1989SCMR880 (PLP)

ZAFFAR HUSSAIN MIRZA, J.‑‑Leave was granted in this case to consider the question whether the service of notice under section 30 of Displaced Persons (Compensation and Rehabilitation) Act, 1958, issued to appellant No.2 who was undergoing imprisonment at the relevant time, in Hyderabad Central Jail was rightly field good by the Court below on the basis of the endorsement of "refusal" thereon made by the postal authorities.

2. The property in dispute consists of a house bearing No.C/463, which was transferred to the respondent by the Settlement Authorities on 23rd November, 1967. According to the findings of High Court the said property was recorded in the records of the Settlement Department as being in occupation of appellant Muhammad Hussain. But since at the time of its transfer it was in occupation of Muhammad Hussain and his brother Piridino, the respondent addressed the section 30 notice jointly to them but the notice was refused as reported by the postal authorities. The endorsement of refusal disclosed that Muhammad Hussain, at the relevant time, was serving sentence of imprisonment of the Central Jail at Hyderabad. Accordingly, the respondent addressed another notice through the Superintendent of the Jail m the name of Muhammad Hussain. This notice was also returned with the endorsement of refusal by the postal authorities. After waiting for the requisite statutory period, the respondent filed an ejectment application against the appellants, inter alia on the ground that the appellants being statutory tenants in the premises were liable to be ejected by reason of their failure to pay rent in spite of notice. The appellants resisted the action of their ejectment on the plea that there existed no relationship of landlord and tenant between the parties, primarily on the ground that no notice under section 30 was ever offered to them or refused by them.

3. The learned Rent Controller framed a primary issue and gave a finding against the appellants holding that they were statutory tenants as it was established on record that in spite of proper notice they had failed to pay rent. Accordingly he passed an order of ejectment against them on 29th January, 1980. 4.The appellants challenged the order in an appeal before the Sind High Court and raised the plea that the respondent had failed to prove by legal evidence that section 30 notice was served on the appellants and therefore they were guilty of non‑payment of rent. As far as the first notice is concerned since the recorded tenant, namely, Muhammad Hussain was admittedly confined in jail, the learned Judge in the High Court did not place much reliance upon it. As to the second notice he took the view that it was duly served for the reasons which appear in the following passage of his judgment: "Even if the first notice is not relied upon, the second notice Exh.103 must be taken to have been properly addressed to the appellant and the endorsement of refusal must be taken as proper service. Learned counsel for the appellants has argued that if any letter is sought to be delivered to prisoner it cannot be done without the permission of the Superintendent of the Jail and that the envelope Exh.103 does not contain any endorsement of the Jail authorities. The objection is baseless because the notice was not accepted by the addressee at all hence there was no need of endorsement by the Jail authorities on the envelope. There is no rule that a letter addressed to a prisoner if refused by him, cannot be returned by the postal authorities to the sender without any endorsement of the Jail authorities." In this view of the matter the learned Judge affirmed the findings of Rent Controller and dismissed the appeal vide judgment, dated 24th January, 1982. . 5; The respondent in spite of service of notice has remained absent. Learned counsel for the appellant has contended that the notice on which reliance has been placed was not duly served and the learned Single Judge erred in basing his findings on the presumption that the same was duly served. The submission of the learned counsel was that in the face of express denial on the part of the appellants that the notice was not delivered to them nor was it refused, it was incumbent upon the respondent to examine the postman in order to prove actual delivery of the letter to the appellant or to Muhammad Hussain who was confined in jail. Learned counsel invited our attention to the case of Gulzar Begum v. Mst. Sairah Bibi 1972 S C M R 251, in which it was held that where the addressee of the letter appears in Court and denies service of notice, the legal presumption of service is repudiated and it becomes necessary for the sender of the notice to either establish the genuineness of the signatures of addressee on the endorsement of refusal by comparison with admitted documents or by examination of the postman to prove that the letter was offered to the addressee and that it was refused.

6. We find much force in the submission of the learned counsel. In their written statement the appellants had taken the plea categorically denying having received any notice from the respondent or having refused to accept the same. Even in his evidence Muhammad Hussain has denied that he refused the letter during the time he was in confinement. In the circumstances in accordance with the rule laid down by this Court the respondent did not discharge the onus of proof regarding the service of notice. Even apart from this it is rather surprising that the endorsement on the letter addressed to the appellant while he was in Jail custody does not contain any verification from the Jail authority that the letter was offered to the prisoner and was refused. It is difficult to conceive of the postman to have entered the Jail premises to directly offer the letter to the prisoner. Our attention was invited to rules 457 and 467 of the Bombay Jail Manual which provided that no letter shall be delivered to a convict without written permission of the Jail authority. Learned counsel submitted that under the Pakistan Prisons Rules similar position obtains and no letter can be delivered to a prisoner until it has been examined by the Jail authority. In view of these legal provisions, there appears good reason to hold that the letter in question was not offered to the appellant. The inevitable conclusion, therefore, is that the presumption of due service stands sufficiently displaced. In absence of positive evidence that the notice was refused by the appellant, the finding that he was guilty in spite of service of section 30 notice to pay rent, is unsustainable. 7.In the result this appeal is allowed and the order of eviction passed against the appellants is set aside with no order as to costs. A.A./P‑76/S Appeal allowed.