedents Cited
| Precedent | Rule or Principle Cited For | Application by the Court |
|---|---|---|
| Harjeet Singh v. Parshotam Dass, AIR 1977 NOC 335 (Point (E) (J & K)) | Relied upon by respondent's counsel to support that a presumption arises under Section 114 of the Evidence Act read with Section 27 of the General Clauses Act where notice is sent by post and acknowledgements bear endorsements. | The Court recorded that the respondent's counsel relied upon this authority, but the judgment's analysis treats the presumption as conditional (it can be raised only when correct particulars of the addressee appear on the notice/acknowledgement) and rebuttable. |
| AIR 1970 All 446 (Full Bench) | Also relied upon by respondent's counsel as supportive of the presumption in favour of delivery when notices are sent by post and acknowledgements are endorsed. | The Court noted reliance on this decision by respondent's counsel but did not adopt an unconditional rule; instead, the Court maintained that the presumption is rebuttable and depends on showing correct particulars. |
| AIR 1963 SC 1526 | Supreme Court observation that an appellate court may ask for additional evidence even if it is able to pronounce judgment on the record, where in interest of justice it wishes to fill up what remains obscure. | The Court relied on this authority to support the proposition that the lower appellate court properly exercised its discretion under Order 41, Rule 27 CPC to call for additional evidence to clear an obscure but decisive matter. |
| AIR 1951 SC 1 | Proposition that where a first appellate court allows additional evidence to enable it to come to a proper decision, the appellate court in second appeal will not interfere with that discretion. | The Court applied this principle to hold that the second appellate (revision) court should not interfere with the lower appellate court's discretionary grant of additional evidence, reinforcing the remand as proper exercise of discretion. |
| 1970 Ren CJ 940 : AIR 1971 J & K 20 (Anant Singh J.) | Held (as described in the opinion) that service of notice sent by post must be proved by producing evidence and that no presumption can be drawn under law. | The Court disagreed with this view, observed that the decision ignored the effect of Section 114(c) and Section 27 of the General Clauses Act, and stated that the principle requires reconsideration; the Court did not follow that restrictive rule. |
| AIR 1970 Pat 266 | Divisional Bench view that the High Court will refuse to interfere in exercise of its power under Section 115 even where the lower appellate court has committed a legal error in ordering additional evidence. | The Court cited this authority as additional support for non-interference with the lower appellate court's discretion to permit additional evidence and for affirming the remand. |
Court's Reasoning and Analysis
The Court undertook a step-by-step analysis limited to the materials and arguments before it:
- The Court observed that at trial the plaintiff appeared confused about her obligation to prove service of the notices and that the trial court, in consequence of a categorical denial by the defendants of receipt and signature on the acknowledgements, placed the onus on the plaintiff and found against her for lack of proof.
- The Court examined the legal effect of presumptions under Section 114 of the Evidence Act read with Section 27 of the General Clauses Act. It held that such presumptions can arise only where it is shown that the notice contained correct particulars of the addressee and the acknowledgements correspondingly bear those particulars. The Court reiterated that any presumption so raised is rebuttable by the defendants.
- Turning to the discretion of the appellate court under Order 41, Rule 27 CPC, the Court noted that Rule 27 empowers an appellate court to allow additional evidence not only when necessary to enable it to pronounce judgment but also for any other sufficient cause. The Court relied on Supreme Court observations (AIR 1963 SC 1526) that additional evidence may be asked for if something remained obscure and filling that lacuna would permit a more satisfactory judgment.
- The Court further relied on the principle (AIR 1951 SC 1) that when a first appellate court has exercised its discretion to allow additional evidence for proper determination, a second appeal (or revisional jurisdiction) will not ordinarily interfere with that discretion.
- Applying these principles to the facts, the Court found that all material issues except the notice issue had been decided in the plaintiff's favour and that the suits were defeated solely on the technical ground of want of proof of service. Given the absence of any evidence on the notice issue and the importance of that issue to the final result, the lower appellate court reasonably concluded that remanding the matter for additional evidence was a fit exercise of discretion to do complete justice and to clear an obscure point.
- The Court explicitly rejected the restrictive approach attributed to Anant Singh J. (1970 Ren CJ 940 : AIR 1971 J & K 20) insofar as it purported to deny any presumption arising from postal endorsement and delivery; the Court observed that that earlier view ignored Section 114(c) and Section 27 of the General Clauses Act and therefore required reconsideration. Nonetheless, the Court reaffirmed that any such presumption is rebuttable.
- The Court noted an allied authority (AIR 1970 Pat 266) indicating that High Courts will refuse interference under Section 115 even where a lower appellate court has erred in ordering additional evidence, and treated that as supporting the conclusion of non-interference in the present revisional proceedings.
Holding and Implications
Final Holding: The revision petitions are dismissed; the order of the lower appellate court permitting additional evidence and remanding the notice issue to the trial court stands. The opinion concludes: "Petition dismissed."
Direct Consequences for the Parties:
- The remand order remains effective: the plaintiff is permitted to adduce additional evidence on the issue of service of notice before the trial court.
- The parties were directed to appear before the trial court on December 30, 1977, as stated in the opinion.
Broader Legal Implications:
The opinion does not purport to lay down a novel precedent. It affirms the discretion of an appellate court under Order 41, Rule 27 CPC to admit additional evidence in the interest of justice and rejects a restrictive view (attributed to Anant Singh J.) that would disallow presumptions arising from postal endorsements; it also reiterates that any such presumption is rebuttable. The judgment therefore upholds the established principles regarding appellate discretion and the rebuttable character of presumptions under Section 114 of the Evidence Act and Section 27 of the General Clauses Act, but it does not claim to establish a new binding precedent beyond the application to the facts of these cases.
Outcome: Revisions dismissed; remand to trial court for receipt of additional evidence on notice issue.
1. These two revisions are directed against an order of remand in suits for ejectment passed by the Sub Judge (CJM) Jammu on 26-10-1974. As a common question of fact and law has been raised in both the revisions, so this judgment will dispose of both of them.
2. Briefly speaking the plaintiff brought two suits for ejectment against Munshi Ram and Mulk Raj in respect of shops situate at Mohalla Ustad.
3. She averred that she had purchased four shops by virtue of a registered sale deed. Out of these four shops two were leased out to the defendants. The plaintiff claimed that she required the shops for purposes of rebuilding as the shops were old and in a dilapidated condition. She further stated that after rebuilding she wanted the shops for her personal use as one of her sons had to start his own business in the shop who was without any work and was dependent upon her for his livelihood. Her further case was that she served notices of ejectment on the defendants through registered post as was apparent from the acknowledgments duly signed by the defendants. The suits were resisted on various grounds. The trial court raised a number of issues and decided all the issues excepting issue of notice in favour of the plaintiff. The trial court held that the plaintiff had failed to prove that notices had been issued to the defendants requiring them to surrender possession of the shops. The suits of the plaintiffs were consequently dismissed on this ground. Aggrieved by the judgments and decress of trial court, the plaintiff went up in separate appeals before the learned Sub Judge, (CJM) Jammu. Before the lower appellate court, applications under O. 41, R. 27 of the CPC were moved by the plaintiff for leave to produce evidence to prove the subject-matter of issue of notices. She submitted that notices for ejectment were posted by mail. These notices were received by defendants-respondents and acknowledgments were duly signed by them. It was expected that the trial court would draw a presumption from the proved facts that the notices were delivered in the due course of postal service. In that view of the matter, the plaintiff was not required to produce any evidence to substantiate this fact; but because of an authority of Justice Anant Singh, an ad hoc Judge of this court, which held that service of notice must be proved by producing evidence and no presumption can be drawn under law, the trial Judge decided issues of notice against her. According to the plaintiff, it was not possible for the appellate court to reach at a correct conclusion as to the service of notice, as no presumption could be drawn according to the aforesaid authority. Therefore, she prayed that she be allowed to produce witnesses to prove service of notice. This application was resisted by the respondent on the ground that the plaintiff had sufficient time to lead evidence to issue of notice, the onus of which was upon her. The application was intended to fill up the lacuna which could not be allowed. The learned appellate court, however, agreed with the plaintiff that it was a fit case where the court should exercise its power in favour of allowing the plaintiff to produce evidence in order to substantiate this issue. The learned court accordingly allowed the application and permitted the plaintiff to adduce additional evidence in order to prove service of notice on the defendants subject to payment of costs. The learned Judge set aside the finding on the issues relating to notices and directed the trial court to give fresh finding thereon after recording additional evidence led by the parties. Aggrieved by this order of the remand, the defendants have come up in revision before this court.
4. Learned counsel appearing for the petitioners has argued that the lower appellate court had illegally exercised its jurisdiction in the matter of allowing the plaintiff to produce additional evidence in terms of O. 41, R. 27 of the CPC. Learned counsel submitted that the onus of these issues was on the plaintiff and, therefore, it was her duty to produce evidence thereon. But as she failed to produce evidence, the only course left open to the trial Court was to record finding on these issues against the plaintiff. The lower appellate court could not fill up the lacuna in the case by allowing the plaintiff to produce additional evidence. According to the learned counsel the presumption to be drawn under Section 114 of the Evidence Act was rebuttable. As the defendants had denied the receipt of notices, therefore, there was no question of drawing any presumption in the case and it, therefore, lay heavily on the plaintiff to discharge the onus which she indeed had failed to discharge.
5. Shri T.C Kotwal appearing for the plaintiff respondent has, on the other hand, submitted that the view taken by Anant Singh J. needs to be reconsidered. He has submitted that under Section 114 of the Evidence Act read with Section 27 of the General Clauses Act a presumption arises with regard to the notice sent by mail. The sending of notice by mail and the endorsement on the acknowledgement constitute official acts and these shall have to be presumed to have been done in the ordinary course of business. In support of his argument he has relied on the observations made by this court in Harjeet Singh v. Parshotam Dass, reported in AIR 1977 NOC 335 Point (E) (J and K) and also AIR 1970 All 446 (FB), Learned counsel has submitted that because of the legal presumption to be drawn no obligation was cast on the plaintiff to have produced any evidence in the trial court on this issue. However, for doing justice in the case, it was within the power of the lower appellate court to allow the appellant to produce evidence on this issue and the power of the lower appellate court was not fettered in any way in arriving at a just decision.
6. To me it appears that during the course of the trial of the case, the plaintiff has felt somewhat confused as regards her legal obligation to prove the fact of service of the notice on the defendants. In my opinion, presumption under Section 114 of the Evidence Act and Section 27 of the General Clauses Act, can be raised only if it was shown that the notice gave correct particulars of the addressee on the notices and on the forms of acknowledgment. Here the defendant had categorically denied the receipt of any notice and had denied to have signed the acknowledgement. It was, therefore, that the trial court placed the onus of the issue on the plaintiff. The presumption that can be drawn under Section 114 of the Evidence Act and Section 27 of the General Clauses Act is, indeed, rebuttable. The lower appellate court however, felt that the ruling of Anant Singh J. had created difficulty in the way of the plaintiff. When all the material issues were decided in favour of the plaintiff and the suit was thrown out only on the technical issue of notice, it was, therefore, a fit case where it should exercise its power under R. 27. Now under R. 27 the appellate court has got power to allow additional evidence not only if it requires such evidence to enable it to pronounce the judgment but also for any other sufficient cause. According to the observations of their Lordships of the Supreme Court, in AIR 1963 SC 1526, there may well be cases where even though the court finds that it is able to pronounce judgment on the state of record, yet if it is of the view that it still considers that in the interest of justice, something that had remained obscure should be filled up so that it can pronounce judgment in a more satisfactory manner, then in that case, the appellate court car ask for additional evidence. Another observation made in AIR 1951 SC 1 is to the effect that where the first appellate court allows the appellant to produce additional evidence to clear up certain matter for the purpose of enabling it to come to a proper decision, the appellate court in second appeal will not interfere in the exercise of that discretion. On this touchstone of reasoning, it is clear that the present cases are ones in which the lower appellate court has properly exercised its discretion and power in allowing the plaintiff to produce additional evidence. As in the case before it, there was no evidence on record on the issue of notice, the appellate court felt that in order to clear the obscure position and also to do complete justice in the case, it was necessary to allow the reception of additional evidence. In that view of the matter, the only course open to the learned Sub Judge (CJM) was to remit the issue to the trial court and allow the plaintiff to produce evidence on this issue. I, therefore, do not find that the lower appellate court has passed an illegal order in the case. The contention of the petitioner is, therefore, overruled.
7. There is yet another aspect of the matter. The view expressed in 1970 Ren CJ 940 : (AIR 1971 J and K 20) by Anant Singh J. and acted upon by the trial court lays down a broad proposition of law. The decision rendered in that case altogether ingores the effect of Section 114(c) and Section 27 of the General Clauses Act. In that view of the matter, it is observed that the view laid down that even in cases in which notice is sent in due course of postal notice on the correct address of the addressee the fact of despatch of notice must be proved, requires reconsideration, I respectfully do not, therefore, agree with this view of the learned Judge. Of course, the presumption to be drawn is rebuttable and can be rebutted by producing evidence.
8. Again in AIR 1970 Pat 266, the view has been laid down by a Division Bench of the Patna High Court, that the High Court will refuse to interfere in exercise of its power under S. 115 even where lower appellate court has committed a legal error in ordering additional evidence.
9. The result is that there is no force in these revision petitions which are hereby dismissed. The parties will appear before the trial court on December 30, 1977.
10. Petition dismissed.
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