1. The petitioner claims to have been enrolled in the Provincial Armed Constabulary in the year, 1960. The services of the petitioner were terminated on 04.09.1968. The petitioner further claims to have filed a departmental appeal against the order of termination in the year 1968. The departmental appeal was not decided, though the petitioner made several representations to the authorities. Aggrieved by the alleged inaction of the respondent authorities, the petitioner invoked the extraordinary jurisdiction of this Court under Article 226 of the Constitution of India by instituting a writ petition registered as Writ A No. 58380 of 2005 (Ibadat Hussain Khan Vs. State of U.P. and Ors). The said writ petition was finally disposed of by judgment and order entered by this Court on 01.09.2005. The order dated 01.09.2005 passed by this Court is extracted hereunder:
"It is, alleged that the statutory appeal filed by the petitioner in the year 1968 has yet not been decided. The statement so made on behalf of the petitioner, normally, cannot be accepted and therefore without entering into the controversy raised before the court it is provided that in case the appeal filed by the petitioner has not been decided and the same is still pending for disposal, the appellate authority shall take all appropriate steps to decide the appeal of the petitioner at an early date. Writ petition is disposed of."
2. Pursuant to the order dated 01.09.2005 passed by this Court in the aforesaid writ petition, the respondent authorities rejected the representation of the petitioner by order dated 26.10.2007.
3. The petitioner is aggrieved by the order dated 26.10.2007 passed by the respondent no. 3 rejecting the representation of the petitioner. He has instituted the instant writ petition registered as Writ A No. 11951 of 2008 (Ibadat Hussain Khan Vs. State of U.P. and Ors.) assailing the order dated 26.10.2007.
4. An order was passed by this Court on 03.05.2018 in Writ- A No. 11951 of 2008, the order is extracted hereunder:
"By means of this writ petition, the petitioner seeks to challenge the order passed by the Commandant 20 Battalion (PAC), Raibareilly showing his inability to take a decision on Departmental Appeal which was claimed by the petitioner to have been filed against the order of dismissal from service dated 14.9.1968.
The petitioner states in paragraph 8 of the writ petition that when the messenger came from the department he informed that there was no appeal traceable in the office of the Appellate Authority and the petitioner himself had handed over a copy to the messenger. The said paragraph 8 of the writ petition has been denied in paragraph 11 of the counter affidavit and a supporting document has been annexed in which the petitioner had made a note that no documents were available to him and all were filed in Court and the same could be obtained from Court.
Affidavits have been filed against affidavit but the substantial question remains of the disposal of appeal. The memo of appeal has been filed along with this writ petition as annexure 3 of the writ petition. This writ petition has been duly served upon the Standing Counsel and counter affidavit to that has already been filed. Since, the memo of appeal has been annexed as annexure 3 to the writ petition it is quite obvious that the respondents have now come to know about the memo of appeal.
Learned Standing Counsel shall ensure that a copy of the present writ petition along with appended documents is transmitted to the third respondent within period of two weeks' from today.
And on the receipt of such writ petition in the office of the third respondent, he shall take a decision on department appeal in accordance with law after giving opportunity of hearing to the petitioner within six weeks thereafter.
The decision taken on appeal will be transmitted in sealed cover to this Court by the next date fixed.
List this matter on 23.7.2018 and by the next date fixed respondent concerned shall also file an affidavit to the effect that he has complied with the order of this Court.
A certified copy of this order shall be supplied within 24 hours to learned Standing Counsel free of cost for necessary compliance."
5. Sri Vijay Pratap Singh, leaned Standing Counsel at the very outset submits that the correct and complete facts and the correct position of law was not pointed out to this Court when the order dated 03.05.2018 was passed. Sri Vijay Pratap Singh, learned Standing Counsel further contends that there are certain legal impediments with far-reaching consequences which come in way of the compliance of the order dated 03.05.2018 passed by this Court in the writ petition. Records of the case or the petitioner are not available with the State respondents. There is little possibility of searching out or authentically reconstructing the records after almost 50 years. The appeal of the petitioner cannot be decided in the absence of the original records of the case and the service records of the petitioner. A decision on the appeal has to be made on the footing of entire original records of the case and the service of the petitioner and not merely the memo of appeal. He further submits that the writ petition may be decided finally, so that the controversy is adjudicated with finality and the law may be stated with certainty. In view of the submissions made at the bar and the fact that the pleadings are complete the writ petition is being decided finally.
6. Sri Vijay Pratap Singh, learned Standing Counsel raises a preliminary objection regarding the maintainability of the writ petition. The learned Standing Counsel submits that the writ petition is barred by the delay and laches on the part of the petitioner. The order passed by this Court on 01.09.2005 passed in Civil Misc. Writ Petition No. 58380 of 2005, (Ibadat Hussain Khan Vs. State of U.P. and Ors), does not confer any right to the petitioner nor does it condone the laches on his part. The order impugned in the writ petition dated 26.10.2007 does not provide a cause of action to the petitioner. He further submits that no appeal had been filed by the petitioner against the order of termination. There is no proof of service of the memo of appeal to the competent authority in the writ petition. He submits that no presumption of service of the memo of appeal can be made in favour of the petitioner.
7. Sri M. A. Khan, learned counsel for the petitioner in response to the preliminary objections raised by the learned Standing Counsel submits that the cause of action arose on 26.10.2007 when the order rejecting the representation of the petitioner was passed. The petitioner had filed an appeal in the year 1968 before the respondent authorities and the same had not been decided for the past 50 years. The petitioner had regularly been approaching the authorities to decide his appeal but to no avail.
8. Heard learned counsel for the parties and perused the record.
9. The petitioner claims to be an employee in the Provincial Armed Constabulary. He was allegedly dismissed from service in the year 1968. The petitioner claims that he had filed an appeal in the year 1968 before the departmental authorities against the order of termination. The appeal was never decided by the respondent authorities. The petitioner made strenuous efforts to get the appeal decided over the decades, but to no avail. The petitioner first approached this Court in the year 2005 by instituting a writ petition registered as Writ A No 58380 of 2005(Ibadat Hussain Khan Vs. State of U.P. and Ors.).
10. The cause of action for the petitioner arose in the year, 1968 when he was dismissed from service and he instituted an appeal in the same year. Subsequent cause of action arose when the authorities failed to decide the appeal within a reasonable time frame. The petitioner approached this Court for the first time in the year, 2005 i.e. almost after 37 years since the occurrence of the cause of action. The respondents have categorically raised the issue of delay and laches on the part of the petitioner. The prejudice caused to the respondent authorities by delay and laches on the part of the petitioner is amply demonstrated by the averments made in the counter affidavit.
11. The courts are required by law to apply their mind to the question and consequences of delay and laches and enter a finding thereon, before exercising their discretionary power under Article 226 of the Constitution of India.
12. The courts have consistently observed that delay and laches on part of the litigant will disentitle him to any relief. In this regard the Hon'ble Supreme Court has settled the law with clarity and observed it with consistency. The line of authorities on this point is both consistent and long. It would be apposite to cite same authorities which would give a good sense of law on the point.
13. The Hon'ble Supreme Court in the case of R & M Trust Vs. Koramangala Residents Vigilance Group and others reported at 2005 (3) SCC 91 held thus:-
"There is no doubt that delay is a very important factor while exercising extraordinary jurisdiction under Article 226 of the Constitution. We cannot disturb the third party interest created on account of delay. Even otherwise also why Court should come to rescue of person who is not vigilant of his rights."
14. The Hon'ble Supreme Court in the case of Maharashtra State Road Transport Corporation Vs. Balwant Regular Motor Service reported at AIR 1969 SC 329 held thus:
"Now the doctrine of laches in Courts of Equity is not an arbitrary or a technical doctrine. Where it would be practically unjust to give a remedy, either because the party has, by his conduct, done that which might fairly be regarded as equivalent to a waiver of it, or where by his conduct and neglect he has, though perhaps not waiving that remedy, yet put the other party in a situation in which it would not be reasonable to place him if the remedy were afterwards to be asserted in either of these cases, lapse of time and delay are most material. But in every case, if an argument against relief, which otherwise would be just, is founded upon mere delay, that delay of course not amounting to a bar by any statute of limitations, the validity of that defence must be tried upon principles substantially equitable. Two circumstances, always important in such cases, are, the length of the delay and the nature of the acts done during the interval, which might affect either party and cause a balance of justice or injustice in taking the one course or the other, so far as relates to the remedy."
15. A similar sentiment was echoed by the Hon'ble Supreme Court in the case of Shiv Dass Vs. Union of India reported at 2007 (9) SCC 274 the Hon'ble Supreme Court opined as under:-
"the High Court does not ordinarily permit a belated resort to the extraordinary remedy because it is likely to cause confusion and public inconvenience and bring in its train new injustices, and if writ jurisdiction is exercised after unreasonable delay, it may have the effect of inflicting not only hardship and inconvenience but also injustice on third parties. It was pointed out that when writ jurisdiction is invoked, unexplained delay coupled with the creation of third party rights in the meantime is an important factor which also weighs with the High Court in deciding whether or not to exercise such jurisdiction."
16. When the issue of delay and laches came up before the Hon'ble Supreme Court in the case of Shankara Co-op Housing Society Ltd. Vs. M. Prabhakar and Ors reported at 2011(5)SCC 607 the Hon'ble Supreme Court reiterated settled position of law and confirmed the well established criteria which has to be considered before exercise of discretion under Article 226 of the Constitution of India. The relevant portion is extracted hereinbelow:-
"53. The relevant considerations, in determining whether delay or laches should be put against a person who approaches the writ court under Article 226 of the Constitution is now well settled. They are: (1) there is no inviolable rule of law that whenever there is a delay, the court must necessarily refuse to entertain the petition; it is a rule of practice based on sound and proper exercise of discretion, and each case must be dealt with on its own facts. (2) The principle on which the court refuses relief on the ground of laches or delay is that the rights accrued to others by the delay in filing the petition should not be disturbed, unless there is a reasonable explanation for the delay, because court should not harm innocent parties if their rights had emerged by the delay on the part of the Petitioners. (3) The satisfactory way of explaining delay in making an application under Article 226 is for the Petitioner to show that he had been seeking relief elsewhere in a manner provided by law. If he runs after a remedy not provided in the Statute or the statutory rules, it is not desirable for the High Court to condone the delay. It is immaterial what the Petitioner chooses to believe in regard to the remedy. (4) No hard and fast rule, can be laid down in this regard. Every case shall have to be decided on its own facts. (5) That representations would not be adequate explanation to take care of the delay."
17. The Hon'ble Supreme Court also noticed the ingenuous devices adopted by unscrupulous litigants to tide over the delay and laches on part of such litigants. One such commonly used device is by filing a representation to the authorities after a long delay. Such litigants then approach the Court with an innocuous prayer to decide the representation. Once such representation is decided in compliance of orders of the court, it is claimed that a fresh cause of action has arisen. Stale wine does not became fresh in a new bottle. The Hon'ble Supreme Court saw through the designs of such litigants and foiled their intent in no uncertain terms.
18. The Hon'ble Supreme Court considered this issue in the case of C. Jacob Vs. Director of Geology & Min. Indus. Est. and another reported at 2008 (10) SCC 115. The law laid down by the Hon'ble Supreme Court would guide the fate of the case. The relevant extract of the judgment is reproduced hereunder for ease of reference :-
"6. Let us take the hypothetical case of an employee who is terminated from service in 1980. He does not challenge the termination. But nearly two decades later, say in the year 2000, he decides to challenge the termination. He is aware that any such challenge would be rejected at the threshold on the ground of delay (if the application is made before Tribunal) or on the ground of delay and laches (if a writ petition is filed before a High Court). Therefore, instead of challenging the termination, he gives a representation requesting that he may be taken back to service. Normally, there will be considerable delay in replying such representations relating to old matters. Taking advantage of this position, the ex-employee files an application/writ petition before the Tribunal/High Court seeking a direction to the employer to consider and dispose of his representation. The Tribunals/High Courts routinely allow or dispose of such applications/petitions (many a time even without notice to the other side), without examining the matter on merits, with a direction to consider and dispose of the representation. The courts/tribunals proceed on the assumption, that every citizen deserves a reply to his representation. Secondly they assume that a mere direction to consider and dispose of the representation does not involve any `decision' on rights and obligations of parties. Little do they realize the consequences of such a direction to `consider'. If the representation is considered and accepted, the ex-employee gets a relief, which he would not have got on account of the long delay, all by reason of the direction to `consider'. If the representation is considered and rejected, the ex-employee files an application/writ petition, not with reference to the original cause of action of 1982, but by treating the rejection of the representation given in 2000, as the cause of action. A prayer is made for quashing the rejection of representation and for grant of the relief claimed in the representation. The Tribunals/High Courts routinely entertain such applications/petitions ignoring the huge delay preceding the representation, and proceed to examine the claim on merits and grant relief. In this manner, the bar of limitation or the laches gets obliterated or ignored".
19. A similar view was taken by the Hon'ble Supreme Court in the case of S.S. Rathore Vs. State of Madhya Pradesh reported at 1989 (4) SCC 582. The relevant extract of the judgment is reproduced hereunder for ease of reference :-
"It is proper that the position in such cases should be uniform. Therefore, in every such case only when the appeal or representation provided by law is disposed of, cause of action shall first accrue and where such order is not made, on the expiry of six months from the date when the appeal was filed or representation was made, the right to sue shall first accrue. Submission of just a memorial or representation to the Head of the establishment shall not be taken into consideration in the matter of fixing limitation."
20. Law has long set its face against delay in approaching the court. The courts have consistently declined to condone the delay and denied relief to litigants who are guilty of laches. Litigants who are in long slumber and not vigilant about their rights are discouraged by the courts. Belated claims are rejected at the threshold. Rip Van Winkles have a place in literature, but not in law !
21. All this is done on the foot of the rule of delay and laches. Statutes of limitation are ordained by the legislature, rule of laches was evolved by the courts. Sources of the law differ but the purpose is congruent. Statutes of limitation and the law of delay and laches are rules of repose.
22. The rule of laches and delay is founded on sound policy and is supported by good authority. The rule of laches and delay is employed by the courts as a tool for efficient administration of justice and a bulwark against abuse of process of courts.
23. Some elements of public policy and realities of administration of justice may now be considered.
24. While indolent litigants revel in inactivity, the cycle of life moves on. New realities come into existence. Oblivious to the claims of the litigants, parties order their lives and institutions their affairs to the new realities. In case claims filed after inordinate delay are entertained by courts, lives and affairs of such individuals and institutions would be in a disarray for no fault of theirs. Their lives and affairs would be clouded with uncertainty and they would face prospects of long and fruitless litigation.
25. The delay would entrench independent third party rights, which cannot be dislodged. The deposit of subsequent events obscures the original claim and alters the cause itself. The refusal to permit agitation of stale claims is based on the principle of acquiescence. In certain situations, the party by its failure to raise the claim in time waives its right to assert it after long delay.
26. The rule of delay and laches by preventing the assertion of belated claims puts to final rest long dormant claims. This policy of litigative repose, creates certainty in legal relations and curtails fruitless litigation. It ensures that the administration of justice is not clogged by pointless litigation.
27. The above stated position of law on the question of delay and laches on part of the petitioner is applicable to the facts of the case. There is no satisfactory explanation of the delay in writ petition. The claims of the petitioner are made on public money. The relief sought is against the State Government to release of back wages within interest. The specific facts of this case have raised a larger question of law. The facts of the case need of closer look.
28. The above stated position of law on the question of delay and laches on part of the petitioner is applicable to the facts of the case. There is no satisfactory explanation of the delay in writ petition.
29. The order dated 01.09.2005 passed by this Court in Writ A No. 58380 of 2005 and the consequent order passed by the competent authority rejecting the representation of the petitioner dated 26.10.2007, do not create a fresh cause of action for the petitioner. In the light of the law laid down by the Hon'ble Supreme Court, the order passed by this Court dated 01.09.2005 does not condone the laches of the petitioner and the order passed by the competent authority dated 26.10.2007 does not furnish a cause of action to the petitioner. The same cannot absolve the petitioner of the delay and laches on his part in approaching this Court.
30. In the light of the settled position of law discussed above and the admitted position of facts narrated in the preceding paragraphs, the cause of action for the petitioner arose in the year, 1968. The petitioner has failed to explain the delay and laches on his part in the instant writ petition. The delay on the part of the petitioner is inordinate. Such a delay of several decades can neither be explained nor is it explainable. The writ petition is liable to be dismissed on the ground of delay and laches alone.
31. However, there are other aspects of the matter which may also be considered. The petitioner has claimed that an appeal was filed by him. He further claims that the appeal was sent to the appellate authority by registered post "through proper channel". The petitioner has appended certain registered post receipts purportedly of the year, 1968. However, no date of institution of the appeal has been pleaded in the writ petition. On the foot of the aforesaid pleading and documents in the record, the petitioner seeks to draw a presumption of service of the memo of appeal by a registered post upon the appellate authority. The assertions made in the writ petition regarding the alleged service of memo of appeal upon the appellate authority "through proper channel" have been traversed and squarely refuted in the counter affidavit. It is categorically asserted in the counter affidavit that no appeal is available in the official records of the respondent authorities and nor any appeal is pending for disposal before the competent authority.
32. The presumption of service or any communication or notice by registered post upon the addressee is drawn on the foot of the provisions of Section 114 of the Evidence Act, 1872 and Section 27 of the General Clauses Act, 1897. The relevant provisions of the Evidence Act, 1872 and General Clauses Act, 1897 are reproduced for ease of reference hereunder:
Section 114 of the Evidence Act 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_
(a) That a man who is in possession of stolen goods soon after the theft is either the thief or has received the goods knowing them to be stolen, unless he can account for his possession;
(b) That an accomplice is unworthy of credit, unless he is corroborated in material particulars;
(c) That a bill of exchange, accepted or endorsed, was accepted or endorsed for good consideration;
(d) That a thing or state of things which has been shown to be in existence within a period shorter than that within which such things or state of things usually cease to exist, is still in existence;
(e) That judicial and official acts have been regularly performed;
(f) That the common course of business has been followed in particular cases;
(g) That evidence which could be and is not produced would, if produced, be unfavourable to the person who withholds it;
(h) That if a man refuses to answer a question which he is not compelled to answer by law, the answer, if given, would be unfavourable to him;
(i) That when a document creating an obligation is in the hands of the obligor, the obligation has been discharged.
Section 27 of the General Clauses Act, 1897:
Meaning of service by post-
"Where any 13 [Central Act] or Regulation made after the commencement of this Act authorizes 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."
33. To draw the presumption of service by registered post, under Section 27 of the General Clauses Act, the conditions precedent or the factual pre-requisites of drawing such presumptions, have to be fully established. The party seeking draw the presumption in its favour to has to irrefutably establish that the letter was sent to the proper address of the addressee after prepaying the postal stamps. The party also has to assert and prove that the letter was posted by registered post. In case at hand, the pleadings in the writ petition are inadequate. There is no averment in the writ petition that the service was made upon the appellate authority at the correct address after prepaying the postal duty. The averment in the writ petition is equally vague about the "proper channel". The designation, or the appellation of the authority concerned and its proper address are not disclosed in the pleadings or in the registered post receipts appended to the writ petition. The date of filing of appeal has also not been stated with all particulars. In any case, the documents which are appended purportedly in support of the fact that the memo of appeal was served upon the appellate authority cannot be considered in the absence of clear pleadings to this effect.
34. The purpose of clear pleadings is to put the opposite party to notice about the case of the party asserting the fact. It ensures that the adversary never springs a surprise on the opposite party. This law of pleading is a critical element in the administration of justice, inasmuch as, it enables a party to know the case against it and to tender its defence in regard thereto.
35. At this stage it would be apposite to fortify the legal narrative by some authorities in point.
36. The Hon'ble Supreme Court in the case of Bacchaj Nahar Vs. Nilima Mandal and others, reported at (2008) 17 SCC 491 considered the object and purpose of pleadings in court proceedings held as under:
"The object and purpose of pleadings and issues is to ensure that the litigants come to trial with all issues clearly defined and to prevent cases being expanded or grounds being shifted during trial. Its object is also to ensure that each side is fully alive to the questions that are likely to be raised or considered so that they may have an opportunity of placing the relevant evidence appropriate to the issues before the court for its consideration. This Court has repeatedly held that the pleadings are meant to give to each side intimation of the case of the other so that it may be met, to enable courts to determine what is really at issue between the parties, and to prevent any deviation from the course which litigation on particular causes must take."
37. The issue of deficiency in pleadings causing prejudice to the opposite party and consequent miscarriage of justice arose in the case of Bhagwati Prasad v. Chandramaul, reported at AIR 1966 SC 735. The Constitution Bench of the Hon'ble Supreme Court laid down the law in not uncertain terms that in case deficiency in pleadings caused prejudice or miscarriage of justice, the party making the pleadings is disentitled to rely on such pleadings. The Hon'ble Supreme Court in Bhagwati (supra) laid down the law in following terms:-
" If a plea is not specifically made and yet it is covered by an issue by implication, and the parties knew that the said plea was involved in the trial, then the mere fact that the plea was not expressly taken in the pleadings would not necessarily disentitle a party from relying upon it if it is satisfactorily proved by evidence. The general rule no doubt is that the relief should be founded on pleadings made by the parties. But where the substantial matters relating to the title of both parties to the suit are touched, though indirectly or even obscurely, in the issues, and evidence has been led about them, then the argument that a particular matter was not expressly taken in the pleadings would be purely formal and technical and cannot succeed in every case. What the Court has to consider in dealing with such an objection is: did the parties know that the matter in question was involved in the trial, and did they lead evidence about it? If it appears that the parties did not know that the matter was in issue at the trial and one of them has had no opportunity to lead evidence in respect of it, that undoubtedly would be a different matter. To allow one party to rely upon a matter in respect of which the other party did not lead evidence and has had no opportunity to lead evidence, would introduce considerations of prejudice, and in doing justice to one party, the Court cannot do injustice to another."
38. Issue of consideration of evidence in absence of pleadings came up for consideration before the Hon'ble Supreme Court in Ram Sarup Gupta v. Bishun Narain Inter College reported at 1987 (2) SCC 555. The Hon'ble Supreme Court declined to permit the parties to adduce evidence in the absence of requisite pleadings, by holding thus:
"It is well settled that in the absence of pleading, evidence, if any, produced by the parties cannot be considered. It is also equally settled that no party should be permitted to travel beyond its pleading and that all necessary and material facts should be pleaded by the party in support of the case set up by it. The object and purpose of pleading is to enable the adversary party to know the case it has to meet. In order to have a fair trial it is imperative that the party should settle the essential material facts so that other party may not be taken by surprise. The pleadings however should receive a liberal construction; no pedantic approach should be adopted to defeat justice on hair-splitting technicalities. Some times, pleadings are expressed in words which may not expressly make out a case in accordance with strict interpretation of law. In such a case it is the duty of the court to ascertain the substance of the pleadings to determine the question. It is not desirable to place undue emphasis on form, instead the substance of the pleadings should be considered. Whenever the question about lack of pleading is raised the enquiry should not be so much about the form of the pleadings; instead the court must find out whether in substance the parties knew the case and the issues upon which they went to trial. Once it is found that in spite of deficiency in the pleadings parties knew the case and they proceeded to trial on those issues by producing evidence in that event it would not be open to a party to raise the question of absence of pleadings in appeal."
39. The pleadings and the records in the writ petition do not establish the prerequisites for drawing a presumption of service of the appeal on the appellate authority in the year 1968 under Section 27 of the General Clauses Act read with Section 114 of the Indian Evidence Act. The pleadings of service of memo of appeal asserted in the writ petition, have been duly traversed and specifically denied in the counter affidavit.
40. The respondents on their part have repelled the presumption of service of the memo of appeal by registered post. In the light of the pleadings in the counter affidavit the authencity of the receipt of the registered post becomes doubtful. The burden of proving the authencity of the said receipts is on the petitioner. The only authority which can attest the authencity of the receipts is the postal authority. The department of posts has not been impleaded as a party respondent in the instant writ petition. The petitioner has failed to establish the authencity of the registered post receipts.
41. The Bombay High Court in the case of Meghji Kanji Patel vs. Kundanmal Chamanlal Mehtani, reported at A.I.R. 1968 Bom 387, considered the issue of presumption of service of letter to be drawn under Section 114 of the Indian Evidence Act read with Section 27 of the General Clauses Act. The Bombay High Court held the presumption of service under the said provisions was a rebuttable one. In case the parties successfully refute the pre-requisites of such presumption, the same will not be drawn in favour of the party claiming presumption of service.
42. In Meghji Kanji Patel (supra), the Bombay High Court stated the position of law in the following terms:
"I am afraid, the learned Judge has lost sight of the fact that sending of a letter by registered post merely raises a rebuttable presumption that the letter was delivered to the addressee. In a case where the addressee makes a statement on oath that such a letter was not tendered to him, the presumption stands rebutted. Mr. Gandhi has drawn my attention to the judgment of Mr. Chagla, the then Chief Justice of Bombay, in the case of Appabhai Motibhai v. Laxmichand [(1953) 55 Bom. L.R. 916.] , in which it has been held that O. V, r. 21A, of the Code of Civil Procedure provides for substituted service. Ordinarily, service must be effected personally upon a defendant. Service by a registered post is a special facility to the Court in these modern days to effect service by registered post. But even so that convenience must be properly circumscribed so as not to defeat the ends of justice and it would be a very serious thing if a defendant was not entitled to have an ex-parte decree set aside although that decree was passed on an endorsement made by a postman that the packet had been offered to the defendant and he had refused it. The learned Chief Justice held that, in his opinion, when the defendant came and stated that the registered letter containing a summons was not tendered to him, the Courts below were wrong in refusing to set aside the ex-parte decree on the application made by the defendant. With the above judgment, I respectfully agree. Where an ex-parte decree is passed after the writ of summons has been sent to a defendant by registered post and the cover containing the summons has been returned with the postal endorsement "refused", it is undoubtedly for the defendant to satisfy the Court that the letter was not tendered to him. But the defendant can only do so by making a statement on oath. This must usually remain uncontroverted, unless the postman, who tendered the letter to him, is summoned and makes a statement that he tendered the cover containing the summons to the defendant and after cross-examination, his evidence is believed. In this case, the plaintiff did not summon the postman. The statement on oath of the defendant remained uncontroverted and, in my opinion, there was sufficient ground for setting aside the ex-parte decree and, accordingly, I make an order setting aside the ex-parte decree."
43. The law laid down by the learned Single Judge of the Bombay High Court in Meghji Kanji Patel (supra) was upheld. The Hon'ble Supreme Court in the case of Puwada Venkateswara Rao v. Chidamana Venkata Ramana, reported at (1976) 2 SCC 409 held thus:
" A question raised before us by learned Counsel for the respondent is whether the notice sent by the respondent-landlord could be held not to have been served at all simply because the postman, who had made the endorsement of refusal, had not been produced. The Andhra Pradesh High Court had relied upon Meghji Kanji Patel v.Kundanmal Chamanlal [AIR 1968 Bom 387 : 70 Bom LR 253] to hold that the notice was not served. There, a writ of summons, sought to be served by registered post, had been returned with the endorsement "refused". The Bombay High Court held that the presumption of service had been repelled by the defendant's statement on oath that he had not refused it as it was never brought to him. In this state of evidence, it was held that, unless the postman was produced, the statement of the defendant on oath must prevail. An ex parte decree, passed on the basis of such an alleged service was, therefore, set aside. On facts found, the view expressed could not be held to be incorrect."
44. In view of such facts, the said registered post receipts appended to the writ petition lack credibility and are not worthy of reliance.
45. The facts of the case founded above and the provisions of law extracted in the preceding paragraphs, considered in the light of the judicial authorities in point mentioned above facts the presumption of service of memo of appeal through registered post under Section 27 of the General Clauses Act, 1897 cannot be drawn in favour of the petitioner. The service was not complete. The stand of the petitioner regarding service of memo of appeal upon the appellate authority is disbelieved. The petitioner has failed to prove that the memo of appeal was served upon the appellate authority in 1968.
46. The writ petition is misconceived and is dismissed.
Order Date : 30.11.2018 Dhananjai