P L D 1958 Dacca 438 (PLP)

8. Mr. Khan had ultimately to concede that in this revision application the findings of fact cannot be agitated in this Court. So, in deciding the case, in this revision application this Court would be required to see whether the Subordinate Judge exercised any jurisdiction not vested in him by law, or failed to exercise the jurisdiction vested in him by law, or acted illegally in the exercise of his jurisdiction or with material irregularity.

9. Mr. Khan has urged that there was material irregularity in conducting the sale inasmuch as the concise statement of the order of attachment and the proclamation had not been served upon the petitioner and such material irregularity would vitiate the sale. He has contended that the learned Subordinate Judge acted in the exercise of his jurisdiction illegally or with material irregularity in presuming service of the registered notice of con?cise statement of the order of attachment and the proclamation from the endorsement `refused' said to have been made on the cover of the notice by the postal peon without having this endorsement proved by the postal peon and in his absence by any other competent person that such endorsement was made by him and without any evidence on the record that the registered notice had been tendered to the petitioner and refused by her.

10. Section 163 (3) (c) provides for sending in the prescribed form by registered post to the judgment‑debtor a concise state?ment of the order of attachment and proclamation at tile time of the issue of proclamation. In this case it appears that simultaneously with the issue of the combined order of attachment and sale, a concise statement of the order of attachment and proclamation was sent by the decree‑holder auction‑purchaser to the judgment‑debtors by registered post, in accordance with the provisions of section 163 (3) (c) of the Bengal Tenancy Act. These registered notices appear to have been received by the other judgment‑debtors including opposite party No. 3 and not by the petition; r. The notice sent by registered post to the petitioner was returned to , the sender with an endorsement `refused, to sender' purported to have been signed by the postal peon with date, who was probably entrusted with the delivery of the letter to the addressee, namely the petitioner. It appears that the learned trial Court did not at all touch the point of service of the registered notice of the order of attachment and pro?clamation when he dealt with question of service of sale proclamation. The learned Subordinate Judge dealt with this question and observed as follows "From a persual of the record, it appears that there was service of registered card on the petitioner. But she refused to accept it. This is evident from the return of the postal peon. The petitioner does not say this. It can be easily presumed that there was regular service of registered notice." The learned Subordinate Judge, it appears, relied upon the decision in the case of Monomohon Roy Choudhury v. Ajit Kamal Dutta Gupta (6 D L R 267). In that case it was held that where a registered notice has come back with the postal endorsement "refused", it is for the defendant‑addressee who denies receipt of the registered notice to prove that the notice was . not properly addressed to him or it was never tendered to him. The plaintiff need not prove the service of the registered notice duly addressed and that the‑postal peon need not be examined.

11. Mr. Khan has relied on the decision in the case of Gobinda Chandra Saha v. Dwarka Nath Patita (19 C W N 489) and on the decision in the case of Rain Jadu Lahiri v. Din Doyal Saha (54 CWN 810), and it was contended by him that since the registered letter had come back with the endorsement "refused, to sender", the presumption that it had been delivered in due course to the addressee was rebutted and since the postman had not been examined to prove the endorsement of refusal, there was no evidence that the letter had ever been tendered to the petitioner. He has further contended that the endorsement having not been proved by the postal peon or by anybody competent to prove, it was not admissible in evidence and, as such, no presumption should have been drawn by the learned Subordinate Judge from such inadmissible evidence. In the case of Gobinda Chandra Saha v. Dwarka Nath Patita, their Lordships Mukerjee and Walmsley, JJ., held that the endorsement "refused" made by the postal peon on the cover of the registered notice is not admissible in evidence in proof of the allegation that the cover was tendered and refused by the addressee. They further held that the proof of fact that a letter correctly addressed has been posted and has not been received back through the Dead Letter Office may justify the presumption that it had been delivered in due course of mail to the addressee, but proof of the fact that a letter has been duly posted and has been returned by the Postal authorities does not justify the presumption that it has been so returned, because it has been refused by the addressee, much less is there a presumption that the cover has been tendered to the addressee on a particular date.

12. Their Lordships also observed that "the presumption mentioned in section 114 of the Evidence Act is not a presumption of law but a presumption of fact and whereas in the present case the defendant pledges his oath that the cover was never tendered to him, the Court cannot treat the presumption of regularity of official business as conclusive against him". The principle of law laid down by their Lordships in this case that the registered letter has come back with the endorsement of refusal and that it was inadmissible in evidence and, as such, there was no evidence that the letter had ever been tendered to the appellant was not accepted by Chakraborti, J., in the case of Nirmala Bala Debt v. Provat Kumar Basu (52 C W N 659), as correct and he has distinguished this case from the case reported in 19 C W N

489. The case decided by Chakraborti, J., is exactly on all fours with the present case under revision. His Lordship, held on review of a number of authorities, that "where a notice addressed to a person and sent by registered post is returned to the sender with an endorsement "refused", made by the postman, the notice, would be presumed to have been duly served upon the addressee without the examination of the postman or other evidence regarding tender and refusal.

13. The fact that the letter has come back does not in itself rebut the presumption that the letter was tendered and, therefore, served. In this case, the question was whether there was material irregularity in publishing the sale which had caused the petitioner substantial injury and the only irregularity urged before His Lordship was that the concise statement was not served and reliance was placed on the decision in Gobinda Chandra Shaha v. Dwarka Nath Patita and it was contended that since the registered letter had come back, the presumption that it had been delivered in due course to the addressee was rebutted and since the postman had not been examined to prove the endorsement of refusal, there was no evidence that the letter had ever been tendered to the appellant. His Lordship observed "The argument is a plausible one, but, having regard to the preponderance of authority, I am unable to accept it as correct. The case relied on does not itself go as far as the appellant contended,, for, although there are undoubtedly observations to the effect that the endorsement was not admissible in evidence of the refusal in the absence of examination of the postman or proof that the circumstances contemplated by section 32 (2) of the Evidence Act existed, still the ultimate decision is that the endorsement could not prove the date on which the letter had been tendered and refused. It was essential in that case Gobinda Chandra Saha v. Dwarka Nath Patita for the plaintiffs to prove that the notice to quit had been served on the 29th April 1911, but that date appeared only in the post mark of the office of destination and formed no part of the endorsement. The case thus contains no final decision that the endorsement, such as . it was, could not be taken into consideration, unless the postman was examined. On the other hand, there is the old decision, in Lootf Ali v. Pearee Mohun (16 W 9. 223), it is true, before the Evidence Act, where it was observed that since there was evidence that the letter had been forwarded to the addressee by post duly registered, it was to be presumed that it had been tendered to him and the addressee could not take advantage of his refusal to take it."

14. His Lordship also referred to the case in Jogendra Chunder v. Dwarka Nath (I L R 15 Cal. 681), where it was held that "merely on proof of posting and production of the registered letter. itself, bearing an endorsement of refusal, there had been sufficient servi‑.e." His Lordship also relied upon the decision in Hari Pada Dulta v. Joy Gopal Mukherjee (39 C, W N 934), wherein there is the decision by Rankin, C. J.,.and Pearson, J., where it was held that if a registered letter was refused, that in itself, until explained, was prima facie good enough evidence that the addressee had an opportunity to accept it. In none of these cases does the postman seem to have been examined. His Lordship, therefore, observed "Although there may be no evidence of tender and refusal, that gap may be filled, when the endorsement is there; by invoking illustration (f) to section 114 of the Evidence Act, that is to say, by presuming that the common course of business was followed and the postman did tender the letter to the addressee and did write the endorsement of refusal by the addressee to accept the delivery. If the refusal does not come within the ambit of `common course of business', surely the tender does and that itself is sufficient to constitute service. Or it may even be said that the writing of the endorsement comes within `the common course of business' of the postman and, therefore, involves the presumption that it was properly written after a refusal by the addressee. The fact that the letter came back does not in itself rebut the presumption that it was tendered and, therefore, served". In the cast; of Harihar v. Ramsashi (45 1 A 222 : 23 C W N 77 (P C) : 46 teal. 458), their Lordships of the Privy Council held that if a letter properly directed containing a notice to quit was posted in the post office, it was presumed that the letter reached the destination according to the regular course of business of the post office and to whore it was addressed, and that presumption applies with greater force to registered letters.

15. In the case of Monomohan Roy Cooudhury v. Ajit Kamal Pytta, the decision of Choudhry. J., was based on the decisions in 39 C W N 934, 52 C W N 659 and 45 I A 222 : 46 Cal. 458, Chakraborti. J., in the case of Alirmala Bola v. Provat Kumar, has observed as follows "I may point out further that even according to the decision in Gobinda v. Dwarka the presumption of due service is rebut?ted when the addressee pledges his oath that the letter had never been tendered to him."

16. I respectfully agree with the decisions reported in 39 C W N 934, 52 CWN659 and 6 D L R 267 and, as such, I am unable to follow the decision in 19 C W N 489 and 54 C W N 810 so far as the question of presumption raised by the endorsement of the postal peon and so far. as the admissibility of that endorsement in evidence without examination of the postal peon or any other witness in that behalf is concerned. The facts of the case reported in 54 C W N 810 are quite distinguishable from the facts of the present case. In that case, the judgment?-debtor in an application under Order XXI, rule 90, Civil P. C., alleged that there was no service of sale proclamation: The learned Subordinate Judge found that the judgment‑debtor had failed to prove that the sale had not been proclaimed. The learned Judge relied upon a peon's return as raising a pre?sumption that all things had been done properly. This peon's return was not proved. , The peon was not called and no evidence was called to prove that the document was in the handwriting of that particular peon. Their Lordships Harries C. J. and Sarkar, J., observed :‑‑ "Unless the genuineness of the document be first established, no presumption can be raised by reason of section 114, of the Indian Evidence Act. Unless that was so, a presumption would be raised when any bogus peon's return was put in. The Court must be satisfied that the peon's return is genuine before section 114 of the Indian Evidence Act comes into play at all. The peon's return was not proved in this case." Now in the present case there is no evidence on the side of the peti?tioner that the postal endorsement was false and the letter was not delivered to the petitioner and the petitioner did not refuse to accept it. The petitioner came to the witness box and deposed. But she did not say a single word about the service of the registered notice of concise statement of the order of attachment and proclamation. She did not state that no registered notice was tendered to her by the postal peon and that she refused to accept it. Her husband, P. W. 2, however, stated that no concise statement of sale was served upon his wife. The witness could not have been present by the side of the petitioner every day and all the time and his statement could only have been made on information obtained from the petitioner and was thus hearsay. There was accordingly no legal evidence to rebut the presumption. Therefore, the requirement mentioned in the case of Gobinda Chandra v. Dwarka Nath Patita was not fulfilled. As I have pointed out above that even according to the decision of that case the presumption of due service is rebutted when the addressee pledges his oath that the letter had never been tendered to him. It was for the petitioner to prove the alleged irregularity in publishing the sale and not for the respondent to prove affirmatively due performance of all the conditions of a good sale. Therefore, in this case, in the absence of any evidence on the side of the petitioner that the postal endorsement is false and the letter was not delivered to her, it must be taken that the notice was duly served on the petitioner and the learned Subordinate Judge was perfectly right to observes that from the endorsement of the postal peon, it can be easily presumed that there was regular service of registered notice upon the petitioner before the sale and, as such, she could not now plead ignorance of the sale from before the time it was held.

17. In the result, I hold that the learned Subordinate Judge committed no error in law in presuming from the postal endorse?ment that there was service of notice and, as such, it cannot be said that he acted in the exercise of his jurisdiction illegally or with material irregularity. The application is, therefore, rejected and the Rule. is discharged with costs. Z. A. S. ?????????? Rule discharged.