# Krishna Kumar Gupta Revisionist v. Manoj Kumar Sahu 1698 INDIAN LAW REPORTS ALLAHABAD SERIES

- **Citation:** (2022) 9 ILRA 1697
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2022-08-06
- **Case number:** S.C.C. Revision No. 144 of 2018
- **Bench:** Neeraj Tiwari
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/krishna-kumar-gupta-revisionist-v-manoj-kumar-sahu-1698-indian-law-reports-49064
- **Pages:** 19

## Headnote

G.A., Sri Anurag Kumar Singh, Sri Neeraj
Tiwari, Sri Sanjay Kumar Yadav, Sri Gyan
Prakash (Sr. Advocate), Sri Vinay Saran (Sr.
Advocate), Sri Alok Kumar, Sri Alok Kumar
Dubey, Sri Saumitra Dwivedi, Sri Vinay
Prakash Shukla, Sri Rishi Shankar Dwivedi.

A. Civil Law - Transfer of Property
Act,1882-Section 106-Evidence Act,1872Section 114-General Clause Act, 1897Section 27-Notice-Letter was sent through
registered post on correct address, which
was returned back with endorsement of
postman-Notice under section 106 of the
Act, shall be treated to be sufficient for
filing SCC suit.(Para 1 to 31)

B. From the perusal of Section 27 of
Act,1897, it clearly transpires that service
shall be deemed to be affected by properly
addressing, pre paying postal charges and
posting
by
registered
post,
a
letter
containing the document shall be treated
to be sufficient unless the contrary is
proved. It shall also be seen in light of
Section 114 (f) of of Act, 1872 which
provides
that in
common
course
of
business has to be followed and in present
case, in light of Section 27 of Act,1897,
common course of business is that letter
has
to
be
sent
alongwith
proper
addressee, paying postal charges, having
documents and further it will be presumed
that address shall receive the same unless
address is not correct. (Para 25)
The revision is dismissed. (E-6)

List of Cases cited:

## Text

_Characters 0–39,987 of 65,113. This is a partial read: ask again with offset=39987 for what follows._

9 All. Krishna Kumar Gupta Vs. Manoj Kumar Sahu
1697
though he may not be a person in favour of
or against whom a decree is to be made.

41.4. If a person is not found to be
a proper or necessary party, the court does
not have the jurisdiction to order his
impleadment against the wishes of the
plaintiff.

41.5. In a suit for specific
performance,
the
court
can
order
impleadment of a purchaser whose conduct is
above board, and who files application for
being joined as party within reasonable time
of his acquiring knowledge about the pending
litigation.

41.6. However, if the applicant is
guilty of contumacious conduct or is
beneficiary of a clandestine transaction or a
transaction made by the owner of the suit
property in violation of the restraint order
passed by the court or the application is
unduly delayed then the court will be fully
justified
in
declining
the
prayer
for
impleadment."

14. Admittedly, defendant no. 3 is
claiming right over the land for which relief
for permanent injunction has been sought by
plaintiff, and her name has been mutated on
revenue records on the basis of the Will
executed by her father in the year 2002 and is
continuing over the possession since then.
The defendant no. 3 is a necessary party in
view of fact that her name has already been
recorded in the revenue records on the basis
of Will and plaintiff had sought relief of
permanent injunction against defendants.

15. Though, in the suit filed by the
plaintiff relief for declaration as well as
injunction has been sought, now at a later
stage, the plaintiff cannot get the suit amended
to the extent by deleting name of defendant no.
3 on the ground that only declaration as a
Mahant has been sought.

16. The trial court rightly rejected the
application filed under Order 6 Rule 17 C.P.C.
on the ground that in case the name of
defendant no. 3 is deleted from the array of
parties, it will give cause to the multiplicity of
litigation. In Anil Kumar Singh (supra), the
Hon'ble Apex Court had rightly held that all
parties to dispute relating to a subject-matter
should be brought on record and dispute be
determined in their presence so as to avoid
multiplicity of proceedings.

17. It is not in dispute that name of
defendant no. 3 is recorded in the revenue
records over the property in dispute for which
the injunction has been sought by the plaintiff,
while the first relief claimed is for declaring
the plaintiff as Mahant of Sant Kabir Math. In
case the name of defendant no. 3 is deleted it
would lead to multiplicity of litigation.

18.

Considering
the
facts
and
circumstances of the case, this Court finds that
no interference is required in the order dated
08.01.2021 passed by court below rejecting
the application for amendment.

19. The revision fails and is hereby
dismissed.
----------
(2022) 9 ILRA 1697
REVISIONAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 06.08.2022

BEFORE

THE HON'BLE NEERAJ TIWARI, J.

S.C.C. Revision No. 144 of 2018

Krishna Kumar Gupta ...Revisionist
Versus
Manoj Kumar Sahu ...Opposite Parties
1698 INDIAN LAW REPORTS ALLAHABAD SERIES
Counsel for the Revisionist:
Sri Vineet Vikram, Sri Imran Ullah, Sri G.S.
Chaturvedi (Senior Counsel)

Counsel for the Opposite Parties:
G.A., Sri Anurag Kumar Singh, Sri Neeraj
Tiwari, Sri Sanjay Kumar Yadav, Sri Gyan
Prakash (Sr. Advocate), Sri Vinay Saran (Sr.
Advocate), Sri Alok Kumar, Sri Alok Kumar
Dubey, Sri Saumitra Dwivedi, Sri Vinay
Prakash Shukla, Sri Rishi Shankar Dwivedi.

A. Civil Law - Transfer of Property
Act,1882-Section 106-Evidence Act,1872Section 114-General Clause Act, 1897Section 27-Notice-Letter was sent through
registered post on correct address, which
was returned back with endorsement of
postman-Notice under section 106 of the
Act, shall be treated to be sufficient for
filing SCC suit.(Para 1 to 31)

B. From the perusal of Section 27 of
Act,1897, it clearly transpires that service
shall be deemed to be affected by properly
addressing, pre paying postal charges and
posting
by
registered
post,
a
letter
containing the document shall be treated
to be sufficient unless the contrary is
proved. It shall also be seen in light of
Section 114 (f) of of Act, 1872 which
provides
that in
common
course
of
business has to be followed and in present
case, in light of Section 27 of Act,1897,
common course of business is that letter
has
to
be
sent
alongwith
proper
addressee, paying postal charges, having
documents and further it will be presumed
that address shall receive the same unless
address is not correct. (Para 25)
The revision is dismissed. (E-6)

List of Cases cited:

1. Shamim Ahmad Alvi Vs Azizul Rahman Khan
Second Appeal No. 979 of 1972 Shiv Narayan
Goswami Vs Jagdish Prasad Gupta (2015) 3 ARC 171

2. Satish Chandra @ Satish Pandit Vs Manohar
Lal Gera (2017) 1 ARC 470
3. Rama Devi Vs Ram Prakash1(984) LawSuit
(All) 98

4. A. Rama Rao & ors. Vs Raghunath Patnaik &
ors. (2007) 68 ALR 464

5. Ganga Ram Vs Phulwati (1970) SCC Online All
42

6. Ms/. Madan & Co. Vs Wazir Jaivir Chand
(1988) 0 Supreme (SC) 715

7. Subhas Chandra Mitra Vs Netai Chand Dey
(2004) 21 AIC 583

8. Sharda Prasad @ Chhulli Vs A.D.J.Alld & ors.
(2005) 3 AWC 2417

9. C.C. Alavi Haji Vs Palapetty Md & anr. (2007)
5 Supeme 277

10. Ghulam Waris Khan Vs LT Col Ajeet Singh
(2008) Supreme (All) 134

11. Mohanlal Manna Vs Lakshmi Prasad Shaw
Second Appeal No. 732 of 1999

12. Smt. Vandana Gulati Vs Gurmeet Singh @
Mangal Singh (2013) 2 ADJ 281

13. Ajeet Seeds Ltd Vs K. Gopala Krishnaiah
(2014) 12 SCC 685

14. Alok Kumar Kaushik Vs O.P. Shah & anr.
(2017) 0 Supreme (All) 1170

15. Jain Developers & ors Vs Raja R. Chhabria &
ors. Commercial Appeal No. 168 of 2017

16. P.T. Thomas Vs Thomas Job (2005) 6 SCC
478.

17.
Lakshmi
Prasad
Sharma
Vs
Thakur
Mahadeoji (1971) All WR HC 622

(Delivered by Hon'ble Neeraj Tiwari, J.)

1. Heard Sri K.K. Arora, learned
counsel for the revisionist and Sri Rakesh
Prasad, learned counsel for opposite
party.
9 All. Krishna Kumar Gupta Vs. Manoj Kumar Sahu
1699

2. Present revision has been preferred
challenging the judgment and decree dated
03.10.2018 passed by Additional District
and Sessions Judge/ F.T.C., Kanpur Nagar
in S.C.C Suit No. 165 of 2015.

3. Learned counsel for the revisionist
submitted that revisionist is tenant and suit
for eviction being SCC Suit No. 165 of 2015
was filed after sending notice dated 6.4.2015
through registered post as required under
Section 106 of Transfer Property Act, 1882
(hereinafter referred to as "Act, 1882"). He
next submitted that said notice was returned
back by the postman on the very next date i.e.
7.4.2015 with remark "nfj;kQr djus ij ?kj okyksa
us crk;k fd izkIrdrkZ vius futh dk;Z ls ckgj x;s gSa
vkus dk dksbZ fuf'pr le; ugha gSA " He next
submitted that as per letter dated 8.6.2015,
same has been returned to addressee i.e. Jai
Prakash Yadav on 10.04.2015. Therefore,
under such facts of the case, once the notice
has not been served and on the very next date
i.e. 7.4.2015, it was returned back with the
endorsement of postman and further, notice
has been sent back to addressee on
10.04.2015, it shall not be treated to be
sufficient. It is settled position of law that
without service of notice under Section 106
of Act, 1882, no SCC Suit can be
maintained. In support of his contention, he
has placed reliance upon the judgements of
this Court in the matter of Shamim Ahmad
Alvi Vs. Azizul Rahman Khan passed in
Second Appeal No. 979 of 1972 decided on
11.3.1972, Shiv Narayan Goswami Vs.
Jagdish Prasad Gupta; 2015(3) ARC 171,
Satish Chandra @ Satish Pandit Vs.
Manohar Lal Gera; 2017 (1) ARC 470 and
Rama Devi Vs. Ram Prakash; 1984
LawSuit (All) 98. He also placed reliance
upon the judgment of Apex Court in the
matter of A. Rama Rao and others Vs.
Raghunath Patnaik and others; 2007 (68)
ALR 464.

4. Learned counsel for opposite party
has not disputed the said fact, but submitted
that sending notice dated 6.4.2015 shall be
treated to be sufficient in light of Section 27
of General Clauses Act, 1897 (hereinafter
referred to as "Act, 1897"). In support of his
contention, he has placed reliance upon the
judgements of Full Bench of this Court in
the matter of Ganga Ram Vs. Phulwati;
1970 SCC Online All 42. He also placed
reliance upon the judgments of Apex Court
as well as different High Courts in the
matters of Ms/. Madan and Co. Vs. Wazir
Jaivir Chand; 1988 0 Supreme (SC) 715,
Subhas Chandra Mitra Vs. Netai Chand
Dey; 2004 (21) AIC 583, Sharda Prasad @
Chhulli Vs. A.D.J., Allahabad and others;
2005 (3) AWC 2417, C.C. Alavi Haji Vs.
Palapetty Muhammed & another; 2007 (5)
Supeme 277, Ghulam Waris Khan Vs. LT
Col Ajeet Singh; 2008 ) Supreme (All) 134,
Mohanlal Manna Vs. Lakshmi Prasad
Shaw passed in Second Appeal No. 732 of
1999 decided on 30.11.2011, Smt. Vandana
Gulati Vs. Gurmeet Singh @ Mangal
Singh; 2013 (2) ADJ 281, Ajeet Seeds
Limited Vs. K. Gopala Krishnaiah; (2014)
12 SCC 685, Alok Kumar Kaushik Vs. O.P.
Shah and another; 2017 0 Supreme (All)
1170, Jain Developers and 3 others Vs.
Raja R. Chhabria and 4 others passed in
Commercial Appeal No. 168 of 2017 In Suit
No. 2808 of 2008 with Chamber Summons
No. 139 of 2017 with Notice of Motion No.
2513 of 2016 In Suit No. 2808 of 2008
decided on 29.01.2018 and P.T. Thomas Vs.
Thomas Job; (2005) 6 SCC 478.

5. I have considered the rival
submissions made by learned counsel for
the parties, perused the relevant provisions
of law as well as judgments relied upon.

6. The controversy before this Court
is as to when service of notice shall be
1700 INDIAN LAW REPORTS ALLAHABAD SERIES
treated sufficient. To deal with present
controversy,
Section
114
of
Indian
Evidence Act, 1872 (hereinafter referred to
as "Act, 1872") as well as Section 27 of
Act, 1897 is relevant provision of law, in
light of which controversy has to be
decided, therefore, the same is quoted
below;

Section 114 of Act, 1872

"Section 114- Court may presume
existence of certain facts.- The Court may
presume the existence of any fact which it
thinks likely to have happened. regard
being had to the common course of natural
events human conduct and public and
private business, in their relation to the
facts of the particular case.

Illustrations

The Court may presume-

(f) That the common course of
business has been followed in particular
cases;

Section 27 of Act, 1897

"27. Meaning of service by post.
-

Where
any
Central
Act
or
Regulation made after the commencement
of this Act authorizes or requires any
document to be served by post, whether the
expression
serve
or
either
of
the
expressions give or send or any other
expression is used, then, unless a different
intention appears, the service shall be
deemed
to
be
effected
by
properly
addressing, pre- paying and posting by
registered post, a letter containing the
document, and, unless the contrary is
proved, to have been effected at the time at
which the letter would be delivered in the
ordinary course of post."

7. Learned counsel for the revisionist
placed reliance upon the judgment of this
Court in the matter of Shamim Ahmad Alvi
(Supra). Relevant paragraphs are quoted
below;

"From his deposition, it is clear
that on the first day the postman could not
meet the appellant. The endorsement on the
cover of the letter was, therefore, made "not
met". Next day, he again went to the
appellant's house but the postman was
informed by the brother of the appellant
that he was out of station and on the
request of the postman, he refused to supply
the
address
of
the
appellant.
The
endorsement of refusal made by the postal
department was on the basis of the report
given by the postman that the brother of the
appellant refused to supply him the address
of the appellant. On the evidence of the
postman, it is not possible to hold that any
offer was made by the postman to the
appellant and in the absence of any offer, it
is illegal to hold that the notice was refused
by the appellant.

It is true that the lower appellate
court has recorded a finding that the
appellant was at Moradabad, as he must
have come to meet the children during Id
holidays and must have remained at
Moradabad as Holi holidays followed the
Id holidays. Sri Bashir Ahmad sought to
challenge even that finding of the lower
appellate court, but it is not necessary to
enter into that question. I assume for the
purposes of this case that the appellant was
present at Moradabad on the relevant date,
but unless the Court recorded a finding that
he was present at home, the endorsement of
refusal by the appellant would be wholly
illegal. There is no finding by the lower
appellate court that the appellant was
present at home. The testimony of the
postman, which is the only evidence on this
material question, does not indicate that
the appellant was present at home. He has
not deposed that he offered the registered
9 All. Krishna Kumar Gupta Vs. Manoj Kumar Sahu
1701
letter to the appellant and he refused to
take the same. His evidence, on the other
hand, clearly goes to show that he was not
present at home and his brother refused to
give the address. It is on this basis that the
postal
department
has
made
the
endorsement of refusal.

In Lakshmi Prasad Sharma v.
Thakur Mahadeoji, (1971 All WR (HC)
622), it was held that unless there was an
offer made, there could be no refusal. In
this view of the matter, the finding that the
appellant refused to receive the notice is
wholly unwarranted on the evidence on the
record. In my opinion, as there was no
service of notice under Section 106 of the
Transfer of Property Act on the appellant,
there was no termination of his tenancy and
the suit for ejectment could not possibly be
decreed."

7. He further placed reliance upon the
judgment of Shiv Narayan Goswami (supra)
and submitted that after considering so many
judgments of Apex Court, Court has taken
same view. Relevant paragraphs are quoted
below;

"The service of notice sent by
registered post can be presumed to have been
served upon the addressee when it is not
returned undelivered or returned with postal
endorsement of 'refusal' etc., but where the
registered letter is received back with
endorsement like "addressee is not available at
the address" or "not met" or "out of station"
etc., which shows that there was no occasion
for postal authority to offer the letter to the
addressee and there was no act on the part of
addressee having the effect of denying receipt
of such letter, such presumption of service in
respect of registered letter cannot arise.

Section 27 of General Clauses
Act, 1897 (hereinafter referred to as "Act,
1897") reads as under:

"27. Meaning of service by post.-
Where any Central Act or Regulation made
after the commencement of this Act
authorizes or requires any document to be
served by post, where the expression
"serve" or either of the expressions "give"
or "send" or any other expression is used,
then, unless a different intention appears,
the service shall be deemed to be effected
by properly addressing pre-paying and
posting by registered post, a letter
containing the document, and unless the
contrary is proved, to have been effected at
the time at which the letter would be
delivered in the ordinary course of post."

Here the presumption in respect
of registered letter applies only if otherwise
is not proved. In the present case letters
have been received back with endorsement
"not met" and that being so there cannot be
a presumption that registered letter must be
deemed to have been proved. Here is also
not a case where letter has been received
with endorsement of 'refusal'.

In Sukumar Guha Vs. Naresh
Chandra Ghosh AIR 1968 Cal. 49, a Single
Judge (Hon'ble Amresh Roj, J.) referring to
Section 114, Illustration (f) of Act, 1872,
Section 106 of Act, 1882 and Section 27 of
Act, 1897 said that presumption under
Section 27 of Act, 1897 can arise only when
a notice is sent by registered post while
there may arise a presumption under
Section 114 of Act, 1872 when notice is sent
by ordinary post or under certificate of
posting.
Both
the
presumptions
are
rebuttable. When the cover containing
notice has been returned to the sender by
postal authorities, then that fact is direct
proof of the fact that the notice sent by post
was not delivered to the party to whom it
was addressed. Similarly, presumption
under Section 114, illustration (f) of
Evidence Act also, in my view, has no
application in the case in hand.
1702 INDIAN LAW REPORTS ALLAHABAD SERIES

The court below, therefore, in
holding that since letters were sent by
registered post, they will must be deemed to
have been delivered to the addressee and
the mere fact that letters have been
received with endorsement that addressee
did not meet would make no difference, in
my view, is not correct. Since no valid
notice was served upon revisionist, it
cannot be said that tenancy was validly
terminated entitling revisionist to have a
decree of eviction against him."

8. He also placed reliance upon the
judgment of this Court in the matter of
Satish Chandra @ Satish Pandit (supra)
and submitted that in that case too, Court
has taken the similar view. Relevant
paragraphs are quoted below;

"The basic question which arises
for consideration is the validity of the
notice determining tenancy and its services
in the absence of which the suit could not
have decreed.

The tenancy of the defendant
revisionist is said to have been determined
vide notice dated 02.01.2009 which was
brought on record. The trial court while
deciding the issues No. 3 and 4 regarding
the validity of the notice and if the
defendant revisionist is liable to be evicted
on its basis has recorded a finding that
since the notice dated 02.01.2009 (Paper
No.7Ga) has been filed in evidence it
clearly shows that the tenancy of the
defendant revisionist has been determined.

In the later part of the finding, the
court below poses a question as to whether
the notice was served upon the defendant
revisionist but solely on the reasoning that
the copy of the notice is on record held that
the tenancy has been determined without
recording any specific finding with regard
to the service of the notice.

In view of above, there is no
finding by the court below regarding the
service of notice dated 02.01.2009 upon the
defendant revisionist.

Sri B.N. Rai, learned counsel
appearing for the plaintiff respondent has
pointed
out
that
the
notice
dated
02.01.2009 was sent to the defendant
revisionist by registered post and it was
served upon him on 04.01.2009. The copy
of the notice, its dispatched receipt dated
03.01.2009 and acknowledgement (Paper
No. 9 Ga) were filed in evidence and
therefore, it is clear that the notice
determining tenancy was duly served upon
the defendant revisionist.

It is true that the plaintiff
respondent
pleaded
issuance
of
the
aforesaid notice and its service but the
service was denied by the defendant
revisionist in the written statement. The
mere filing of the copy of the notice, its
receipt of dispatched and acknowledgement
is not sufficient to prove that the notice was
served upon the defendant revisionist.

The court below has not recorded
any finding regarding the service of notice.
The tenancy will not stand determined
unless the notice determining tenancy is
reported to be served upon the tenant.

In the absence of any finding in
this regard the court below committed
jurisdictional error in decreeing the suit by
holding that the tenancy of the defendant
revisionist stood determined by the said
notice."

9. Further, he placed reliance upon the
judgment of this Court in the matter of
Rama Devi (supra). Relevant paragraph is
being quoted below;

"When the first appellate Court
has been confused on account of wrong
reading of evidence and has referred to
9 All. Krishna Kumar Gupta Vs. Manoj Kumar Sahu
1703
such wrong evidence naturally it will be
now open to this Court to consider whether
the evidence of Moti Lal, defendant No. 2,
amounts to or serves as rebuttal of the
initial presumption raised. Moti Lal has
stated that the Moran of his son was to be
performed at Vindhyachal and he has sent
a postcard to his mother to reach Mirzapur
by 6th evening so that she can accompany
Moti Lal and others to Vindhyachal for
such Mooran ceremony and his mother so
accompanied and after performing the
Mooran ceremony the party returned to
Varanasi in the night of 8th Aug. 1970. True
that if there is conduct or admission of the
party belying such denial or rendering it
improbable then their denial will not be
proof but the conduct of the party denying
the service does not appear to be such,
rather circumstances are available to
considerate be Moti Lal. (sic) A postcard
was addressed to the mother much earlier
and that evidence could not have been
created later as an after-thought. This
would mean that Mooran was planned as
alleged and even defendant No. 1 the
mother was summoned to accompany.
There is another circumstance, namely, the
leave taken by Moti Lal for 7-8-70, 8th
being Saturday. I am really surprised how
the lack of any permission to leave the
station would be relevant. In fact he was
out of station all right. The plaintiffs case is
that he was in Varanasi proper. The
defendant's case is that Moti Lal had gone
to Mirzapur. I for one cannot apply two
standards. If lack of permission is vague it
is also vague against the case alleging that
defendant No. 2 was at Varanasi so the
question
of
permission
has
become
irrelevant. The first appellate Court has
fallen in error by misreading the evidence
of the plaintiff and this Court can therefore
well interfere with the findings of the first
appellate Court. Moti Lal's evidence
rebutted the presumption of service of
notice by denial and in such situation it
became incumbent upon the plaintiff to
lead further evidence to prove otherwise.
The first appellate Court has observed that
there should have been some additional
evidence including production of the
mother. The mother's production as the
other party would have simply meant
multiplication of evidence in case of denial
when it is a negative statement and the
circumstances supporting or rebutting such
statement are the only relevant facts of
importance and this aspect has been
overlooked by the first appellate Court. The
presumption having stood rebutted the
plaintiff should have given additional
evidence as the burden again shifted upon
the plaintiff to prove the service of notice
which has not been done."

10. Lastly, he placed reliance upon the
judgement of Apex Court in the matter of
A. Rama Rao and others (supra). Relevant
paragraphs are quoted below;

"It appears that stand was that
when the defendant No. 1 on oath stated
that he did not receive the notice allegedly
sent by post, the same would prevail over
the postal remarks that it was "refused"
unless the postman was examined. Further,
the plea that there was no specific averment
regarding sending the notice by post or its
refusal has not been considered. Learned
Counsel for the respondents has submitted
that suit was filed on 5.4.1984 i.e. the date
of refusal overlooks the plea raised to the
effect that the same could have been
brought in by way of an amendment and/or
that the alleged date of refusal was
8.4.1984.

Learned
Counsel
for
the
appellants has produced before us original
paper books filed before the High Court
1704 INDIAN LAW REPORTS ALLAHABAD SERIES
which show the endorsement that their
refusal was 8.4.1984.

In above view of the matter, we
direct the High Court to record its findings
on the question of service of notice and
also the effect of the absence of any definite
and specific plea regarding dispatch of
notice by post and/or its refusal. Even if it
is accepted that the refusal was on 5.4.1984
i.e. the date of filing of the suit nothing
prevented the plaintiff to at least mention
that the notice has been sent by post. The
findings shall be recorded by the High
Court after granting opportunity to the
parties to place their respective stand. The
High Court shall send its findings to this
Court after recording the same within a
period of three months. Call this matter
after four months."

11. Learned counsel for opposite
party submitted that judgments so relied by
learned counsel for the revisionist have not
considered the consistent pronouncements
made by this Court as well as Apex Court
where the Court has taken specific view
that once notice has been sent on correct
address in light of Section 114 of Act, 1872
as well as Section 27 of Act, 1897 shall be
treated sufficient.

12. First, he placed reliance upon
judgment of Full Bench of this Court in the
matter of Ganga Ram (supra). Relevant
paragraph of said judgment is quoted
below;

"The fact that the notice was
returned back to the sender with an
endorsement "Refused" does not in our
opinion, dislodge the presumption that the
registered
notice
had
reached
the
addressee.
On
the
other
hand,
it
strengthens the presumption that the notice
had reached the addressee. It could not be
delivered to him because he refused to
accept it. In view of what we have stated
above, we proceed to answer as follows the
three questions referred to the Full Bench:-
-

Question Our Reply

1. Whether a notice under S. 3 of
the U. P. (Temporary) Control of Rent and
Eviction Act, even if combined with a notice
under S.109 of the Transfer of Property Act,
has to be served on the tenant personally?

Ans. The answer is in the
negative. Even a notice of demand deemed
or presumed to have been served on a
tenant will be "service upon him of notice
of demand".

2. Whether it is incumbent on the
plaintiff to prove the endorsement of refusal
on the notice sent by registered post by
producing the postman or other evidence in
case the defendant denies service on him ?

Ans. The answer is in the
negative.

3. Whether in the circumstances
of the present case the Courts below were
right in raising the presumption under
S.114 of the Evidence Act in favour of the
landlord ?

Ans. The answer is in the
affirmative. The presumption regarding
service of such notice has also be made
under S. 27, General Clauses Act."

13. He next relied upon the judgment
of Apex Court in the matter of M/s. Madan
and Co. (supra) in which the Apex Court
has taken the very same view. Relevant
paragraphs are quoted below;

"We are of opinion that the
conclusion arrived at by the courts below is
correct and should be upheld. It is true that
the proviso to (i) of section 11(1) and the
proviso to section 12(3) are intended for
the protection of the tenant. Nevertheless it
9 All. Krishna Kumar Gupta Vs. Manoj Kumar Sahu
1705
will be easy to see that too strict and literal
a compliance of their language would be
impractical and unworkable. The proviso
insists that before any amount of rent can
be said to be in arrears, a notice has to be
served through posts. All that a landlord
can to comply with this provision is to post
a
prepaid
registered
letter
(acknowledgment
due
or
otherwise)
containing the tenant's correct address.
Once he does this and the letter is delivered
to the post office, he has no control over it.
It is then presumed to have been delivered
to the addressee under s.27 of the General
Clauses Act. Under the rules of the post
office, the letter is to be delivered to the
addressee or a person authorised by him.
Such a person may either accept the letter
or decline to accept it. In either case, there
is no difficulty, for the acceptance or
refusal can be treated as a service on, and
receipt by, the addressee. The difficulty is
where the postman calls at the address
mentioned and is unable to contact the
addressee or a person authorised to receive
the letter. All that he can then do is to
return it to the sender. The Indian Post
Office Rules do not prescribe any detailed
procedure regarding the delivery of such
registered letters. When the postman is
unable to deliver it on his first visit, the
general practice is for the postman to
attempt to deliver it on the next one or two
days also before returning it to the sender.
However, he has neither the power nor the
time to make enquiries regarding the
whereabouts of the addressee; he is not
expected to detain the letter until the
addressee chooses to return and accept it;
and he is not authorised to affix the letter
on the premises because of the assessee's
absence.
His
responsibilities
cannot,
therefore, be equated to those of a process
server entrusted with the responsibilities of
serving the summons of a Court under
Order V of the C.P.C. The statutory
provision has to be interpreted in the
context of this difficulty and in the light of
the very limited role that the post office can
play in such a task. If we interpret the
provision as requiring that the letter must
have been actually delivered to the
addressee, we would be virtually rendering
it a dead letter. The letter cannot be served
where, as in this case, the tenant is away
from the premises for some considerable
time. Also, as addressee can easily avoid
receiving the letter addressed to him
without specifically refusing to receive it.
He can so manipulate matters that it gets
returned
to
the
sender
with
vague
endorsements such as "not found", "not in
station", "addressee has left" and so on. It
is suggested that a landlord, knowing that
the tenant is away from station for some
reasons, could go through the motions of
posting a letter to him which he knows will
not be served. Such a possibility cannot be
excluded. But, as against this, if a
registered letter addressed to a person at
his residential address does not get served
in the normal PG NO 990 course and is
returned, it can only be attributed to the
addressee's own conduct. If he is staying in
the premises, there is no reason why it
should not be served on him. If he is
compelled to be away for some time, all
that he has to do is to leave necessary
instructions with the postal authorities
either to detain the letters addressed to him
for some time until he returns or to forward
them to the address where he has B gone or
to deliver them to some other person
authorised by him. In this situation, we
have to chose the more reasonable,
effective,
equitable
and
practical
interpretation and that would be to read the
words "served" as "sent by post", correctly
and properly addressed to the tenant, and
the word "receipt" as the tender of the letter
1706 INDIAN LAW REPORTS ALLAHABAD SERIES
by the postal peon at the address mentioned
in the letter. No other interpretation, we
think, will fit the situation as it is simply not
possible for a landlord to ensure that a
registered letter sent by him I gets served
on, or is received by, the tenant.

Much emphasis has been placed
by the courts below and counsel for the
landlord on the attempt made by the
landlord to serve the notice on the premises
in the presence of the witnesses. While the
counsel for the landlord would have it that
the steps show the landlord's bona fides
counsel for the tenant submits that the
haste with which the 'substituted service'
was effected and the lack of any real
attempt to find out the whereabouts of the
tenant (who had, according to him, been
compelled to be away at Amritsar for
medical treatment) throw consideration
doubts on the claim of bona fides. We do
not think that any statutory significance
can at all be attached to the service by
affixture claimed to have been effected by
the landlord. The statute prescribes only
one method of service for the notice and
none other. If, as we have held, the
despatch of the notice by registered post
was
sufficient
compliance
with
this
requirement, the landlord has fulfilled it.
But, if that is not so, it is no compliance
with the statute for the landlord to say that
he has served the notice by some other
method. To require any such service to be
effected over and above the postal service
would be to travel outside the statute.
Where the statute does not specify any such
additional or alternative mode of service,
there can be no warrant for importing into
the statute a method of service on the lines
of the provisions of the C.P.C. We would
therefore
not
like
to
hold
that
a
"substituted" service, such as the one
effected by the landlord in the present case,
is a necessary or permissible requirement
of the statute. It may be even an
impracticable,
if
not
impossible,
requirement to expect some such service to
be effected in cases where the landlord
lives outside the town, or the State in which
the premises are situated. If, in the present
case, the landlord attempted such service
because he was in the same town, that can
only show His bona fides and it is only in
this view that we proceed to express our
findings in this regard."

14. He further placed reliance upon
the judgment of Calcutta High Court in the
matter of Subhas Chandra Mitra (supra).
Relevant paragraph is being quoted below;

"So far as the first limb of
argument of Mr. Chatterjee is concerned,
as rightly pointed out by Mr. Dutta, it
appears from the Ext. 3 that the notice was
tendered on several occasions. It is not
mentioned that the tenant was absent or
had the left the premises. No such
endorsement is appearing from Ext. 3. This
position could not be disputed by Mr.
Chatterjee. Admittedly, the notice was
issued in the suit premises. Mr. Dutta had
pointed out and contended that it was the
address recorded with the landlord. That
this was also an address of the tenant is
also not denied by the tenant. It is not a
case made out by the tenant that he had left
the premises altogether and was residing
elsewhere and that he did not come to or
visit the suit premises. He had neither
established nor contended that during the
period when the notice was tendered, he
had never been to the suit premises nor he
had proved that he was absent or had left
the suit premises when the notice was
tendered successively. The fact that the
landlord had addressed the earlier notice at
different place will not invalidate the
second notice addressed to the suit
9 All. Krishna Kumar Gupta Vs. Manoj Kumar Sahu
1707
premises when the notice addressed to
some other place was not the address
recorded with the landlord. The Tenant was
connected with the tenancy and it could not
be presumed that he had never visited the
suit premises when admittedly he was
running a Boarding house in the suit
premises, as was pleaded in the written
statement and in the reply to the first notice
and as well as in the evidence of the DW-1,
given by his son. Therefore, the action of
the postal authority, which is done in the
usual course of business, is to be accepted
as correct unless it is otherwise proved by
the tenant to show that he had no occasion
to be in the premises during that period or
that he had left the suit premises altogether.
When it is not recorded on the postal
endorsement by the postal authority that
the tenant was absent or has left, we cannot
presume that the tenant was absent from
the suit premises during the period when
the notice was tendered or had left the
same. Therefore, we do not find any
perversity in the concurrent finding of the
Courts below that the service was good.
Therefore, we are not inclined to interfere
with the finding with regard to the validity
of the service of notice on the basis of the
endorsement "not claimed" by the postal
authority."

15. He also placed reliance upon the
judgment of this Court in the matter of
Sharda Prasad @ Chhulli (supra) in
which Court has considered the very same
issue and taken same view about service of
notice. Relevant paragraphs are quoted
below;

"The postman initiated and put
the date as 23.3.78.

In the instant case, both the
Courts below after close scrutiny of the
evidence on record found that there was
presumption of service of notice on the
tenant. Section 114 Clause (f) of the
Evidence Act provides that the Court may
presume that the common course of
business has been followed. It was held by
a Full Bench of this Court Ganga Ram's
case (supra) that it is not incumbent on the
plaintiff to prove the endorsement of refusal
on the notice sent by registered post by
producing the postman or other evidence in
case the defendant denies service on him.
The Bench further held that the Court
below was right in raising the presumption
under Section 114 of the Evidence Act in
favour of the landlord where notice sent to
the
tenant
was
returned
with
an
endorsement of refusal. The presumption
regarding service has also to be made
under Section 27 of General Clauses Act.
This was held by the Supreme Court also in
Puwada Venkateshwar Rao v. Chidamana
Ventata Ramana,: AIR 1976 SC 869. The
Apex Court of the country has also held in
Gujarat Electricity Board (supra) that there
is presumption of service of letter sent
under registered cover, if the same is
returned back with a postal endorsement
that the addressee refused to accept the
same. No doubt the presumption is
rebuttable and it is open to the party
concerned to place evidence before the
Court to rebut the presumption by showing
that the address mentioned on the cover
was incorrect or that the postal authorities
never tendered the registered letter to him
or that there was no occasion for him to
refuse the same. The burden to rebut the
presumption lies on the party, challenging
the factum of service. In the instant case,
the petitioner failed to discharged this
burden as he failed to produce material
before the Court to show that the
endorsement of the postman was wrong.
Mere denial by the petitioner in the
circumstances of the case was not sufficient
1708 INDIAN LAW REPORTS ALLAHABAD SERIES
to rebut the presumption. The petitioner
deposed in the Courts below that no
notice was served on him nor he refused
to receive the notice. When he was
confronted that he had refused to receive
the letter in the presence of Ramesh
Chandra, he denied the suggestion. He
however admitted that Ramesh Chandra
resided in front of his house. In this view
of the matter I find that the presumption
was not rebutted by the petitioner and he
failed to show that letter was not sent on
the correct address or there was no
occasion for him to refuse. I therefore,
find that the Courts below rightly found
that notice was served on the tenant by
refusal.

No other point was pressed in
this petition."

16. He next placed reliance upon
the judgment of Apex Court in the
matter of C.C. Alavi Haji (supra) in
which Apex Court has considered the
matter in detail. Relevant paragraphs of
the said judgment are quoted below;

"Therefore, the moot question
requiring consideration is in regard to
the implication of Section 114 of the
Indian Evidence Act, 1872 insofar as the
service of notice under the said proviso
is concerned. Section 114 of the Indian
Evidence Act, 1872 reads as follows:

Section
114
-
Court
may
presume existence of certain facts - The
Court may presume the existence of any
fact which it thinks likely to have
happened, regard being had to the
common course of natural events human
conduct and public and private business,
in their relation to the facts of the
particular case.

Illustrations

The Court may presume--------

(f) That the common course of
business has been followed in particular
cases.

...."

According to Section 114 of the
Act, read with illustration (f) thereunder,
when it appears to the Court that the
common course of business renders it
probable that a thing would happen, the
Court may draw presumption that the thing
would have happened, unless there are
circumstances in a particular case to show
that the common course of business was not
followed.