P L D 1965 (W (PLP)

(a) West Pakistan Urban Rent Restriction Ordinance (VI of 1959), S. 13 and Displaced Persons (Compensation and Rehabilitation) Act (XXVIII of 1958), S. 30‑Notice under S. 30, Displaced Persons (Compensation and Rehabilitation) 'Act, 1958, sent by registered post A. D. and received back with endorsement "refused"‑Notice, if proved to be correctly addressed and posted, presumed to have been received by addressee‑Examining postal peon as witness to prove endorsement formally‑Not necessary Evidence Act (I of 1872), S. 114, illustration (f )‑General Clauses Act (X of 1897), S.

27. Ramdas Chakarbati v. The Official Liquidator of the Cotton Ginning Company Limited, Cawnpore I L R 9 Cal. 366 distinguished. Mon Mohan v. Ajit Kamal Dutta Gupta P L D 1954 Dacca 168; Ulfatunnessa v. Rafaxmi Investment and Trading Company Limited P L D 1958 Dacca 438; Jankiram Narhari Shahane v. Damodhar Ramchandra Joshi A I R 1956 Nag. 266; Butto Kristb Roy and others v. Gobindaram Marwari and others A I R 1939 Pat. 540; Vaman Vithal Kulkarni and others v. Khanderao Ram Rao Sholapurkar A I R 1935 Bom. 247; Tekchand Devidas v. Gulab Chand Chandan Mal and another A I R 1957 Madhya Bharat 151; Ma Me Shin v. R. M. R. M. N. Chettyar Firm A I R 1933 Rang. 76; Saila Bala Dasi v. Atul Krishna Mondal and others A I R 1948 Cal. 63; Townsend's case L R 13 Eq. 148; Govind Chandra v. Dwarka Nath 26 I C 962; Gresham House Estate Co. v. Rossa Grande Gold Mining Co. 1870 W N 119; Harihar Banerji and others v. Ramshahi Roy and others 45 I A 222; Sher Afzal v. Mohan Lai A I R 1926 Lab. 520; Jogendro Chunder Ghose v. pwarka Nath Karmokar (1888) 15 Cal. 681; Girish Chandra Ghose v. Kishore Mohan Das A I R 1920 Cal. 287; Durga Nath Pramanik v. Rajendra Nath Saha 20 I C 363; Raunaq Ram and others v. Prabh Dayal and others A I R 1930 Lab. 439; Papillon v. Brunton 29 L J Ex 265; Bachcha Lai v. Lachman and another A I R 1938 All. 388; Mohan Lai Kojriwal v. Sundar Lai Nand Lai Saraf and others A I R 1949 East Pb. 295 and Balu Ram v. Bai Panna Bai 35 Bom. 213 ref. (b) Evidence Act (I of 1872), S. 16, illustration (b)‑Provision relates merely to relevancy of facts‑Does‑not raise any presump tion. Mumtaz Khan made an application on the 26th of April 1961, under section 13 of the Rent Restriction Ordinance VI of 1959 for the eviction of Bashir Ahmad from House No. 12 Street No. 104, Ichhra Lahore, before the Rent Controller, on the ground that he had been transferred the house by the Settlement Department and a P. T. O. had issued in his favour on the 4th of March 1960, and he had served the respondent with a registered notice, acknowledgment due, on the 17th of October 1960, that he should pay him the rent at the rate of Rs. 22 p. m., but he bad refused to accept the notice and had failed to pay the rent from March 1960 to April 1961, and had, consequently, rendered himself liable to ejectment.

2. The respondent in his written statement raised the objection that as Mumtaz Khan had not served him with a notice under section 30 of Act XXVIII of 1958, he could not make an application under the Rent Restriction Ordinance and the Controller had no jurisdiction to proceed with the application. He admitted on facts that the Additional Settlement Commissioner had transferred the house to Mumtaz Khan, but claimed that as he had also filed a revision petition before the Settlement Commissioner on the 23rd of July 1960, the application was not competent and could not proceed. He denied that the landlord had served him with a notice and he had refused to accept it, and that the landlord was entitled to any rent. On the pleadings of the parties, the learn4d Rent Controller framed the following issues:‑ (1) Whether the respondent has regularly been paying or tendering the monthly reat of the house in dispute in time? O. P. R. (2) Whether the respondent sent a proper notice of demand to the respondent before filing this application? O. P. (3) Relief. The appellant and the respondent appeared as their own witnesses and closed their cases. The Rent Controller decided issue No. 1 against the former and issue No. 2 against the latter. He dismissed the respondent‑landlord's application for ejectment, who then appealed to the Appellate Authority. His appeal was accepted. Hence this second appeal by Bashir Ahmad.

3. The Rent Controller held that as the landlord did not produce the postman, who went to deliver the notice sent by registered post, acknowledgment due (Exh. P. 4), dated the 17th of October 1960, to formally prove the endorsement of refusal of the notice, the statutory notice was not proved to have been received by him.' The Appellate Authority came to the conclusion that a presumption arises under section 114, illustration (f), of the Evidence Act in favour of the landlord and it was not necessary for him to produce the postman to prove his report on the notice that its acceptance had been refused by the tenant, since onus was cast on the latter to show that notice had not been refused by him. In coming to this conclusion, he relied on Mon Mohan v. Ajit Kamal Dutta Gupta (P L D 1954 Dacca 168) and Ulfatunnessa v. Rajlaxmi Investment and Trading Company Limited (P L D 1958 Dacca 438). He, therefore, set aside the finding of the Rent Controller on issue No. 2 and, accepting the appeal directed the respondent to vacate the promises within one month.

4. In this second appeal, the learned counsel for the appellant contends that as the postman, who went to deliver the notice, has not been produced, it is not proved that the notice was refused by the respondent, and it not having been established that statutory notice required by section 30 of Act XXVIII of 1958 had been given, the application for ejectment was incompetent and the order of the lower appellate Court for the ejectment of the appellant is illegal. It is argued that a presumption under section 114 of the Evidence Act cannot be raised in favour of the landlord‑respondent for the reason that two persons of the same name resided in the premises and it has not been proved that the notice was correctly addressed and, secondly, that no resumption can, in such cases, be raised.

4. Mumtaz K Tan admitted m his statement that the first notice, dated the 13th of April 1960, Exh. P. 2, which he sent to the appellant, was returned because two persons of the same name resided there. The post‑card Exh. P. 2 and its acknowledg ment receipt Exh. P. 3 show that they were addressed to Bashir Ahmad at House No. 12, Street No. 104, Ichhra, Lahore, but his parentage was not given; while in the notice Exh. P. 4, dated the 17th of October 1960, not only his name Bashir Ahmad, but his parentage as Pir Bakhsh was also mentioned. His address was the same. The endorsement on this notice is "Acceptance refused in the presence of Mistri Karimuddin". There is, therefore, no force in the contention that the notice sent to the appellant was not correctly addressed, it not being in dispute that he resided in House No. 12, Street No. 104, Ichhra, Lahore; which is the house from which he is sought to be evicted.

5. One of the questions which fall for determination in this case is whether a presumption under section 114, illustration (f) of the Evidence Act has been correctly raised by the appellate Authority in favour of the landlord respondent. The learned counsel for the appellant in arguing that this presumption should not have been raised in law relies on Ramdas Chakarbati v. The Official Liquidator of the Cotton Ginning Company, Limited, Cawnpore (1 L R 9 Cal. 366); Jankiram Narhari Shahane v. Damodhar Ramchandra Joshi (A I R 1956 Nag. 266); Butto Kristo Roy and others v. Gobindaram Marwari and others (A I R 1939 Pat. 540); Vaman Vithal Kulkarni and others v. Khanderao Ram Rao Sholapurkar (A I R 1935 Bom. 247); Tekchand Devidas v. Gulab Chand Chandan Mal and another (A I R 1957 Madhya Bharat 151); Ma Me Shin v. R. M. R. M. N. Chettyar Firm (A I R 1933 Rang. 76) and Saila Bala Dasi v. Atul Krishna Mondal and others (A I R 1948 Cal. 63).

6. In the first case the question was whether a notice to produce the originals of two press‑copy letters had at the hearing been given to the appellant through the Court under section 131 of the Civil Procedure Code. On behalf of the appellant it was argued that there was no evidence that the originals had ever been properly addressed or posted or that the appellant had assented to the post office being used as the medium of communication with him. For the other side, reliance was placed on sections 16 and 114 of the Evidence Act, and it was argued that there was evidence that in the ordinary course of business of the company the letter in question would have been posted and that the Court had to infer that the letters had been posted and it was immaterial whether or not they had been properly addressed. For this contention reliance Way placed on Townsend's case (L R 13 Eq. 148). The Court came to the conclusion that there was no evidence whatever that the letters, if posted, were properly addressed and declined to draw the inference that the letters in question were proper Naddressed or posted. This case is, therefore, clearly distinguishable, as in that case both the ingredients were absent, namely, to the letters had been correctly addressed and posted.

7. In the second case it was observed that though proof of the fact that a letter correctly addressed, which had been posted and had 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, yet it did not justify the presumption that it had been so returned because it had been refused by the addressee. The presumption under section 114 of the Evidence Act is not a presumption of law, but a presumption of fact, and where, as in the case, the defendant had stated on oath that the cover was never tendered to him the Court could not treat the presumption of regularity of official business as conclusive against him. As the registered cover had come back with endorsements, which did not and could not prove themselves, and unless so proved were inadmissible in evidence, it was for the plaintiff to have established by proper evidence that notice which had been returned undelivered by the postal authorities was tendered personally to the addressee, or to one of his family or servants at his residence, which was not established.

8. In the third case, similar view was taken, relying on Govind Chandra v. Dwarka Nath (26 1 C 962). It was held that the presumption did not apply where a letter had been returned as being refused by the addressee, and there was no legal evidence to show that the notice was actually tendered to the plaintiff and refused by him.

9. In the fourth case, a registered letter containing the notice was refused by the addressee. The postman, who took the. letter to deliver it, was not produced as a witness. It was observed that the refusal was not proved, but the ratio decidendi of this case is that it was not possible to conclude that the contents of a notice enclosed in a cover could be held to have been brought to the notice of the person to whom the notice has been addressed.

10. In the fifth case, a notice sent by registered post had been received back with the endorsement of the postman "refused". The postman, who tendered the registered letter to the defendant, not having been produced, the trial Court held that the endorsement was not admissible in evidence in proof of the fact that the cover was tendered to the defendant, and was refused by him on the date of the endorsement. On appeal it was held that the events recited in an endorsement by a postal peon must be proved by calling him as a witness, unless those events were admissible under section 32 or 33 of the Evidence Act, and that it was rightly held that the endorsement was not admissible in evidence.

11. In the sixth case it was held that the question whether a presumption could be drawn of due delivery or service where a letter had been refused and returned by the post office must depend upon the facts and circumstances of each case though it was open to the Court, under section 114, illustration (f) of the Evidence Act, to presume that the common course of business had been followed. It could not be held that the posting of a letter proved its delivery as it was a matter of common knowledge that postal servants were not always diligent. In spite of section 114 of the Evidence Act and it being established that the letter was duly posted, the Court refused, in the circumstances of the case, to rely on the endorsement that the letter had been refused by the addressee.

12. In the last cited case it was held that where a notice was sent by registered post and returned with the endorsement "refused", the Court was entitled to presume that it was tendered, but where the person to whom the notice was stated to have been tendered, denied that it was tendered to him, the Court was competent to consider the circumstances and to hold that the denial under the particular circumstances was sufficient to rebut the presumption.

13. The weight of authority is, however, in favour .of the presumption that a registered letter received back with the endorsement "refused" was duly served on the addressee\who had refused to accept it. In Gresham House Estate Co. v. Rossa Grande Gold Mining Co. ((1870) W N 119), the defendants, who were sued for rent, contended that they had, before the rent accrued due, terminated their tenancy by a notice to quit enclosed in a letter which they had put into the post correctly addressed to the plaintiffs, and which, if delivered in due course, would have been received in time to determine the tenancy. The plaintiffs called evidence to show that the letter had never been received. The presiding Judge at the trial left it to the Jury to decide whether the notice had, in fact, been received. The Jury found that it had been received. On a motion for a new trial on the ground of misdirection, the Court, consisting of Cockburn, C. J., Blackburn, Mellor and Hannen, JJ. held that if a letter properly directed, containing a notice to quit, was proved to have been put into the post office, it was to be presumed that the letter reached its destination at the proper time according to the regular course of business of the post office and was received by the person to whom it was addressed. This case was followed by the Judicial Committee in Harihar Banerji and others v. Rarnshahi Roy and others (45 I A 222). Their Lordships observed, that the above presumption would appear to their Lordships to apply with still greater force to letters which the sender had taken the precaution to register, and was not rebutted.

14. In Sher Afzal v. Mohan Lal (A I R 1926 Lah. 520), it was held that where a notice sent by post in a registered cover is returned by the postman with the note that the addressee refused to receive it, and the posting of the notice had been proved, a presumption under section 114 of the Evidence Act, that the addressee did receive the notice, arises. In coming to this conclusion, the learned Judge relied on Jogendro Chunder Ghose v. Dwarka Nath Karmokar ((1888) 15,Cal. 681), Girish Chandra Ghose v. Kishore Mohan Das (A I R 1920 Cal. 287), Durga Nath Pramanik v. Rajendra Nath Saha (201 C 363). The same view was taken lay Addison, J. in Raunaq Ram and others v. Prabh Dayal and others (A I 81930 Lah. 439) and it was further observed that where such presumption arises, it was for the party putting forward the plea of want of notice to rebut it. In Durga Nath Pramanik v. Rajendra Nath Saha and others it was argued that the tender to and the refusal by the defendant of the cover containing the notice was not sufficiently proved by the endorsement on the cover or envelope. This contention was repelled by the Court relying on the decision of the Court of Exchequer in England in the case of Papillon v. Brunton (29 L J Ex. 265), Jogendro Chunder Ghose v. Dwarka Nath Karmokar (I L R 15 Cal. 685). In the latter case, it was held that proof of the posting of a notice in a registered cover and the production of the cover in Court with an endorsement purporting to be by an officer of the post office stating that the addressee had refused to receive the document were sufficient proof of service. In Girish Chandra Ghose and others v. Kishore Mohan Das (54 1 C 5) a registered letter was returned by the post office with an endorsement of its having been refused by the addressee. It was observed that the Court might presume, under section 114 of the Evidence Act, that the letter reached the defendant. In Bachcha Lal v. Lachman and another (A I R 1938 All. 388), it was held that where a registered notice under section 106 of the Transfer of Property Act is sent to a tenant, there is a presumption of law in favour of the effecting of service unless proved to the contrary. Again, in Mohan Lal Kojriwal v. Sundar Lal Nand Lal Saraf and others (A I R 1949 East Pb. 295), a notice was sent by a Commissioner by registered post for the 25th of January for the proceedings to be held before him. The endorsement of the postman was that the acceptance had been refused by the addressee. Relying on Balu Ram v. Bai Panna Bai (35 Bom. 213), Jogendra Chunder'v. Dwarka Nath and Girish Chandra v. Kishore Mohan (23 C W N 319) it was held that the endorsement "refused" on the registered letter raised a presumption that it was refused by the defendant himself, even though the word "refused" was not proved to be in his handwriting. A presumption of due service arose as soon as it was established that the cover containing the notice was transmitted by registered post to the defendant. In Monmohan alias Monomohan Roy Chowdhury v. Ajit Kamal Dutta Gupta it was held that there was a strong presumption of due service in case of a letter registered under a postal cover, where a letter came back with an endorsement "refused", the onus lay on the defendant to prove that the letter was not properly addressed to him or that it was never tendered. The plaintiff need not prove the actual service of the registered letter. He can rely on the presumption that arises under section 114, illustration (f) of the Evidence Act that a common course of business had been followed in the particular case. Similarly, in Ulfamunessa v. Messrs Rajlaxmi Investment and Trading Co. Ltd., A. J. Khan, J. held that in the absence of evidence that the postal endorsement on the registered letter that it had been refused was false and the letter was not delivered td the addressee, it must be taken that notice was duly served on the addressee and that he had refused to receive it. In the case, there was no evidence in rebuttal that the postal endorsement was false.

15. The facts necessary for the determination of the question raised are that Mumtaz Khan landlord alleged in his application that a notice was sent by registered post and was refused by Bashir Ahmad. In support of his claim, he produced post‑card Exh. P. 4 and acknowledgment receipt Exh. P.

5. The post‑card' bears the endorsement that its acceptance had been refused by the addressee in the presence of Karim‑ud‑Din. The respondent denied that the notice had ever been tendered to him by any postman or that he had refused it. Mumtaz Khan only proved the posting of the post‑card by registered post, acknowledgment due and stated that it had been refused, but he could have no personal knowledge about it. The postman, who wrote the endorsement, has not been produced as a witness and, in the circumstances of the case, it has to be decided whether the notice was served on and received by the appellant as required by section 30 of the Displaced Persons (Compensation and Rehabilitation) Act, 1958.

16. Under proviso (b) to subsection (1) of section 30 of the Displaced Persons (Compensation and Rehabilitation) Act, the transferee cannot eject a person in occupation of a house for a period of six years from the date of its transfer, notice of which shall be given by the transferee within one month of such transfer by registered post, acknowledgment due; and under subsection (2), where such notice is not given within one month, the period of six years shall count from the date of "receipt" of such notice by the tenant. Under subsection (3), the protection in proviso (b) to subsection (1) of section 30 shall not be available to a tenant who has not, within three months from the date of the "receipt" of the notice of demand, sent to him by registered post, acknowledgment due, paid or tendered the amount of rent or arrears of rent due for any period after the transfer. Thus, section 30 provides for notice to be "sent" to the tenant of the transfer by registered post, acknowledgment due, and the tenant has to pay the arrears of rent within three months of the "receipt" of the notice of demand, sent in the manner provided by the Act. It is necessary, therefore, that a notice should have been sent by registered post, acknowledgment due, and r id by the tenant.

17. Section 27 of the General Clauses Act provides that where any Central Act (as the Displaced Persons (Compensation and Rehabilitation) Act, 1958 is) authorises 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. This section enacts that service shall be deemed to have been effected and at the time at which the letter would be delivered in the ordinary course of post, unless it is proved to the contrary. This is an inference to be raised by law on posting by registered post a properly addressed and prepaid letter containing the document, which is the notice in this case. The requirements of the section are fulfilled in this case, and service has to be deemed to be effected. There is mere denial by the appellant of its reaching him or being presented to him, which is .not enough to prove to the contrary. This is enough to dispose of the appeal.

18. In one case, section 16 of the Evidence Act was relied upon, which enacts 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. Illustration (b) provides that where the question is, whether a particular letter reached `A', the facts that it was posted in due course, and was not returned through the Dead Letter Office, are relevant. This thus relates to relevancy, on the question of its reaching the addressee, on the posting of a letter to its correct address in due course and not returned through the Dead Letter Office, but no question of presumption arises.

19. Section 114 of the Evidence Act, on which the Appellate Authority relied, 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 private business, in their relation to the facts of the particular case. Under it illustration (f), is that the Court may presume that the common course of business has been followed in a particular course of business. It is under this section that decisions have been taken that in case of notice sent under registered cover and received back with the endorsement "refused", a presumption arises that it had reached the addressee and had been refused by him. Such a presumption has bee raised in a large number of cases already cited. The effect of the presumption, which arises under section 114 of the Evidence Act, is that it must be presumed initially that a notice reached the addressee and was refused by him. The presumption reputable. Onus is then on him to show that it did not reach him. Whether the onus has been discharged or not by him, ha to be decided on the facts of each case. Where a presumption arises and the defendant has denied receipt of the notice, the question whether the notice was served on and refused by the addressee, is not a question of law and must be decided as a fact weighing in scales the presumption raised and the denial by the addressee of having received it. Where a postal peon, who went to deliver the notice has been produced, there is no difficulty in holding, in view also of the presumption arising under section 114 of the Act, that the notice reached the addressee and was refused by him. Where the postal peon has not been produced, the ascertainment of the fact of service of notice is generally a question of fact, depending upon the circumstances of each case.

20. If on the facts and circumstances of a case, it is proved that a registered letter was correctly addressed and duly posted, and it bears an endorsement of a postal peon that it had been refused and it cannot be looked at and it is necessary to produce the postal peon to prove the endorsement, does it not mean that the presumption is ignored altogether? What is its advantage then of the presumption? In a case in which a letter is correctly addressed and posted and not received back, a presumption invariably drawn is that it has "reached" the addressee, which means that it is inferred that it has not been thrown away or delivered, to some one else. Where a letter has been correctly addressed and sent by registered post, this presumption (to use the words of the Judicial Committee) applies, with still greater force. If the, registered cover is not received back, the presump tion that it has reached the addressee has greater force. The reason is that greater care is taken by the postal authorities and the peon in delivering it to the addressee. If the notice is sent under an acknowledgment receipt, the letter has to be sent back to the sender with the signature of the addressee, but if both come back without his signature, has there not to be an explanation in the course of postal business for the unusual event of the registered letter and the acknowledgment receipt being sent back? Is this endorsement not made in the common course of postal business? Why should it be necessary, therefore, to call the postal peon to prove the endorsement formally. There is preponderance of authority in favour of drawing presumption and holding that registered cover had been refused by the addressee, and this presumption should normally be drawn. In the absence or evidence in rebuttal, the fact is proved and no other evidence t necessary to prove it. The addressee may, however, prove, with, onus lying on him, that it never reached him. If he denies it receipt, or there is evidence in rebuttal; even then the Court may not accept it as being sufficient to rebut the strong presumption, a in the Gresham House Estate Company's case.

21. In this particular case, the strong presumption which arises in favour of Mumtaz Khan respondent under section 114 of the Evidence Act, has been held as not rebutted by the denial by Rao Bashir Ahmad that the notice was not brought or tendered to him by any postman. It has been admitted by him that Mumtaz Khan had told him that the house had been transferred to him and that he had refused to pay the rent to him until the revisional proceedings, which he had initiated, were decided. In the circumstances, there is no difficulty in inferring that he would intentionally refuse to accept the post‑card sent to him as a notice. Since it was a post‑card, it could not be urged that he was not aware of its contents. There is not only the presumption under section 114 of the Evidence Act, but the effect of section 27 of the General Clauses Act is to prove that service of the notice has been effected, unless proved to the contrary, which a mere denial of service by Bashir Ahmad does not prove.

22. I, therefore, hold, agreeing with the Appellate Authority, that it has been proved that the necessary notice reached the appellant and was refused by him. Consequently, there is no force, in this second appeal, which is dismissed with costs. R. B. A. Appeal dismissed.