# Prem Bahadur Dalela Revisionist v. Umeshraj Bali

- **Citation:** (2019) 3 ILRA 681
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2019-11-06
- **Case number:** S.C.C. Revision No. 157 of 2015
- **Bench:** Jaspreet Singh
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/prem-bahadur-dalela-revisionist-v-umeshraj-bali-44939
- **Pages:** 19

## Headnote

A. Evidence Law-Indian Evidence Act,
1872 - Section 114 - Illustrations (e) and
(f) - Indian Post Office Act, 1898 -
Sections 3 and 14 - General Clauses Act -
section 27 - Presumption of service of
notice by refusal - Merely making a bald
denial is not sufficient to rebut the
presumption of service of notice by
refusal - Positive evidence required.

Held:- Presumption of service of a letter sent
under registered cover, if the same is returned
back with the postal endorsement that the
addressee refused to accept, is a legal
presumption. The aforesaid presumption can
be rebutted and it is open for a party
concerned to place the 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 primarily lies upon the
party who challenges the factum of service.

Merely making a bald denial to indicate that
the revisionist was at Hardoi is not sufficient
to rebut the presumption of service of notice
by refusal. The revisionist has filed certain
documents which indicate that the revisionist
was working and posted at Hardoi, however,
these documents do not indicate that at the
relevant time and date, the revisionist with his
entire family was actually residing at Hardoi or
at
some
other
address
than
the
one
mentioned in the notice. The revisionist has
also not given any positive evidence to
indicate that he was residing at Hardoi. (Para
20,22)

Revision dismissed (E-5)

List of Cases Cited: -

## Text

_Characters 0–39,770 of 64,077. This is a partial read: ask again with offset=39770 for what follows._

3 All. Prem Bahadur Dalela Vs. Umeshraj Bali
681
months. The Registrar General shall place
it on the record.

37. This Public Interest Litigation is
disposed of in the above terms.
----------
(2019)11ILR A681

REVISIONAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 06.11.2019

BEFORE
THE HON'BLE JASPREET SINGH, J.

S.C.C. Revision No. 157 of 2015

Prem Bahadur Dalela ...Revisionist
Versus
Umeshraj Bali ...Opposite Party

Counsel for the Revisionist:
Sri Amrendra Nath Tripathi

Counsel for the Opposite Party:
Sri Hari Mohan Mathur, Sri Adnan Ahmad,
Punita Pandey

A. Evidence Law-Indian Evidence Act,
1872 - Section 114 - Illustrations (e) and
(f) - Indian Post Office Act, 1898 -
Sections 3 and 14 - General Clauses Act -
section 27 - Presumption of service of
notice by refusal - Merely making a bald
denial is not sufficient to rebut the
presumption of service of notice by
refusal - Positive evidence required.

Held:- Presumption of service of a letter sent
under registered cover, if the same is returned
back with the postal endorsement that the
addressee refused to accept, is a legal
presumption. The aforesaid presumption can
be rebutted and it is open for a party
concerned to place the 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 primarily lies upon the
party who challenges the factum of service.

Merely making a bald denial to indicate that
the revisionist was at Hardoi is not sufficient
to rebut the presumption of service of notice
by refusal. The revisionist has filed certain
documents which indicate that the revisionist
was working and posted at Hardoi, however,
these documents do not indicate that at the
relevant time and date, the revisionist with his
entire family was actually residing at Hardoi or
at
some
other
address
than
the
one
mentioned in the notice. The revisionist has
also not given any positive evidence to
indicate that he was residing at Hardoi. (Para
20,22)

Revision dismissed (E-5)

List of Cases Cited: -

1. Ram Murti Devi Vs Pushpa Devi & ors.
(2017) 15 SCC 230.

2. Trilok Singh Chauhan Vs Ram Lal (2018) 2
SCC 566.

3. Parimal Vs Veena @ Bharti (2011) 3 SCC
545.

4.Gangaram Vs Smt. Foolwati 1970 SCC
Online All 42 (Full Bench)

5.Shiv Murat & anr. Vs St. of U.P. 2014 2014
SCC Online All 6135.

6. Ugrasen Vs Parmeshwari Devi 2014 (9) ADJ
356

(Delivered by Hon'ble Jaspreet Singh, J.)

1. Heard Sri Amrendra Nath
Tripathi,
learned
counsel
for
the
revisionist and Sri Adnan Ahmad, learned
counsel for the opposite parties.

2. The instant SCC Revision has
been preferred under Section 25 of the
Provincial Small Cause Courts' Act, being
aggrieved against the judgment dated
682 INDIAN LAW REPORTS ALLAHABAD SERIES
07.05.2015 passed by the Additional
District Judge, Court No. 9, Lucknow
(acting as SCC Court) in SCC Suit No. 18
of 1999 by means of which the suit of the
opposite parties has been decreed.

3. Sri Amrendra Nath Tripathi has
challenged the impugned judgment dated
07.11.2015 primarliy on the ground that
the notice for termination of tenancy
dated 16.03.1999 which is alleged to have
been served on the revisionist by refusal,
has wrongly been held to be served ,
inasmuch, as there was clear evidence to
the effect that on the alleged date when
the said notice is said to have been
refused by the revisionist and was
addressed at Lucknow but at the given
time he was on his posting at Hardoi and
accordingly the presumption which has
been drawn is incorrect which has
resulted in miscarriage of justice. The
second ground raised by Sri Tripathi is
that the rate of rent was Rs. 100/- per
month which has erroneously been held
by the Trial Court to be Rs. 600/-,
whereas there was enough material on
record including the statement of the
opposite party no. 1 which indicated that
he had no material to prove that the rate
of rent was Rs. 600/- per month and
despite the said statement, the Court
below has ignored the same and has
upheld the rate of rent to be Rs. 600/-
which is erroneous. Another ground has
been raised though feebly argued that the
opposite party no. 1 is not the ownerlandlord rather the original landlord was
one Sri K.N. Mathur and upon his death
one Smt. Veena Srivastava had claimed
title over the property in question.

4. It has also been submitted that in
the SCC proceedings Order 14 of the
C.P.C. is not applicable, however, in the
present case, the Trial Court by means of
its order dated 19.03.2005 had framed 7
issues. It has been submitted that though
the framing of issues is not necessary but
at the same time once the Court has
proceeded to frame the issue then it was
incumbent on the Court to have decided
all the issues. It has been submitted that
from the perusal of the impugned
judgment it would indicate that the Court
has not decided all the issues and rather
has encapsulated the controversy in four
issues whereas issue no. 6 and 7 which
were framed on 13.09.2005 have not been
decided at all. On the strength of the
aforesaid
submissions
it
has
been
submitted that the judgment passed by the
Court dated 07.11.2015 is bad in the eyes
of law and cannot sustain the judicial
scrutiny.

5. Per contra, Sri Adnan Ahmad,
learned
counsel
appearing
for
the
opposite parties has submitted that the
finding regarding the service of notice is
purely, a finding of fact and in view of the
limited jurisdiction exercised by the Court
in terms of Section 25 of the Provincial
Small Cause Courts Act, such finding
cannot be disturbed unless they are
perverse. It has further been submitted
that the original notice was returned
unserved with the endorsement of refusal,
was placed on the record. It has been
submitted that it is not the argument of
the learned counsel for the revisionist that
the notice was incorrectly addressed. It
has also not been indicated by the
revisionist that if he alone was not present
at Lucknow then whether his entire
family had also moved out of Lucknow. It
has also been argued that on the given
date when the notice was refused, the
revisionist was in Lucknow as he was
placed under Suspension and was present
3 All. Prem Bahadur Dalela Vs. Umeshraj Bali
683
at Lucknow at the relevant time. It has
further been submitted that even otherwise
once the notice was returned unserved with
the endorsement of refusal then it was the
duty of the revisionist to have rebutted the
aforesaid
presumption of
service
by
examining the postman, however, by
merely
making
a
bald
denial
the
presumption cannot stand rebutted and in
the present case the revisionist has not
undertaken any exercise to rebut the
presumption nor attempted to produce the
postman as a witness. In the aforesaid
circumstances, the presumption of service
by refusal has rightly been recorded by the
Trial court which requires no interference.

6. It has also been argued by Sri
Ahmad that as far as the rate of rent is
concerned, the court below has relied
upon a document bearing Paper No. C-48
dated 24.07.1990 which contained the
handwriting
and
signatures
of
the
revisionist
himself.
The
aforesaid
document was a rent note which was
admitted by the revisionist. The rate of
rent was clearly mentioned in the said
rent note, accordingly, the Court below
has rightly held the rate of rent to be Rs.
600/- per month and this again being
finding of fact cannot be upset in
revisional jurisdiction under Section 25 of
the Provincial Small Cause Courts' Act.

7. Sri Ahmad has also submitted
that
the
reference
to
Smt.
Veena
Srivatastava who was claiming title is
also misconceived, inasmuch as, she had
attempted to seek her impleadment in the
present SCC suit which was rejected.
Moreover,
her
title
suit
seeking
declaration and injunction against the
opposite party no. 1 was also contested
wherein the opposite party no. 1 had also
led his counter claim and the same was
finally decided in favour of the opposite
party no. 1 by means of judgment and
decree passed by the Civil Judge (Senior
Division) Mohanlal Ganj, Lucknow in
R.S. No. 149 of 2007 wherein the counter
claim of the opposite party no. 1 was
decreed on 01.09.2015. It has also been
urged that this issue is not open for the
revisionist, inasmuch as, he being a tenant
has no right to challenge the title of his
landlord.

8. Sri Adnan Ahmad Ahmad lastly
submitted that though in the proceedings
governed by the Provincial Small Cause
Court's Act , Order 40 C.P.C. prescribes
that the provisions of Order 14 C.P.C. are
not applicable in proceedings governed
by the Provincial Small Cause Court's
Act. In view thereof, even if the issues
were framed by the Trial Court on
19.03.2005 the same do not give any
leverage to the revisionist. From the
impugned judgment, it was pointed out
that after noticing the various contentions
of the parties, the Judge, Small Causes
had framed the points for determination
which have been decided. The points for
determination is different to the issues as
framed. Moreover, as per Order 20 Rule 4
C.P.C., the judgment of the Small Cause
Court need not contain more than the
points of determination and the decision
thereon. Once the legislative mandate has
been complied with as shall be evident
from the impugned judgment merely
because at some earlier point of time, the
issues were framed and not all issues
decided thereafter it will not vitiate the
judgment more so when the revisionist
has failed to point out what prejudice has
been caused to him. In view of the above,
the opposite party has prayed that the
revision lacks merit and deserves to be
dismissed.
684 INDIAN LAW REPORTS ALLAHABAD SERIES

9. The Court has heard the learned
counsel for the parties and also perused
the record.

10. Briefly the facts giving rise to
the above revision are being noticed
hereinafter first:-

11. One Sri Kameshwar Nath
Mathur,
the
original
plaintiff
had
instituted a suit for arrears of rent and
ejectment against the revisionist Prem
Bahadur Dalela which was registered as
SCC Suit No. 18 of 1999. It was pleaded
that the property in question i.e. House
No. 295/309, Asharfabad, Deen Dayal
Road, P.S. Chowk, Lucknow of which Sri
K.N. Mathur was its owner and landlord,
a part of the said house was let out to the
revisionist on a monthly rent of Rs. 600/-
per
month.
The
tenanted
portion
comprised of two rooms, a kitchen, a
latrine and a bathroom. It was further
pleaded that the revisionist paid rent at
the rate of Rs. 600/- per month, apart
from the aforesaid, the electricity charges
were paid separately. The revisionist
committed default in payment of rent
from March, 1993 and despite having
made several requests to vacate the
premises,
the
revisionist
failed.
Ultimately, Sri K.N. Mathur through his
Advocate sent a composite notice for
demand and ejectment dated 16.03.1999
which was sent to the revisionist at his
correct address through registered post.
The said notice was served on the
revisionist on 23.03.1999 by refusal.
Since at the time of filing of the Suit in
the year 1999 the rent had accumulated
for 72 months, however, on account of
the law of limitation Sri K.N. Mathur
claimed rent only for the last 36 months
i.e. from May 1996 till April 1999 at the
rate of Rs. 600 per month amounting to
Rs. 21,460/-as well as the damages for
wrongful use and occupation at the rate of
Rs. 20/- per day with the effect from
24.04.1999 till 05.05.1999.

12.

The
revisionist/defendant
contested the proceedings by filing his
written statement which was later on
amended. The main defence of the
revisionist was the rate of rent of the
premises in question was Rs. 100/- per
month and not 600/- as alleged by the
plaintiff. Even the extent of tenanted
accommodation was disputed and it was
pleaded that the revisionist had only one
room, one store room a latrine and a
bathroom apart from a kitchen as part of
his tenancy. The revisionist disputed the
service of notice and specifically pleaded
that at the time when the alleged notice is
said to have been served on the
revisionist, he was posted at Hardoi and
was on his official duty. The demand for
arrear of rent was also disputed coupled
with the fact that since the landlord had
failed to accept the rent, hence, the
revisionist started depositing the rent
before the Court of Civil Judge (Junior
Division), North, Lucknow in terms of
Section 30 (1) of the U.P. Act 13 of 1972
Act which was registered as Misc. Case
No. 199 of 1998 and later the said suit
was dismissed for default for which the
tenant had moved an application for
restoration, however, the same also came
to be dismissed. It was also pleaded that
the plaintiff had instituted the suit to
trouble and harass the tenant and as such
neither there were arrears of rent nor the
alleged notice for demand and ejectment
was served on the tenant, accordingly, the
suit was liable to be dismissed.

13. It will be relevant to mention
that
during
the
pendency
of
the
3 All. Prem Bahadur Dalela Vs. Umeshraj Bali
685
proceedings before the Trial Court, Sri
K.N. Mathur expired and in his place Sri
Umesh Raj Bali was substituted. The
parties filed their documentary evidence.
The plaintiff examined himself as P.W. 1
whereas the revisionist appeared as the
sole defendant-witness.

14. The Trial Court after considering
the respective pleadings as well as
evidence, both oral as well as documentary,
alongwith the case laws cited by the parties
decreed the suit of the plaintiff-opposite
party by means of judgment dated
07.11.2015. The Trial Court framed had
four points for determination, which
encompassed the controversy emerging
from the pleadings of the parties. The Trial
Court recorded a finding that the notice for
demand of rent and ejectment was duly
served on the defendant-revisionist. It also
held that the rate of rent was Rs. 600/-per
month and the defendant-revisionist was a
defaulter in arrears and consequently
decreed the suit.

15. It is this judgment dated
07.11.2015 which has been assailed
before this Court by means of the instant
revision on the ground as already noticed
hereinabove first.

16. Before proceeding further, it
will be apposite to notice the scope of
Section 25 of the Small Cause Courts Act,
the decision of the Apex Court in the case
of Ram Murti Devi Vs. Pushpa Devi and
Others reported in 2017 (15) SCC 230
while considering the scope of revision
under Section 25 of the Provincial Small
Cause Courts' Act has stated in following
words whcih reads as under:-

"29. The High Court was
hearing a revision under Section 25 of the
1887 Act. What is the scope of Section 25
of the 1887 Act came for consideration
before this Court in Hari Shankar v. Rao
Girdhari Lal Chowdhury [Hari Shankar
v. Rao Girdhari Lal Chowdhury, AIR
1963 SC 698] , where this Court laid
down the following in para 9: (Hari
Shankar case [Hari Shankar v. Rao
Girdhari Lal Chowdhury, AIR 1963 SC
698] , AIR p. 701)

"9. The section we are dealing
with, is almost the same as Section 25 of
the Provincial Small Cause Courts Act.
That section has been considered by the
High Courts in numerous cases and
diverse interpretations have been given.
The powers that it is said to confer would
make a broad spectrum commencing, at
one end, with the view that only
substantial errors of law can be corrected
under it, and ending, at the other, with a
power of interference a little better, than
what an appeal gives. It is useless to
discuss those cases in some of which the
observations were probably made under
compulsion of certain unusual facts. It is
sufficient to say that we consider that the
most accurate exposition of the meaning
of such sections is that of Beaumont, C.J.
(as he then was) in Bell & Co. Ltd. v.
Waman Hemraj [Bell & Co. Ltd. v.
Waman Hemraj, 1937 SCC OnLine Bom
99 : AIR 1938 Bom 223] where the
learned Chief Justice, dealing with
Section 25 of the Provincial Small Cause
Courts Act, observed: (SCC OnLine Bom
paras 3-4)

''3. The object of Section 25 is
to enable the High Court to see that there
has been no miscarriage of justice, that
the decision was given according to law.

4.
The
section
does
not
enumerate the cases in which the Court
may interfere in revision, as does, Section
115 of the Code of Civil Procedure, and I
686 INDIAN LAW REPORTS ALLAHABAD SERIES
certainly do not propose to attempt an
exhaustive definition of the circumstances
which may justify such interference; but
instances which readily occur to the mind
are cases in which the Court which made
the order had no jurisdiction, or in which
the Court has based its decision on
evidence which should not have been
admitted, or cases where the unsuccessful
party has not been given a proper
opportunity of being heard, or the burden
of proof has been placed on the wrong
shoulders. Wherever the court comes to
the conclusion that the unsuccessful party
has not had a proper trial according to
law, then the Court can interfere. But, in
my opinion, the Court ought not to
interfere merely because it thinks that
possibly the Judge who heard the case
may have arrived at a conclusion which
the High Court would not have arrived at.'

This observation has our full
concurrence."

30. Further, in Mundri Lal v.
Sushila Rani [Mundri Lal v. Sushila Rani,
(2007) 8 SCC 609] which was a case
arising from Act 13 of 1972 and a
revisional jurisdiction under Section 25 of
the 1887 Act, in paras 22 and 23, this
Court held that the jurisdiction under
Section 25 of the Provincial Small Cause
Courts Act, is wider than Section 115
CPC. It is further held that pure finding of
the fact based on appreciation of evidence
although may not be interfered but there
are several circumstances in which the
Revisional Court can interfere with the
finding of fact. In paras 22 and 23
following was stated: (SCC pp. 617-18)

"22. There cannot be any doubt
whatsoever that the revisional jurisdiction
of the High Court under Section 25 of the
Provincial Small Cause Courts Act is
wider than Section 115 of the Code of
Civil Procedure. But the fact that a
revision is provided for by the statute, and
not an appeal, itself is suggestive of the
fact that ordinarily revisional jurisdiction
can be exercised only when a question of
law arises.

23. We, however, do not mean
to say that under no circumstances finding
of fact cannot be interfered therewith. A
pure finding of fact based on appreciation
of evidence although
may not be
interfered with but if such finding has
been
arrived
at
upon
taking
into
consideration irrelevant factors or therefor
relevant fact has been ignored, the
Revisional Court will have the requisite
jurisdiction to interfere with a finding of
fact. Applicability of the provisions of
Section 2(2) of the Act may in that sense
involve determination of mixed question
of law and fact."

17. Similarly in the case of Trilok
Singh Chauhan Vs. Ram Lal, reported in
2018 (2) SCC 566, once again while
considering the scope of Revision under
Section 25 of the Provincial Small Cause
Courts Act the Apex Court has stated and
the relevant portion reads as under:-

"14. The High Court was
exercising the jurisdiction under Section
25 of the 1887 Act, which provision is as
follows:

"25. Revision of decrees and
orders of Courts of Small Causes.--The
High Court, for the purpose of satisfying
itself that a decree or order made in any
case decided by a Court of Small Causes
was according to law, may call for the
case and pass such order with respect
thereto as it thinks fit."

15. The scope of Section 25 of
the 1887 Act, came for consideration
before this Court on several occasions. In
Hari Shankar v. Rao Girdhari Lal
3 All. Prem Bahadur Dalela Vs. Umeshraj Bali
687
Chowdhury
[Hari
Shankar
v.
Rao
Girdhari Lal Chowdhury, AIR 1963 SC
698] , in paras 9 and 10, this Court laid
down the following: (AIR p. 701)

"9. The section we are dealing
with, is almost the same as Section 25 of
the Provincial Small Cause Courts Act.
That section has been considered by the
High Courts in numerous cases and
diverse interpretations have been given.
The powers that it is said to confer would
make a broad spectrum commencing, at
one end, with the view that only
substantial errors of law can be corrected
under it, and ending, at the other, with a
power of interference a little better than
what an appeal gives. It is useless to
discuss those cases in some of which the
observations were probably made under
compulsion of certain unusual facts. It is
sufficient to say that we consider that the
most accurate exposition of the meaning
of such sections is that of Beaumont, C.J.
(as he then was) in Bell & Co. Ltd. v.
Waman Hemraj [Bell & Co. Ltd. v.
Waman Hemraj, 1937 SCC OnLine Bom
99 : (1938) 40 Bom LR 125 : AIR 1938
Bom 223] , where the learned Chief
Justice, dealing with Section 25 of the
Provincial Small Cause Courts Act,
observed: (SCC OnLine Bom paras 3-4).

''3. ... The object of Section 25 is
to enable the High Court to see that there
has been no miscarriage of justice, that
the decision was given according to law.

4.
The
section
does
not
enumerate the cases in which the Court
may interfere in revision, as does, Section
115 of the Code of Civil Procedure, and I
certainly do not propose to attempt an
exhaustive definition of the circumstances
which may justify such interference; but
instances which readily occur to the mind
are cases in which the Court which made
the order had no jurisdiction, or in which
the Court has based its decision on
evidence which should not have been
admitted, or cases where the unsuccessful
party has not been given a proper
opportunity of being heard, or the burden
of proof has been placed on the wrong
shoulders. Wherever the Court comes to
the conclusion that the unsuccessful party
has not had a proper trial according to
law, then the Court can interfere. But, in
my opinion, the Court ought not to
interfere merely because it thinks that
possibly the Judge who heard the case
may have arrived at a conclusion which
the High Court would not have arrived
at.'

This observation has our full
concurrence.

10. What the learned Chief
Justice has said applies to Section 35 of
the Act, with which we are concerned.
Judged from this point of view, the
learned Single Judge was not justified in
interfering with a plain finding of fact and
more so, because he himself proceeded on
a wrong assumption."

16. Another judgment which
needs to be noted is judgment of this
Court in Mundri Lal v. Sushila Rani
[Mundri Lal v. Sushila Rani, (2007) 8
SCC 609] . This Court held that
jurisdiction under Section 25 of the 1887
Act,
is
wider
than
the
revisional
jurisdiction under Section 115 CPC. But
pure finding of fact based on appreciation
of evidence may not be interfered with, in
exercise of jurisdiction under Section 25
of the 1887 Act. The Court also explained
the circumstances under which, findings
can be interfered with in exercise of
jurisdiction under Section 25. There are
very limited grounds on which there can
be interference in exercise of jurisdiction
under Section 25; they are, when (i)
findings are perverse or (ii) based on no
688 INDIAN LAW REPORTS ALLAHABAD SERIES
material or (iii) findings have been
arrived at upon taking into consideration
the inadmissible evidence or (iv) findings
have
been
arrived
at
without
consideration of relevant evidence."

18. It is in light of the aforesaid that
the decision and judgment passed by the
Trial
Court
is
to
be
examined.
Considering the first submission of the
learned
counsel
for
the
revisionist
regarding the presumption of notice of
demand and ejectment. The plaintiff in
para 4 had specifically pleaded that the
notice dated 16.03.1999 was sent to the
defendant by registered post and it was
refused by him on 23.03.1999 and thus
the notice is deemed to be served by
refusal. The original notice was brought
on record filed by the plaintiff bearing
Paper No. C-6. From the perusal of the
record which is available before this
Court, it indicates that the aforesaid
notice was addressed to the revisionist at
the correct address 295/3059 near City
Montessory
School,
Asharfabad,
Lucknow. The original postal receipt has
also been brought on record. It is not the
case of the defendant-revisionist that the
said notice has been incorrectly addressed
or insufficiently stamped. The ground
raised by the defendant is that on the date
when the alleged notice is said to have
been served, the revisionist was at Hardoi.

19. This Court upon considering the
entire evidence lead by the revisionist
finds that nowhere the revisionist ever
stated that on the given day he was
residing at Hardoi or he was at Hardoi
along with his entire family.

20. Merely making a bald denial to
indicate that the revisionist was at Hardoi
is not sufficient to rebut the presumption
of service of notice by refusal. The
revisionist has filed certain documents
along with the document list bearing
Paper No. C-79 which all relate to his
service and salary certificates. All the
aforesaid documents indicate that the
revisionist was working and posted at
Hardoi, however, these documents do not
indicate that at the relevant time and date,
the revisionist with his entire family was
actually residing at Hardoi or at some
other address than the one mentioned in
the notice. The revisionist has also not
given any positive evidence to indicate
that he was residing at Hardoi. Moreover,
he has filed his identity card wherein his
permanent address has been shown as
295/309, Asharfabad, Lucknow which is
bearing No. C-79/80 which is the address
at which the notice was sent.

21. The learned counsel for the
revisionist has relied upon the decision of
the Apex Court in the case of Parimal Vs.
Veena @ Bharti, reported in 2011 3 SCC
545 and also in the case of Gangaram Vs.
Smt. Foolwati, reported in 1970 SCC
Online All 42 (Full Bench) and in the
case of Shiv Murat and Another Vs.
State of U.P 2014 reported in 2014 SCC
Online All 6135. In all the aforesaid
cases, the Court has considered the aspect
of presumption. The proposition as laid in
the aforesaid decisions is not in dispute to
the extent that the presumption of service
of a letter sent under registered cover, if
the same is returned back with the postal
endorsement that the addressee refused to
accept, is a legal presumption. The
aforesaid presumption can be rebutted
and it is open for a party concerned to
place the evidence before the Court to
rebut the presumption by showing that the
address mentioned on the cover was
incorrect or that the postal authorities
3 All. Prem Bahadur Dalela Vs. Umeshraj Bali
689
never tendered the registered letter to him
or that there was no occasion for him to
refuse the same. The burden primarily lies
upon the party who challenges the factum
of service.

22. As far as the aforesaid
proposition is concerned, there is no
quarrel. However, the law in so far as the
presumption of notice is concerned has
also been considered by a co-ordinate
Bench of this Court in the case of
Ugrasen Vs. Parmeshwari Devi reported
in 2014 (9) ADJ 356. The question before
the Court was who has to prove the
endorsement of refusal was wrong. In
other words, the question to be decided
was that whose responsibility was to seek
the production of the postman to prove
the endorsement of refusal.

23. The aforesaid aspect was
considered in light of the statutory
provisions as well as various authorities
on the subject. The relevant portion of the
aforesaid
report
is
reproduced
hereinafter:-

7. Another relevant provision is
section 114, Illustrations (e) and (f),
Indian Evidence Act, 1872 (hereinafter
referred to as "Act, 1972") which reads as
under:

"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--

...

(e) The judicial and official acts
have been regularly performed;

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

8. The third is Indian Post
Office Act, 1898 (hereinafter referred to
as "Act, 1898"). Sections 3 and 14
thereof, relevant for the purpose of
present case, are reproduced as under:

"3. Meanings of "in course of
transmission by post" and "delivery".--
For the purposes of this Act,--

(a) a postal article shall be
deemed to be in course of transmission by
the post from the time of its being
delivered to a post office to the time of its
being delivered to the addressee or of its
being returned to the sender or otherwise
disposed of under Chapter VII;

(b) the delivery of a postal
article of any description to a postman or
other person authorized to receive postal
articles of that description for the post
shall be deemed to be a delivery to a post
office; and

(c) the delivery of a postal
article at the house or office of the
addressee, or to the addressee or his
servant
or
agent
or
other
person
considered to be authorized to receive the
article according to the usual manner of
delivering postal articles to the addressee,
shall be deemed to be delivery to the
addressee."

"14. Post Office marks prima
facie evidence of certain facts denoted.--
In every proceeding for the recovery of
any postage or other sum alleged to be
due under this Act in respect of a postal
article,--

(a) the production of the postal
article, having thereon the official mark
of the Post Office denoting that the article
has been refused, or that the addressee is
690 INDIAN LAW REPORTS ALLAHABAD SERIES
dead or cannot be found, shall be prima
facie evidence of the fact so denoted, and

(b) the person from whom the
postal article purports to have come, shall,
until the contrary is proved, be deemed to
be the sender thereof."

10. Though in the three statutes
referred to above, the oldest one is Act,
1872 but in fact the provisions relating to
Post Office Act are older, going to 1866
when the first Post Office Act was
enacted. In the then British Indian
Territory
governed
by
the
British
Government,
postal
services
were
established by ap pointing a Director,
Post Office by the Governor General in
Council in order to regulate this branch of
public service and revenue, in the light of
experiences gained by English postal
legislation and development of Post
Offices. Commenting upon the Post
Office service in England, in Whitfield v.
Lord he Despencer, [(1778) 2 Cowp.
754.] Lord Mansfield had said:

"The Post Master has no hire,
enters into no contract, carries on no
merchandise or commerce. But the post
office is a branch of revenue, and a
branch of police, created by Act of
Parliament. As a branch of revenue, there
are great receipts; but there is likewise a
great surplus of benefit and advantage to
the public, arising from the fund. As a
branch of police it puts the whole
correspondence of the kingdom (for the
exceptions
are
very
trifling)
under
Government,
and
entrusts
the
management and direction of it to the
crown, and officers appointed by the
crown. There is no analogy therefore
between the case of the Post Master and a
common carrier."

11.
Following
the
above
decision, in a recent case, in Triefus and
Co. Ltd. v. Post Office, [(1957) 2 Q.B.
352.] it was held that Post Office is a
branch of revenue and Post Master
General does not enter into any contract
with a person who entrusted, to the Post
Office, a postal packet for transmission
overseas.

12. Presently also, the Post
Office service in India, with which this
Court is concerned, is not in the hands of
any private individual or corporate body
but a Department of Government of India
and on certain matters, it is regulated by
various Statutes including the Act, 1898.

13. I have referred to the above
two decisions in Whitfield (supra) and
Triefus and Co. Ltd. (supra) for the reason
that the system of Post Office in India has
been observed to be similar as it was in
England. The Apex Court referring to
certain provisions of Act, 1898, in Union
of India v. Mohd. Niazim, [(1980) 1 SCC
284 : AIR 1980 SC 431 : 1979 (5) ALR
230 (SC) (Sum.).] said:

"These are only some of the
provisions of the Act which seem to
indicate that the post office is not a
common carrier, it is not an agent of the
sender of the postal article for reaching it
to the addressee. It is really a branch of
the public service providing postal
services subject to the provisions of the
Indian Post Office Act and the rules made
thereunder. The law relating to the post
office in England is not very much
different from that in this country."

14. The aforesaid decision was
rendered considering the provisions in
Act,
1898 which
was
enacted
by
repealing previous Act of 1866, so as to
consolidate and amend the law relating to
Post Office in India.

15. The post office in India,
thus, is an institution established by a
statute. "Postage" required to avail of the
postal services has been defined in section
3 All. Prem Bahadur Dalela Vs. Umeshraj Bali
691
2(f) of Act, 1898 as "the duty chargeable
for the transmission by post of postal
articles". Under section 4 the exclusive
privilege of conveying letters is reserved
to the Central Government with certain
exceptions which are not significant.
Section 17 of the Act says that "postage
stamps" shall be deemed to be issued by
Government for the purpose of revenue.
The provisions of the Act indicate that the
post office is not a common carrier. It is
not an agent of sender of the postal article
for reaching it to the addressee. It is really
a branch of the public service providing
postal services subject to the provisions of
Act, 1898 and the Rules made thereunder.
It is in this context, section 14 of Act,
1898 would also be a matter of relevance
which says that the production of the
postal article, having thereon the official
mark of Post Office denoting that the
article has been refused, or that the
addressee is dead or cannot be found,
shall be prima facie evidence of the fact
so denoted. The Statute provides a prima
facie evidence of the mark given by
Postal Department on the postal article
sent by post regarding its correctness,
though the word "prima facie" shows that
it is liable to be disproved by adducing
evidence otherwise. Meaning thereby,
mere denial by the party in respect to
whom endorsement has been made by
postal agent otherwise, would not be
sufficient unless he adduces evidence to
discredit prima facie evidence in the
shape of endorsement made by postal
department on the article concerned. This
provision read with section 114 of Act,
1872 and section 27 of Act, 1897, makes
the situation quite clear.

16. It appears that in various
decisions, while considering the question
of service of notice, most of the times,
provisions
of
Act,
1898
and
its
implication have been omitted even when
the service was sought to be effected by
registered post.

17. Initially the issue of service
of notice under section 106 of Transfer of
Property Act, 1882 (hereinafter referred
to as "Act, 1882") was considered by
Privy Council in Harihar Banerji v.
Ramshashi Roy. [AIR 1918 PC 102] The
Court said, if a letter, properly directed,
containing a notice to quit, is proved to
have been put into post office, it is
presumed
that
letter
reached
its
destination at the proper time according to
the regular course of business of post
office and was received by the person to
whom it was addressed. The presumption
would apply with still greater force to
such letters, which the sender has taken
precaution, to register, and is not rebutted,
but strengthened by the fact that a receipt
for the letter is produced, signed on behalf
of the addressee by some person other
than the addressee himself. Here was a
case where service of notice was not
denied by all and one of the person has
admitted
its
service,
therefore,
a
presumption was drawn. So the facts of
this case makes it clear that the
presumption was rightly drawn.

18. In Sukumar Guha v. 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
692 INDIAN LAW REPORTS ALLAHABAD SERIES
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.
Whether it was tendered and, if so, to
whom tendered, remains a matter to be
ascertained on evidence. If acceptable
evidence is available that it was tendered
to the party personally, then such facts
may bring the service of notice within the
second
mode,
namely,
tendered
or
delivered personally to such party. If
however, tender or delivery is not to the
party personally but to a member of his
family or a servant, then it may be
effective tender or delivery only when the
notice was addressed to the residence of
the party. Such personal tender or
vicarious tender may be effective even if
it was through the agency of post office,
and proof of that tender comes from
testimony of any person present at the
event, and not only by examining the
postman. Here what I finds that when
Court talks of evidence, we read it in the
context of section 114 of Act, 1872. A
registered envelop received back from
postal authority with the endorsement of
postman of "refusal" will constitute a
valid evidence to show that it was served
upon the addressee but he refused to
accept unless proved otherwise and for
that purpose examination of postman for
constituting a prima facie evidence,
further, would not be required, in view of
section 14 of Act, 1898. This section 14
of Act, 1898 has been omitted from
consideration by the Court.

19. This Court in Wasu Ram v.
R.L. Sethi, [1963 AWR 472.] said:

"The
question
whether
a
communication sent through the post was
received by the address is one of fact, but
in many cases it may be difficult and
inconvenient if not impossible, to produce
the postal official who delivered the letter
or the money order. To obviate this
difficulty the Evidence Act permits
certain presumptions to be made under
certain circumstances, section 16 provides
that "when there is a question whether a
particular act was done, the existence of
any course of business, according to
which it naturally would have been done,
is a relevant fact". The illustration (a) to
this section explains that in a question
"whether a particular letter was despaired,
the facts that it was the ordinary course of
business for all letter put in a certain place
to be carried to the post, and that
particular letter was put in that place, are
relevant". Section 114 provides that 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 proper business,
in their relation to the facts of the
particular case.