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Smart Summary

Opinion Summary — R.P. Singh, J.

Factual and Procedural Background

The petitioner challenged an order passed by the VIIIth Additional District Judge, Agra dated 6 April 1988, which dismissed the petitioner's revision and upheld the decree of the Judge, Small Causes Court, Agra. The underlying suit was filed by the plaintiff, Hazari Lal, for ejectment and arrears of rent in respect of house no. 12/66, Dalhai, Tajganj, Agra. The plaintiff alleged that he had purchased the house, that the petitioner was a tenant at a monthly rent of Rs. 10.00 (as stated in the opinion) and that the petitioner had not paid rent from 14 August 1972 to 28 June 1975. The plaintiff relied on a notice of demand dated 5 May 1975 terminating the tenancy. The petitioner disputed that he was a tenant, denied being in arrears, and denied receiving or refusing the registered notice of demand. The Small Causes Court found the petitioner to be the tenant, held that the registered notice was served by refusal, and decreed ejectment and arrears of rent. The petitioner sought revision which was dismissed by the VIIIth Additional District Judge on 6 April 1988. The petitioner then filed the present writ petition under Article 226 of the Constitution challenging those orders.

Legal Issues Presented

  1. Whether the presumption of service of notice under Section 114 of the Indian Evidence Act has been sufficiently rebutted in the present case.
  2. Whether, in exercise of writ jurisdiction under Article 226 of the Constitution, this Court may re-appraise and overturn a concurrent finding of fact (specifically, the finding that the registered notice was duly served by refusal) reached by the courts below.

Arguments of the Parties

Petitioner's Arguments

  • The petitioner categorically denied that the registered notice was served on him and denied ever refusing to accept it.
  • Because the petitioner denied service and refusal, the presumption of service under Section 114 of the Evidence Act was rebutted; the burden therefore shifted to the plaintiff to prove service, including by examining the postman.
  • The petitioner relied on authorities (e.g., K.C. Chaterji v. G.P. Singh; Darshan Kumar v. Raja Ram Jaiswal; Smt. Sona Devi v. District Judge, Basti) for the proposition that a denial by the addressee can rebut the presumption and that the plaintiff must produce cogent evidence of presentation and refusal when the denial is challenged.

Respondent's Arguments

  • The courts below considered the petitioner's evidence denying service and found that evidence not believable; the finding as to service is therefore a pure question of fact.
  • If the evidence offered to rebut the presumption is insufficient or not believable, the factum of rebuttal is not established and the courts below were entitled to hold that the notice was duly served.
  • It is not open to the writ court to re-appreciate evidence and disturb concurrent factual findings reached by the courts below in exercise of Article 226 jurisdiction.

Table of Precedents Cited

Precedent Rule or Principle Cited For Application by the Court
Ram Nath v. Angan (1984 2 A.R.C 290) Where a registered envelope with the correct address is posted and the addressee refused to take it or could not be met, the notice is deemed to have been properly served; it is not necessary to examine the postman. The court relied on this Division Bench decision to hold that where the registered letter was correctly addressed and bore the postman's endorsement of refusal, it was unnecessary for the plaintiff to prove personal service by examining the postman and the notice must be deemed served.
Ganga Ram v. Phoolwati (A.I.R. 1970 Alld. 446) Full Bench authority establishing that a registered envelope correctly addressed, posted and endorsed as refused or not met, supports a finding of deemed service. Ram Nath relied upon the Full Bench in Ganga Ram; the court treated that line of authority as supporting the proposition that a registered letter endorsed as refused gives rise to deemed service.
Bharat Pandey v. IInd Additional District Judge, Varanasi (1984 1 A.R.C 279) There is a rebuttable presumption under Section 114 (Evidence Act) that tender was refused when the registered post bears an endorsement of refusal; Section 27 (General Clauses Act) gives a presumption of genuineness of the endorsement; whether the Section 114 presumption is rebutted is a question of fact for the court. The court agreed with the analysis: the presumption is rebuttable, the presumption under Section 27 is of law, and whether a defendant's denial rebuts the presumption is a factual assessment for the trial court.
Smt. Mithilesh Kumari v. IInd Additional District Judge, Kanpur (1982 1 A.R.C 33) After considering evidence of non-service a court may accept or reject it; the non-production of the postman does not automatically invalidate the plaintiff's case if the defendant's rebuttal evidence is found not believable. The court cited this case to support the proposition that the burden is on the defendant to rebut and that a finding disbelieving the defendant's evidence is a factual appraisal the writ court should not disturb.
Ram Kishan v. Smt. Shanti Devi (1986 1 A.R.C 315) It is not always necessary to examine the postman when the defendant denies refusal; the acceptability of the denial depends on whether other material evidence supports or contradicts it. The court referred to this authority to confirm that non-examination of the postman does not automatically negate the plaintiff's case and that the trial court must weigh other evidence.
Ram Naresh Pathak v. Smt. Shyam Kunwar (1983 2 A.R.C 440) The trial court may reject a bare denial by the defendant if circumstances show the denial is not worthy of reliance. The court used this precedent to emphasize that the trial court can find a denial not credible and deem the notice served on that basis.
K.C. Chaterji v. G.P. Singh (1981 A.R.C 281) There is a presumption of service where a registered notice is correctly addressed with a postal endorsement of "refusal"; the presumption can be rebutted by the addressee's denial, though denial may be disbelieved on other evidence. The petitioner relied on this case; the court acknowledged it but noted that denial may be rejected if not credible — consistent with the courts below having disbelieved the petitioner here.
Darshan Kumar v. Raja Ram Jaiswal (1982 2 A.R.C 239) Presumption of service arises where registered cover is returned with endorsement "refused", but that presumption is rebuttable and depends on evidence led by the parties. The court observed that the principle is applicable but that the courts below had considered the evidence and disbelieved the petitioner's denial, so Darshan Kumar did not assist the petitioner on these facts.
Smt. Sona Devi v. District Judge, Basti (1983 1 A.R.C 799) When service by refusal is alleged, the plaintiff should prove by cogent evidence that the registered cover was presented and declined; the postman's endorsement and testimony are material. The petitioner cited this authority; the court noted it but concluded that the courts below had disbelieved the petitioner's denial after appraisal of evidence, making the non-production of the postman non-determinative here.

Court's Reasoning and Analysis

The court identified the principal question as whether the presumption of service under Section 114 of the Evidence Act had been rebutted by the petitioner's denial. It reviewed a line of authorities which establish these propositions:

  • A registered letter correctly addressed and sent, with postal endorsement of "refused" or "not met", gives rise to a presumption that the notice was tendered and refused, and the notice may be deemed to have been served (Ram Nath; Ganga Ram).
  • The presumption under Section 114 is rebuttable, but whether it has been rebutted is a question of fact for the trial court to decide after weighing all surrounding circumstances and the conduct of the parties (Bharat Pandey; Mithilesh Kumari).
  • It is not an absolute legal rule that the postman must always be examined; the court must consider whether the defendant's denial is believable in the context of other material evidence (Ram Kishan; Ram Naresh Pathak).

Applying these principles to the record, the court noted that there was no dispute that the registered letter bore the correct address and that the postman's endorsement recorded refusal by the petitioner. The courts below had heard the petitioner's evidence denying service and refusal, but after appraisal they disbelieved that evidence. The Judge, Small Causes Court specifically recorded that the postman went for service five times. Having found the defendant's version not credible, the courts below concluded that the presumption of service under Section 114 arises on the facts.

The court emphasized that the question whether the presumption is rebutted is a factual one. Where the trial court (and the revisional court) reach a concurrent conclusion on such a question of fact after evaluating credibility and other evidence, the High Court in writ jurisdiction should not reappraise and disturb that factual finding. The non-examination of the postman, the court held, was not fatal where the defendant's rebuttal was found unworthy of belief; absence of the postman's testimony does not, by itself, negate the plaintiff's case.

Holding and Implications

Holding: The writ petition is DISMISSED.

Implications:

  • The concurrent findings of the Judge, Small Causes Court and the VIIIth Additional District Judge that the registered notice was duly served by refusal on the petitioner stand affirmed by this Court.
  • As a direct effect, the decree for ejectment and arrears of rent (as previously granted by the courts below) is left undisturbed by this writ petition.
  • The court treated the matter as one of factual appreciation of evidence; no new legal principle or binding precedent was created by this decision beyond applying existing authorities on rebuttal of the presumption of service under Section 114 of the Evidence Act and the limits of interference under Article 226 with concurrent findings of fact.

This summary is strictly based on the content and citations appearing in the provided opinion and does not add information beyond that text.

Show full summary ...

    Hira Lal v. Viiith Additional District Judge, Agra

    R.P Singh, J.:— By means of this writ petition under Article 226 of the Constitution, the petitioner has challenged the order passed by the VIIIth Additional District Judge, Agra dated April 6, 1988, dismissing the revision and upholding the order passed by the Judge, Small Causes Court, Agra decreeing the suit for ejectment and arrears of rent against the petitioner.

    2. Brief facts of the case are that the plaintiff Hazari Lal filed a suit for ejectment and arrears of rent against the petitioner on the ground that the plaintiff having purchased the house in dispute i.e house no. 12/66, Dalhai, Tajganj, Agra, was the owner of the same of which the petitioner was tenant on a monthly rent of Rs. 10,00 per month and since the petitioner did not pay any rent inspite of service of notice of demand on him and was in arrears of rent for a period from August 14, 1972 to June 28, 1975, the plaintiff filed a suit for ejectment and arrears of rent against him. The petitioner contested the suit on the ground that he was not the tenant of the disputed accommodation and that he was not in arrears of rent and further denied having received any notice of demand dated May 5, 1975 terminating his tenancy and hence claimed that the suit was liable to be dismissed. The Judge, Small Causes Court appraisal of the evidence on record held that the defendant was tenant of the premises in dispute of which the plaintiff was the owner and the notice of demand was held to be served on the petitioner by refusal and the petitioner having been in arrears of rent and having not paid the same inspite of service of notice of demand on him, decreed the suit for ejectment and arrears of rent. Feeling aggrieved the petitioner went up in revision before the VIIIth Additional District Judge, Agra, respondent no. 1 who also dismissed the revision vide his order dated April 6, 1988. It is these orders which are in challenge before this court.

    3. Heard Sri A.K Banerji for the petitioner and Sri Prakash Krishna for the respondent.

    4. The learned counsel for the petitioner strenuously contended that the notice of demand was not served on him and it was never refused by the petitioner and the presumption that the registered letter correctly addressed was served on the addressee was a rebutable presumption and when in the present case the petitioner had categorically stated that the notice was not served on him nor ever refused by him, the burden shifted on the plaintiff-respondent to prove due service of notice by examining the postman and the postman having not examined in the present case, the presumption was sufficiently rebutted by the denial of the petitioner regarding service of notice and hence the respondents 1 and 2 wrongly decreed the suit holding that the notice was duly served on the petitioner.

    5. The learned counsel for the respondent contended that the respondents 1 and 2 have considered the evidence of the petitioner regarding non-service of notice and the evidence led by the petitioner regarding non-service of notice has not been believed hence the finding of the respondents 1 and 2 on this point is a decision on a pure question of fact. If the evidence in regard to rebuttal is insufficient or is not believable then in that event the factum of rebuttal is not established and hence it is not open to the petitioner to re-agitate this question of fact before this Court in writ jurisdiction.

    6. In view of the submission made by learned counsel for the parties the main question to be decided in the present case whether the presumption of service of notice under Section 114 of the Evidence Act has been sufficiently rebutted in the present case. In the case of Ram Nath v. Angan . 1984 2 A.R.C 290. a Division Bench of this Court held that where registered envelop containing the correct address of tenant is posted to him and if the addressee a tenant either refused to take notice or could not be met, the notice shall be deemed to have been properly served on the addressee. In that case also the defendant had denied to have received the notice. It was contended by the plaintiff in that case that the notice had been sent by registered post to the defendent and hence it should be deemed to have been served on him. It was further contended that since the envelop contained the endorsement of the postman that the defendant refused to accept the envelop, the notice should be deemed to have been served on him. The Division Bench relying on the Full Bench decision of this court reported in Ganga Ram v. Phoolwati . A.I.R 1970 Alld. 446. held that where a registered envelop containing the correct address of the tenant is posted to him and if the addressee tenant either refused to take notice or could not be met, the notice shall be deemed to have been properly served on the addressee. In the present case also there is no dispute that the address on the registered letter containing the notice was correctly written and the endorsement of the postman was that the petitioner had refused to accept the notice. In the circumstances, it was held by the Division Bench case of Ram Nath (supra) that it was not necessary for the plaintiff to prove personal service of notice on the defendant or to examine the postman and the notice must be deemed to have been served on the addressee tenant.

    7. In the case of Bharat Pandey v. IInd Additional District Judge, Varanasi . 1984 1 A.R.C 279. it was held that where there is an endorsement of refusal on the letter sent by registered post to the correct addressee, there is a rebuttable presumption under Section 114 of the Evidence Act that the notice was tendered and refused by the addressee. There is further presumption under Section 27 of the General Clauses Act of the genuineness of endorsement. The distinction between the two presumptions is that the presumption under Section 114 of the Evidence Act may or may not be drawn by the court but the presumption under Section 27 of the General Clauses Act is a presumption of law which has to be drawn by the Court. Once there is a presumption of refusal, it is open to the defendant to rebut the same. The question whether presumption under Section 114 of the Evidence Act is rebutted or not, is always a question of fact and the court should consider, having regard to all the surrounding circumstances and the conduct of the parties concerned. It was further held that there is no rule of law that in a case where there is an endorsement made by the postman of refusal on the letter sent by registered post, the uncorroborated denial by the addressee must in all cases be accepted as correct. It is for the court, on the basis of appreciation of all the facts and circumstances of the case, to decide whether it should or should not believe the denial by the addressee. I am in respectful agreement with the view expressed above. The court is called upon to consider whether the evidence led by the petitioner is believable or not. The finding of the court on this point is a decision on a pure question of fact and if the evidence in regard to rebuttal is insufficient or is not believable then in that event the factum of rebuttal is not established. In the case of Smt. Mithilesh Kumari v. IInd Additional District Judge, Kanpur . 1982 1 A.R.C 33. it was held that after the evidence of non-service of notice is considered by the court, it is open to the court to believe or not to believe the same and the finding by the court on this point regarding service of notice is on pure question of fact. Therefore, if the evidence in regard to rebuttal is insufficient or is not believable then in that case the factum of rebuttal is not established. It was further observed that it is a choice of the plaintiff whether he would examine the postman or not. If the evidence produced in rebuttal is not believed, then the non-production of postman has no effect at all. The burden is on the defendant-tenant to rebut the presumption and lead evidence to establish that the notice is not served. If the court comes to the conclusion that the defendant's evidence is not believable and consequently evidence was found insufficient to establish rebuttal, this is in the realm of appreciation of evidence. A finding based on appreciation of evidence will be a finding on a question of fact.

    8. In the case of Ram Kishan v. Smt. Shanti Devi . 1986 1 A.R.C 315. it has been held that as a matter of law it is not always necessary that when the defendant denies the fact of having refused the notice tendered to him by registered post, the postman should necessarily be examined to rebut that denial by the defendant. The question whether the denial of the defendant was acceptable on the face of it or belied by other material evidence on record, was a question which has to be gone into by the court of fact without being opressed by the circumstance that the postman was not examined. The non-examination of the postman by itself cannot furnish adequate ground in law to negate the case set up by the plaintiff.

    9. In the case of Ram Naresh Pathak v. Smt. Shyam Kunwar . 1983 2 A.R.C 440. it was held that whether there are circumstances on account of which the bare denial by the defendant ought to be accepted is for the trial court to consider and if the trial court comes to the conclusion in the facts and circumstances of the present case, bare denial of the defendant is not worthy of reliance, the trial court would be competent to reject that denial and hold that the notice must be deemed to have been duly served on the evidence and the denial by him was not worthy of credence.

    10. The learned counsel for the petitioner strenuously contended that the petitioner categorically denied that he refused service of notice and clearly stated that no notice was ever served on him by the postman and hence the presumption under Sec. 114 of the Evidence Act is clearly rebutted and in the circumstances it was incumbent on the plaintiff respondent to have produced the postman in support of his case that the notice was offered to the petitioner who refused service of notice and the same having not been done, the respondents 1 and 2 have wrongly held that the notices were duly served by refusal. The learned counsel for the petitioner relied on the decision of K.C Chaterji v. G.P Singh . 1981 A.R.C 281. where it was held that there is a presumption of service of registered notice where the notice is correctly addressed and there is a postal endorsement of “refusal” by the addressee. But the presumption stands rebutted on the denial of that by the addressee. However, in that very case it was observed that it is another matter that the veracity of the defendant tenant's statement might be thrown in doubt by his own conduct or other evidence available on record in which case the denial of the defendant tenant might be rejected on the ground that the same is not worthy of belief. The petitioner also relied on the case of Darshan Kumar v. Raja Ram Jaiswal . 1982 2 A.R.C 239.. In that case also the notice was returned with the postal endorsement “refused”. It was held that presumption of service arises but the said presumption is rebuttable if the defendant denied that he never refused from service being effected on him. It was, however, observed that the question of presumption can be decided only on the basis of evidence led by the parties, in case the statement of the defendant is not disbelieved. In the present case before me the respondents 1 and 2 have appraised the statement of the defendant that he never refused service of notice on him and hence the case of Darshan Kumar (supra) does not apply to the facts of the present case. The learned counsel for the petitioner also relied on the case of Smt. Sona Devi v. District Judge, Basti . 1983 1 A.R.C 799. where it was held that when a notice is tendered by the postman to the addressee, he either accepts it or refuses it. In case he refuses, the postman has to make an endorsement and return the same to the post office. Where the allegation of service by refusal is challenged, it becomes the duty of the plaintiff to prove by cogent evidence that the registered cover containing the notice was duly presented to the addressee and he declined to accept the same. Since in the case before me the respondents 1 and 2 have, upon appraisal of the evidence on record disbelieved the statement of the petitioner that he never declined to accept the notice addressed to him and on examination of the evidence the case of the petitioner was disbelieved on this point and hence the presumption of due service of notice under Section 114 of the Evidence Act clearly arises and the bare denial of the defendant regarding service of notice on him in the facts and circumstances of the present case has not been held to be worthy of reliance. The Judge, Small Causes Court has clearly observed that the postman went for service of notice on the petitioner five times. The question whether the notice was refused by the petitioner or not is a question of fact and the respondents 1 and 2 having disbelieved the version of the petitioner on the point of service of notice on him, it is not open to this Court sitting in writ jurisdiction to reappraise the evidence and to arrive at a finding contrary to those arrived at by respondents 1 and 2. The non-examination of postman regarding the refusal of notice is not fatal to the case. In the present case, the tenant had led evidence to discharge the burden which evidence was considered by the respondents 1 and 2 and they came to the conclusion that the defence evidence was not believable and hence the evidence led by the petitioner was not found sufficient to establish rebuttal. This is clearly in the realm of appreciation of evidence and it is not open to this Court to interfere on this question of fact on reappraisal of the evidence in the exercise of its jurisdiction under Article 226 of the Constitution. Consequently I find that no illegality has been committed by the respondents 1 and 2 in holding that the notices have been duly served on the petitioner.

    11. In the result, I find no merit in this writ petition which is accordingly dismissed.

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    Comments

    Hira Lal v. Viiith Additional District Judge, Agra
    (Jan 1, 1989)