Ganga Saran Saini vs Smt. Dropdi Devi And Others
2011 Latest Caselaw 1293 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

AFR
 
RESERVED
 

 

 
Civil Misc. Writ Petition No. 15074 of 2011
 

 
Petitioner :- Ganga Saran Saini
 
Respondent :- Smt. Dropdi Devi And Others
 
Petitioner Counsel :- Vishnu Sahai,B. Dayal
 
Respondent Counsel :- P.K. Singh
 

 
Hon'ble Sanjay Misra,J. 

This is a tenant's writ petition. A SCC Suit No. 5 of 1988 was filed by the landlords for ejectment of the petitioner and for arrears of rent. The suit was decreed ex-parte on 27.09.1989. The landlord-owner is alleged to have executed two sale deeds in favour of Rajendra Prasad and Anil Kumar on 16.11.1994 and 24.11.1994. The respondents no. 1 to 15 of this writ petition are the heirs and legal representatives of the original owners namely late Raja Lal Sharma and late Brahma Swaroop Sharma.

The purchasers from the original owners filed an impleadment application in the suit. However, the same was rejected by the trial court and, therefore, the heirs and legal representatives of the original owners continued to contest the proceedings which were initiated by the petitioner after the ex-parte decree dated 27.09.1989.

According to the petitioner although the decree was obtained by the original owners on 27.09.1989 they filed an execution application in the year 2000. Notice was issued to the petitioner and the petitioner got inspected the records of the suit on 05.09.2000 when for the first time he leant about the ex-parte decree dated 27.09.1989 in SCC Suit No. 5 of 1988. The petitioner alleges to have filed an application on 05.09.2000 for setting aside the ex-parte decree. The respondents-owners filed objection dated 04.08.2007 whereupon by the order dated 29.08.2007 the application for recall of the ex-parte decree was dismissed. The petitioner filed Revision No.31 of 2007 which was also dismissed on 30.03.2009.

The petitioner alleges to have filed Writ Petition no. 12575 of 2009 wherein by the order dated 19.05.2009 the matter was remitted to the trial court to decide afresh the application of the petitioner filed under Order IX Rule 13 of the Code of Civil Procedure. The trial court allowed the application under Order IX Rule 13 of the Code of Civil Procedure on 23.10.2009. The respondent owners filed Revision No.18 of 2009 which has been allowed by the order dated 23.12.2010 whereagainst this writ petition has been filed.

Sri Vishnu Sahai has appeared on behalf of the petitioner and Sri P.K.Singh, Advocate has filed his power on behalf of respondents no.8 to 11 and has submitted that he is also representing the interest of respondents no.1 to 7 and 15 since all the respondents belong to the same family.

The submission of learned counsel for the petitioner is that no notice of the suit was ever served upon the petitioner and, therefore, the revisional court has committed an illegality in rejecting the application of the petitioner filed under Order IX Rule 13 of the Code of Civil Procedure and thereby maintaining the ex-parte decree of SCC Suit No. 5 of 1988. His submission is that the burden of proof was on the respondent owners to prove that service of the notice had been effected on the petitioner prior to the suit proceeding ex-parte against him. It has been stated that the signatures on the order sheet on two dates in the year 1989 purported to be that of the petitioner are fraudulent and emphatically denied by him. It is further stated that when the ex-parte decree was passed on 27.09.1989 then putting it into execution in the year 2000 is itself a doubtful conduct of the respondent owners although in the meantime they had sold the property to Rajendra Prasad and Anil Kumar on 16.11.1994 and 24.11.1994.

Learned counsel for the petitioner while laying emphasis on the burden of proof, has placed reliance on the following decisions the relevant paragraph whereof are quoted hereunder:-

1.Uttamrao Shivdas Jankar vs. Ranjitsingh Vijaysingh Mohite Patil (2009) 13 Supreme Court Cases 131.

"44. The presumption of correctness of the nomination paper being statutory in nature, as the intention of Parliament as also the Election Commission was that even if somebody had filed an improper nomination, but for which he can be given benefit of doubt being a possible subject-matter of an election petition where the question would be gone into in details, it was for the respondent herein to prove that the nomination paper prima facie did not contain the signatures of the proposers and, thus, were liable to be rejected."

2.Smt. Prakashi vs. Deputy Director of Consolidation, 2008 (105) RD 546

"4. In the present case petitioner has denied the service of the notice dated 6.6.2007 and has stated that her thumb impression on the notice was forged. No evidence has been adduced to the contrary. It is settled principle of law that the burden lies on the person, who is affecting the service of the notice to prove the proper service."

3.Dr. Munish Chandra Gupta vs. Additional District Judge and others 2008 (1) AWC 469.

"13. This Court in Ganga Ram v. Phoolwati, AIR 1970 All 446 (FB), has examined the relevant provisions of the Post Office Act and the Rules framed thereunder. It has also taken into consideration Section 27 of the General Clauses Act as well as Section 114 of the Evidence Act and has held 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. It also approved the orders of the courts below holding that in case of refusal of registered article by the addressee a presumption regarding service of such notice has also to be made under Section 27 of the General Clauses Act as well as under Section 114 of the Evidence Act. It has been observed that when a registered article or registered letter is handed over to an accepting or receiving post office. It is the official duty of the postal authorities to make delivery of it to the addressee. Human experience shows that except in a few exceptional cases, letters or articles received by the post office are duly, regularly and properly taken to the addressee. Consequently, as a proposition, it cannot be disputed that when a letter is delivered to an accepting or receiving post office, it is reasonably expected that in the normal course it would be delivered to the addressee. That is the official and the normal function of the post office.

14. There is no dearth of judicial pronouncements holding that a notice sent by registered post to a tenant which has been received back with the endorsement of refusal, a presumption of service of notice on the addressee can be drawn. In Gujarat Electricity Board and another v. Atmaram Sungomal Poshai, AIR 1989 SC 1433 (paragraph 8), it has been held that there is presumption of service of a 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."

He has further submitted that the petitioner-tenant had filed an affidavit before the trial court specifically averring that no notice was ever served upon him of the suit. He states that no affidavit in denial was filed by the respondents and hence the averments of his affidavit being uncontroverted were to be relied upon but the revisional court has erred in recording a finding contrary to the uncontroverted averments. In support of his submission he has placed reliance on the decisions relevant paragraphs whereof are quoted hereunder:-

A. Smt. Naseem Bano vs. State of U.P. and others 1993 (22) ALR (Supreme Court) 307.

"...............Since no dispute was raised on behalf of respondent Nos.1 to 4 in their reply to the averments made by the appellant in the writ petition that 40% of the total number of posts had not been filled by promotion inasmuch as the said averments had not been controverted the High Court should have proceeded on the basis that the said averments had been admitted by respondents."

B. Juggi Lal Kamla Pat vs. Ram Janki Gupta, AIR 1962 Allahabad 407.

"20. Learned counsel for the defendants sought to argue that it was not necessary to file any counter affidavit as the allegations of the plaintiff were on the face of it absurd and self-contradictory. We do not think it is open to a party to brush aside the averments of his opponent by merely stating that the allegations were untrue. A statement on oath whether true or false has to be met by a counter affidavit in reply or by challenging the statement by cross examining the deponent. If that is not done it would be presumed that the allegations, if untrue, would have been rebutted by the other side."

22. Here also the court below had before it a duly sworn affidavit of the pairokar of the plaintiff in support of his application and there was no counter affidavit in traverse of the allegations contained in that affidavit. Under the circumstances it was not open to the court to disbelieve the version of the plaintiff that he had brought his witnesses to the court on 24.5.56 shortly after the dismissal of the adjournment application."

C. Urmila Gupta (Smt.) vs. Ramesh Chandra Tripathi & others 2009 (1) ARC 140.

"6. Since no counter affidavit has been filed, this Court is treating the averments made in the writ petition as uncontroverted in view of the decisions of Hon'ble the Supreme Court in Choksi Tube Company Limited v. Union of India, 1997(II) SCC 19 and Naseem Bano v. State of U.P. and others, 1993 (22) ALR 307, wherein the Apex Court has laid down the law that where a plea taken is not controverted in reply, it amounts to admission of the plea."

Sri P.K.Singh, learned counsel for the respondents has placed reliance upon the decision of the Supreme Court in Gujarat Electricity Board and another vs. Atmaram Sungomal Poshani (1989) 2 Supreme Court Cases 602 and has referred to paragraph 8 of the decision which is quoted hereunder:-

" 8. There is presumption of service of a 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 respondent failed to discharge this burden as he failed to place material before the Court to show that the endorsement made by the postal authorities was wrong and incorrect. Mere denial made by,the respondent in the circumstances of the case was not sufficient to rebut the presumption relating to service of the registered cover. We are, therefore, of the opinion that the letter dated 24.4.1974 was served on the respondent and he refused to accept the same. Consequently,the service was complete and the view taken by the High Court is incorrect."

Sri P.K.Singh has also relied on a Full Bench decision of this court in the case of Ganga Ram vs. Phulwati 1970 AIR (Allahabad) 446.

Before considering the applicability of the decisions cited by learned counsel for the parties it would be appropriate to understand the facts of the case to find out as to upon whom the burden of proof lay.

The allegation is that when Suit No. 5 of 1988 was filed by the owners notice was issued to the petitioner tenant who is alleged to have appeared in the proceedings on 06.01.1989 and 23.02.1989. Thereafter when he did not appear in the suit it was decreed ex-parte on 27.09.1989. On the question of service of notice the revisional court has recorded that notice was issued by registered post A.D. being paper no. 13 Ga/1 which contained the signature of the petitioner tenant as acknowledgement of receipt. When the record contained the acknowledgement due receipt with the petitioner's signature alleged to be upon it and the petitioner denied service on affidavit then the signature was required to be disproved to hold that service was not effected on the petitioner tenant.

A presumption under section 114 of the Indian Evidence Act read with Section 27 of the General Clauses Act can be rebutted. When such a presumption is rebutted the burden of proof is on the person who has raised the plea of presumption. In the present case the plaintiff-respondent-owners had taken the objection that when the acknowledgement due receipt bearing the signature of the petitioner-tenant was available on record as paper no.13 Ga/1 then the presumption of service is made out. The petitioner-tenant denied the same by filing his affidavit. That was a rebuttal made by the petitioner-tenant. Therefore, when the presumption is to be proved by the person alleging presumption of service then the rebuttal of such presumption when made would normally require the plaintiff to prove service of notice.

In the present case the mode of service of notice adopted by the landlord owner was by registered post A.D. When a notice by registered post A.D. is sent at the correct address and duly stamped, a presumption can be drawn of its service even if the acknowledgement receipt has not been received back.

Before a Full Bench of this court in the case of Neena Chaturvedi Vs. Public Service Commissioner, Uttar Pradsesh reported in (2010) 4 UPLBEC 2876, the question referred was:-

"Whether in given facts and circumstances of the case, the post office is agent of the addressee (Commission) or sender and as to whether the petitioner can be made to suffer on account of default of the post office in delivering the application form of the petitioner to the Commission after last date of receipt of application form which was sent by the petitioner within prescribed time?"

It was answered by the Full Bench as quoted hereunder:-

"45. Even in respect of an agency the same is based on the principle, that the Principal is bound by the acts of the agent. Rule of agency in a case of merely inviting offers normally would not apply if a date for receipt of the acceptance is set out. Therefore, in such cases, if at all the law of agency applies it would be between the sender and the post office by virtue of the fact that the sender delivers the letters or articles to the post office. The post office is bound as an agent of the sender to deliver it to the addressee.

46. In our opinion, therefore, though as earlier pointed out the reference itself is not maintainable, we have clarified the law so as to avoid multiplicity of proceedings.

47. The reference is answered in the negative.

48. Reference is answered accordingly."

In the present case on the question of service of notice there are two aspects of the matter. The first is regarding sending of notice by registered post A.D. which is duly answered by the Full Bench in the case of Neena Chaturvedi (supra). Hence delivery of notice unless disproved has been affected since the Registered Post AD was correctly addressed and properly stamped.

The second is the rebuttal made by the petitioner-tenant of receiving the notice. Here the notice being paper no. 13Ga/1 is available on record which upon perusal by the court below a finding has been recorded that it bears the signature of the petitioner-tenant. In the application/affidavit filed by the petitioner-tenant, there could have been a specific averment that the signature appearing on the acknowledgement due receipt does not belong to him. In the affidavit available as Annexure 2 to the writ petition it is stated that his signature has been fraudulently affixed on the order sheet of the suit. There is no averment that his signature on the acknowledgement due receipt is not his signature. Therefore, the issue would not be for recording a finding whether the signature on the acknowledgement due receipt was made by the petitioner-tenant or not. Since there is no pleading or finding regarding the genuinity of the signature on the acknowledgement due receipt paper no. 13Ga/1 the rebuttal of service of notice was not prima facie or even effectively established because admittedly the signature on the acknowledgement due receipt was never put to test to be proved or disproved by either of the parties by summoning an expert report or by any other evidence.

When a signature is denied by a party to have been made on a document one of the common mode of proving such denial is to obtain an expert report and although the expert report is not binding on the court, the court can always record a finding on the genuinity or ingenuinity of the signature by comparing it on mere appearance. None of the two modes were adopted for recording a finding regarding the signature on the acknowledgement due receipt in the present case either by the parties or by the court. Therefore, in absence of an issue pleaded or framed regarding the genuinity of the signatures on the acknowledge due receipt by the petitioner-tenant it cannot be held that the signature on the acknowledgement due receipt was not made by the petitioner-tenant.

In view of the aforesaid circumstances when the post office is bound as an agent of the sender to deliver the Registered Post A.D. notice to the addressee it has to be presumed that when the respondent landlord sent the notice through registered post A.D. the same was effectively delivered. The submission that it was never tendered or served on the petitioner-tenant is not proved by any evidence. Consequently when the presumption of delivery of the registered post A.D. notice sent through the post office is to be in favour of the sender and there is no proof or evidence that the signature of the petitioner tenant on the acknowledgement due receipt is not his, the notice was duly delivered by the post office particularly when the acknowledgement was returned by the Post Office to the sender with the signature of acceptance.

Insofar as the submission that the petitioner-tenant had filed affidavit regarding denial of service and it was not controverted by the respondent landlord by filing affidavit is concerned, there is no doubt that the affidavit of the petitioner-tenant went uncontroverted due to non-filing of counter affidavit but by filing only an objection. The benefit of such uncontroverted affidavit could have been available to the petitioner-tenant in case the finding of service of registered post notice was to be recorded only on the basis of such averment in the affidavit if there was no other evidence. The revisional court has recorded its finding on the evidence in the form of acknowledgement due receipt paper no.13 Ga/1 which was a relevant piece of documentary evidence and could not be discarded only on the basis of an averment of rebuttal made in the affidavit of the petitioner-tenant. Therefore, even if the affidavit filed by the petitioner-tenant was uncontroverted the finding recorded by the revisional court is based on cogent and relevant documentary evidence in the form of paper no. 13 Ga/1, hence no benefit can be given to the petitioner-tenant for the reason that his affidavit of rebuttal went uncontroverted but was contested by an objection. The petitioner-tenant has admittedly failed to discharge his burden by placing any material on record to show that his signature made on the acknowledgement due receipt duly returned by the postal authorities signifying acceptance was wrong and incorrect. In such circumstances mere denial made by the petitioner-tenant was not sufficient to rebut the presumption based on documentary evidence relating to service of registered post notice.

Therefore there was no burden to prove the sending and delivery of the Registered Post Notice by the respondent landlords since it was a presumed and actual service upon the petitioner tenant. The rebuttal could be proved only when the signature on the acknowledgement due receipt (of the petitioner-tenant) was disproved. To that extent the burden of proof was on the petitioner-tenant who could deny his signature. It having been not done nor signatures on acknowledgement due receipt denied the petitioner-tenant cannot now resile from his stand at the stage of a writ petition under Article 226 of the Constitution of India.

Learned counsel for the petitioner-tenant has referred to a decision of the Supreme Court in Uttamrao Shivdas Jankar vs. Ranjitsingh Vijaysingh Mohite Patil (supra). In that case it was found that the respondent who had alleged improper nomination of the other side was to prove that the nomination paper prima facie did not contain the signatures of the proposers. This decision is clearly against the submission advanced by learned counsel for the petitioner. In the case of Dr. Munish Chandra Gupta (supra) the court considered an earlier Full Bench decision of the High Court in the case of Ganga Ram v. Phoolwati, AIR 1970 Alld 446 and it was clearly held that the burden to rebut the presumption lies on the party challenging the factum of service. In the present case the petitioner-tenant has challenged the factum of service, clearly the burden was upon him to rebut the presumption of service of notice and as such the petitioner cannot gain any benefit from the aforesaid decisions.

For the reasons discussed above, there is no merit in this writ petition which is liable to be dismissed.

The revisional court has rightly set aside the judgment and order passed by the trial court and no error or illegality can be found in the reasoning and conclusions given by the revisional court.

The writ petition is, therefore, dismissed.

No order is passed as to costs.

PK/22.04.2011