1. Heard Sri P.K. Goswami, Advocate, for the petitioner and Sri A. K. Goel, Advocate, for the respondents 2/1 to 2/3.
2. Petitioner has sought a writ of certiorari for quashing the judgment and order dated 23.9.1996 passed by 4th Addl. District Judge, Bareilly, allowing defendant-respondents' SCC Revision No. 11 of 1991 by partly setting aside Trial Court's judgment dated 23.2.1991, to the extent it has decreed the suit for eviction of defendant-respondent-tenants from premises in question.
3. Petitioner is landlord and the respondent no. 2, Rafiq Uddin (now deceased and substituted by his legal heirs) is the tenant.
4. The dispute relates to a residential accommodation i.e. House No. 11/5, Bankhana Road, Bareilly.
5. Petitioner purchased the disputed building vide sale deed dated 21/23.5.1994 from its erstwhile owner Mohd. Sayeed. Respondent no. 2 was already occupying the disputed building enjoying tenancy rights on monthly rent of Rs. 80/-. Alleging that respondent no. 2 has committed default in payment of rent, petitioner gave notice dated 8.6.1988 by registered post, terminating his tenancy, and, thereafter, filed Suit No. 98 of 1988 in the Court of Small Causes, Bareilly, seeking eviction of respondent no. 2 (the tenant).
6. The Trial Court decreed the suit for eviction of respondent no. 2 from building in question and also for recovery of arrears of rent/damages but in a revision preferred by respondent no. 2, the Revisional Court by impugned judgment/order dated 23.9.1996 has reversed Trial Court's decision to the extent it has decreed the suit for eviction of tenant from premises in question.
7. The only issue on which the Revisional Court has reversed findings of Trial Court is that the service of notice upon the tenant was not proved.
8. It was the case of plaintiff-petitioner that the notice dated 8.6.1988, sent to respondent no. 2-tenant by registered post but was returned by Postal Department with the endorsement of "refusal". Tenant denied the factum of receipt of notice and also that it was ever attempted to be served upon him. The Revisional Court relying on this Court's decision in Smt. Sona Devi Vs. District Judge, Basti 1983 ARC 799 and Sagar Vs. Addl. District Judge, Lucknow 1986 (1) ARC 475 held, if a registered letter is received back with the endorsement of "refusal" about service of notice, it is the bounden duty of plaintiff to prove by cogent evidence and if necessary by examining the Postman that the letter was offered to addressee but he declined to accept the same. Referring to General Clause Act, 1897 (hereinafter referred to as "Act, 1897") Revisional Court has taken the above view and has distinguished another decision of this Court in Lal Mohammad Vs. 2nd Addl. District Judge 1993 (1) ARC 55.
9. The only issue raised before this Court is whether in the matter of service of notice upon tenant, the view taken by Revisional Court is correct or not.
10. Before considering the judicial precedents relevant on the above question, three statutory provisions may need be taken note of.
11. First, is Section 27 of General Clauses Act, 1897 (hereinafter referred to as "Act, 1897" which reads as under:
"27. Meaning of service by post.-Where any 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."
12. Another relevant provision is Section 114, Illustrations (e) and (f), Indian Evidence Act, 1872 (hereinafter referred to as "Act, 1972") which 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-
...
(e) The judicial and official acts have been regularly performed;
(f) That the common course of business has been followed in particular cases;"
13. The third is Indian Post Office Act, 1898 (hereinafter referred to as "Act, 1898"). Section 3 and 14 thereof, relevant for the purpose of present case, are reproduced as under:
"3. Meanings of "in course of transmission by post" and "delivery".- For the purposes of this Act,-
a) a postal article shall be deemed to be in course of transmission by the post from the time of its being delivered to a post office to the time of its being delivered to the addressee or of its being returned to the sender or otherwise disposed of under Chapter VII;
b) the delivery of a postal article of any description to a postman or other person authorized to receive postal articles of that description for the post shall be deemed to be a delivery to a post office; and
c) the delivery of a postal article at the house or office of the addressee, or to the addressee or his servant or agent or other person considered to be authorized to receive the article according to the usual manner of delivering postal articles to the addressee, shall be deemed to be delivery to the addressee."
"14. Post Office marks prima facie evidence of certain facts denoted.-In every proceeding for the recovery of any postage or other sum alleged to be due under this Act in respect of a postal article,-
(a) the production of the postal article, having thereon the official mark of the Post Office denoting that the article has been refused, or that the addressee is dead or cannot be found, shall be prima facie evidence of the fact so denoted, and
(b) the person from whom the postal article purports to have come, shall, until the contrary is proved, be deemed to be the sender thereof."
14. Though in the three statutes referred to above, the oldest one is Act, 1872 but in fact the provisions relating to Post Office Act are older, going to 1866 when the first Post Office Act was enacted. In the then British Indian Territory governed by the British Government, postal services were established by appointing a Director, Post Office by the Governor General in Council in order to regulate this branch of public service and revenue, in the light of experiences gained by English postal legislation and development of Post Offices. Commenting upon the Post Office service in England, in Whitfield Vs. Lord Le Despencer (1778) 2 Cowp. 754, Lord Mansfield had said:
"The Post Master has no hire, enters into no contract, carries on no merchandise or commerce. But the post office is a branch of revenue, and a branch of police, created by Act of Parliament. As a branch of revenue, there are great receipts; but there is likewise a great surplus of benefit and advantage to the public, arising from the fund. As a branch of police it puts the whole correspondence of the kingdom (for the exceptions are very trifling) under government, and entrusts the management and direction of it to the crown, and officers appointed by the crown. There is no analogy therefore between the case of the Post Master and a common carrier."
15. Following the above decision in a recent case in Triefus & Co. Ltd. Vs. Post Office (1957) 2 Q.B. 352, it was held that Post Office is a branch of revenue and Post Master General does not enter into any contract with a person who entrusted to the Post Office a postal packet for transmission overseas.
16. Presently also the Post Office service in India, with which this Court is concerned, is not in the hands of any private individual or corporate body but it is a Department of Government of India and on certain matters, it is regulated by various Statutes including the Act, 1898.
17. I have referred to the above two decisions in Whitfield (supra) and Triefus & Co. Ltd. (supra) for the reason that the system of Post Office in India has been observed to be similar as it was in England and the Apex Court referring to the certain provisions of Act, 1898 said, in Union of India Vs. Mohd. Niazim AIR 1980 SC 431:
"These are only some of the provisions of the Act which seem to indicate that the post office is not a common carrier, it is not an agent of the sender of the postal article for reaching it to the addressee. It is really a branch of the public service providing postal services subject to the provisions of the Indian Post Office Act and the rules made thereunder. The law relating to the post office in England is not very much different from that in this country. "
18. The aforesaid decision was rendered considering the provisions in Act, 1898 which was enacted by repealing the previous Act of 1866 so as to consolidate and amend the law relating to Post Office in India.
19. The post office in India, thus, is an institution established by a statute. "Postage" required to avail of the postal services has been defined in section 2 (f) of Act, 1898 as "the duty chargeable for the transmission by post of postal articles". Under section 4 the exclusive privilege of conveying letters is reserved to the Central Government with certain exceptions which are not significant. Section 17 of the Act says that "postage stamps" shall be deemed to be issued by Government for the purpose of revenue. The provisions of the Act indicate that the post office is not a common carrier. It is not an agent of sender of the postal article for reaching it to the addressee. It is really a branch of the public service providing postal services subject to the provisions of Act, 1898 and the Rules made thereunder. It is in this context, Section 14 of Act, 1898 would also be a matter of relevance which says that the production of the postal article, having thereon the official mark of Post Office denoting that the article has been refused, or that the addressee is dead or cannot be found, shall be prima facie evidence of the fact so denoted. The Statute provides a prima facie evidence of the mark given by Postal Department on the postal article sent by post regarding its correctness, though the word "prima facie" shows that it is liable to be disproved by adducing evidence otherwise. Meaning thereby the mere denial by the party in respect to whom the endorsement has been made by postal agent otherwise, would not be sufficient unless he adduce evidence to discredit prima facie evidence in the shape of endorsement made by postal department on the article concerned. This provision read with Section 114 of Act, 1872 and Section 27 of Act, 1897 makes the situation quite clear. It appears that in various decisions, while considering the question of service of notice, most of the times, provisions of Act, 1898 and its implication have been omitted even when the service was sought to be effected by registered post.
20. Initially the issue of service of notice under Section 106 of Transfer of Property Act, 1882 (hereinafter referred to as "Act, 1882") was considered by Privy Council in Harihar Banerji and others Vs. Ramshashi Roy and others AIR 1918 PC 102. The Court said, if a letter, properly directed, containing a notice to quit, is proved to have been put into post office, it is presumed that letter reached its destination at the proper time according to the regular course of business of post office and was received by the person to whom it was addressed. The presumption would apply with still greater force to such letters which the sender has taken the precaution to register and is not rebutted but strengthened by the fact that a receipt for the letter is produced, signed on behalf of the addressee by some person other than the addressee himself. Here was a case where the service of notice was not denied by all and one of the person has admitted its service, therefore, a presumption was drawn. So the facts of this case makes it clear that the presumption was rightly drawn.
21. In Sukumar Guha Vs. Naresh Chandra Ghosh AIR 1968 Cal. 49, a Single Judge (Hon'ble Amresh Roj, J.) referring to Section 114, Illustration (f) of Act, 1872, Section 106 of Act, 1882 and Section 27 of Act, 1897 said that presumption under Section 27 of Act, 1897 can arise only when a notice is sent by registered post while there may arise a presumption under Section 114 of Act, 1872 when notice is sent by ordinary post or under certificate of posting. Both the presumptions are rebuttable. When the cover containing notice has been returned to the sender by postal authorities, then that fact is direct proof of the fact that the notice sent by post was not delivered to the party to whom it was addressed. Whether it was tendered and, if so, to whom tendered, remains a matter to be ascertained on evidence. If acceptable evidence is available that it was tendered to the party personally, then such facts may bring the service of notice within the second mode, namely, tendered or delivered personally to such party. If however, tender or delivery is not to the party personally but to a member of his family or a servant, then it may be effective tender or delivery only when the notice was addressed to the residence of the party. Such personal tender or vicarious tender may be effective even if it was through the agency of post office, and proof of that tender comes from testimony of any person present at the event, and not only by examining the postman. Here what I find is that when the Court talks of evidence, when we read it in the context of Section 114 of Act, 1872, a registered envelop received back from postal authority with the endorsement of postman of "refusal" will constitute a valid evidence to show that it was served upon the addressee but he refused to accept unless proved otherwise and for that purpose the examination of postman for constituting a prima facie evidence further would not be required in view of Section 14 of Act, 1898. This Section 14 of Act, 1898 has been omitted by the Court.
22. This Court in Wasu Ram Vs. R.L. Sethi 1963 AWR 472 said:
"The question whether a communication sent through the post was received by the address is one of fact, but in many cases it may be difficult and inconvenient if not impossible, to produce the postal official who delivered the letter or the money order. To obviate this difficulty the Evidence Act permits certain presumptions to be made under certain circumstances. S. 16 provides 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". The illustration (a) to this section explains that in a question "whether a particular letter was despaired, the facts that it was the ordinary course of business for all letter put in a certain place to be carried to the post, and that particular letter was put in that place, are relevant". S. 114 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 proper business, in their relation to the facts of the particular case. Illustration (e) to this section says that "the court may presume that judicial and official acts have been regularly performed"; and Illustration (f) says that the court may presume that "the common course of business has been followed in particular cases". The combined effect of these two sections is to raise a presumption that a communication sent by post was received in the ordinary course by the addressee, and if it was returned to the sender with the endorsement "refused", the postman must have tendered it but delivery could not be made because of the refusal of the addressee. These presumptions are based on human experience and common sense. Our experience tells us that millions of letters which are posted are delivered in due course to the address, though in exceptional cases letters do get lost. The onus of proof is on the person who asserts that the abnormal happened in his case and the communication sent by post did not follow its normal course to destination."
23. It further held:
"Whenever a communication is sent by post there is a presumption that it was duly delivered or tendered. If the communication is returned by the post office with the endorsement "refused" the presumption will be that it was tendered by the postal authorities in their ordinary course of business to the addressee who refused. The strength of the presumption will vary according to the fact of each case, being strong in the case of registered letters, and strongest in the case of money orders and insured articles the delivery of which cannot be made without observing certain precautions which are prescribed. Rules u/Chap. VII of the Post and Telegraph Guide provide that in case of refusal the money order shall be returned to the remitter with the endorsement "refused". If the addressee states on oath that he never received the communication, the Court must decide after considering all the surrounding circumstances, whether he should be believed. The question is always one of fact, though I would add as a matter of plain common sense that a denial which is not only bare but bare-faced and made by a person who stood to profit by his denial and, therefore, had all the motive in the word to deny, will not ordinarily weaken the presumption."
24. The above view was followed in Asa Ram Vs. Ravi Prakash AIR 1966 All. 519 and the relevant observation in para 3 thereof reads as under:
"3. Mr. Sinha then argued that a presumption of refusal could arise only if the endorsement 'refused' was proved by evidence, and this could only be done by producing the postman who made the endorsement. I do not agree. If the landlord deposes that he sent an envelop containing the notice and that the same envelop was received by him with the endorsement 'refused' which was not there before and he produces the envelop with the endorsement, this is a sufficient evidence to prove the endorsement. In this case the respondent appeared as a witness and proved the sending and the return of the envelope. On this evidence the Court could rely on the presumption authorized under S. 114 of the Evidence Act."
25. Thereafter, the issue came to be considered by a Full Bench in Ganga Ram Vs. Phulwati AIR 1970 All. 446. One of the three questions referred for consideration before Full Bench was "whether it is 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? Full Bench considered this question referring to provisions of all three Statutes, namely, Act, 1872; Act, 1897 and Act, 1898. Besides others, it also referred to Rule 64 (1) of Indian Post Office Rules which reads as under:
"64 (1). If the sender of a registered article pays at the time of posting the article a fee of one anna in addition to the postage and registration fee, there shall be sent to him on the delivery of the article a form of acknowledgement which shall be signed by the addressee or if the addressee refuses to sign shall be accompanied by a statement to the effect that the addressee has refused to sign."
26. Having referred to various provisions of Act, 1898 and Rules framed thereunder, the Court said that when the postmen or the clerks at the station of destination are required to do and what endorsements they are required to make, all such acts are clearly provided in the Statute. All such acts are done by them and all such endorsements are made by them in discharge of their official duties. The Court, thus, proceeded further and held that a notice sent by registered post will be entitled to draw a presumption regarding due service of that notice vide Illustration (e) and (f) of Section 114 of Act, 1872. In this regard, the Court also referred to Section 16 of Act, 1872 and said that 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.
27. Having said so, the Court further proceeded to hold that taking into consideration the manner in which the post office deals with registered letters, the endorsement on the notice "Refused" strengthens the presumption that an attempt was made to deliver the notice to the addressee. The Court in para 22 of the judgment clearly said:
"... with the endorsement "Refused" the presumption of service could be raised under Section 27 of the General Clauses Act, and it would be a presumption of law, and not of fact."
28. It also held that a presumption of law is rebuttable unless it is made unrebuttable by some provision of law. The Full Bench disagreed with the view taken by the Bombay High Court in Vaman Vithal Vs. Khanderao Ram Rao. AIR 1935 Bom 247, Nagpur High Court in Jankiram Narhari Vs. Damodhar Ramchandra, AIR 1956 Nag. 266 and the Madhya Bharat High Court in Tekchand Devidas Vs. Gulab Chand Chandan Mal, AIR 1957 Madh B. 151 where the said three Courts have taken a view that there can be no presumption that the endorsement of refusal was made by the postman unless the postman is examined and such endorsement was inadmissible in evidence. The Full Bench thus answered the question accordingly holding that postman is not necessarily to be examined by plaintiff.
29. The above Full Bench judgment in Ganga Ram (supra) has been referred to and approved by Apex Court recently in Samittri Devi and another Vs. Sampuran Singh and another (2011 ) 3 SCC 556 (para 26).
30. This issue also came up before Apex Court in Puwada Venkateswara Rao Vs. Chidamana Venkata Ramana AIR 1976 SC 869 and in para 10 of the judgment, it held:
"It is not always necessary, in such cases, to produce the postman who tried to effect service. The denial of service by a party may be found to be incorrect from its own admissions or conduct."
31. In Har Charan Singh Vs. Shiv Rani AIR 1981 SC 1284, a three-Judge Bench (by majority held) with respect to notice when registered letter is returned with endorsement of "refusal", said:
"Section 27 of the General Clauses Act, 1897 deals with the topic 'Meaning of service by post' and says that where any Central Act or Regulation authorities or requires any document to be served by post, then unless a different intention appears, the service shall be deemed to be effected by properly addressing, pre-paying and posting it 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. The section thus raises a presumption of due service or proper service if the document sought to be served is sent by properly addressing, prepaying and posting by registered post to the addressee and such presumption is raised irrespective of whether any acknowledgement due is received from the addressee or not. It is obvious that when the section raises the presumption that the service shall be deemed to have been effected it means the addressee to whom the communication is sent must be taken to have known the contents of the document sought to be served upon him without anything more. Similar presumption is raised under Illustration (f) to s. 114 of the Indian Evidence Act whereunder it is stated that the Court may presume that the common course of business has been followed in a particular case, that is to say, when a letter is sent by post by pre-paying and properly addressing it the same has been received by the addressee. Undoubtedly, the presumptions both under s. 27 of the General Clauses Act as well as under s. 114 of the Evidence Act are rebuttable but in the absence of proof to the contrary the presumption of proper service or effective service on the addressee would arise."
32. Again this issue came to be considered by a two-Judge, Bench of Apex Court in Anil Kumar Vs. Nanak Chandra Verma AIR 1990 SC 1215 and while overruling this Court's decision in Shiv Dutt Singh Vs. Ram Das AIR 1980 All. 280 it was held in para 2 as under:
"2. The question considered in both the decisions was to the statement on oath by the, tenant denying the tender and refusal to accept delivery. It was held that the bare statement of the tenant was sufficient to rebut the presumption of service. In our opinion there could be no hard and fast rule on that aspect. Unchallenged testimony of a tenant in certain cases may be sufficient to rebut the presumption but if the testimony of the tenant itself is inherently unreliable, the position may be different. It is always a question of fact in each case whether there was sufficient evidence from the tenant to discharge the initial burden."
33. In Jagdish Singh Vs. Natthu Singh AIR 1992 SC 1604, the Court confirmed a decision of this Court in respect to presumption about service of notice received with the endorsement of "refusal" and held that presumption contemplated by Section 27 of Act, 1897 must be drawn to deem service upon the addressee. In para 8 of the judgement, the Court said:
"In our opinion, the High Court was right in its view. The notices must be presumed to have been served as contemplated by S. 27 of the General Clauses Act."
34. I find a straight answer as to who should disprove the factum of offer of registered letter when returned by postal authority with the endorsement of "refusal" in the Apex Court decision in Gujarat Electricity Board Vs. Atmaram Sungomal Poshani AIR 1989 SC 1433 where it has been observed:
"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."
(emphasis added)
35. Following the Apex Court decision in Gujarat Electricity Board (supra) this Court in Jhabul Ram Vs. District Judge, Ballia 1994 (23) ALR 464 has also said in para 9 as under:
"9. Bald denial of the petitioner could not absolve him from the burden of rebutting the presumption of service of notice arising from the endorsement by the postal authorities on the registered cover containing the notice. The court below did not commit any error, muchless an error apparent on the face of record, in holding that the notice in question was duly served on the petitioner."
36. I find another Apex Court's decision straight on this issue i.e. Basant Singh Vs. Roman Catholic Mission 2003 (1) AIC 1 (SC). In para 8 and 10 of the judgment, the Court observed:
"The presumptions are rebuttable. It is always open to the defendants to rebut the presumption by leading convincing and cogent evidence."
"As already noticed, Hari Singh appeared and save and except the bald statement that registered letter was not tendered to him, no evidence whatsoever was led to rebut the presumption. He could have examined the postman, who would have been the material witness and whose evidence would have bearing for proper adjudication. He has failed to discharge the onus cast upon him by the Statute."
37. This Court has followed the above decision in Noor Mohammad and another Vs. XIV Additional District and Sessions Judge, Kanpur Nagar 2006 (63) ALR 244. Therein the Revisional Court reversed the Trial Court's order on the ground that the tenant has tendered rent to landlord through money order which was received with the endorsement "refusal" by the postman but when landlord denied the tender of money order, tenant did not examine the postman and hence failed to discharge burden lying upon him. In other words, the Revisional Court said that it is the sender who should examine the postman and not the sendee/addressee for whom the postal authorities have endorsed that it has refused to accept the article. This view of the Revisional Court was reversed by this Court by observing:
"In respect of endorsement of refusal by the postman, there is no necessity to examine the postman to prove that. If there is any such duty then it is for the person denying tender by the postman."
38. This Court also in Brij Nandan Gupta Vs. III Addl. District Judge, Rampur and another (Writ-A No. 24853 of 1989) decided on 30.7.2012 in para 21 of judgment said:
"Similarly, if a notice has been sent by landlord by registered post and it is received back with an endorsement made by an official of Post Office namely Postman that it was refused by the addresee, presumption of service upon addressee shall be drawn unless the tenant prove that the letter was never offered to him by the Postman and endorsement made thereon is not correct. The tenant's bare denial would not be sufficient in such a case and he will have to prove his case by adducing relevant evidence. Such denial can be by making statement on oath and in such case onus would shift on the landlord to prove that refusal was by the tenant which he can show by summoning the postman and adducing his oral evidence. However, this is one aspect of the matter. Sometimes from the conduct of tenant or other circumstances, his denial even if on oath, can justifiably be disproved by the Court without having Postman examined."
39. So far as decisions in Smt. Sona Devi (supra) and Sagar (supra) are concerned, Smt. Sona Devi (supra) is a decision of a Single Judge of this Court observing, when the endorsement of "refusal" is disputed by defendant-tenant deposing statement in the witness-box and stating on oath that no notice was served, the burden would shift on the plaintiff to prove that the Postman have tendered the notice to addressee. The Hon'ble Single Judge has referred to only Section 27 of Act, 1897 with respect to presumption but other provisions including Section 14 of Act, 1898 and other authorities of this Court have not at all been referred to. The decision, therefore, has been rendered without referring to relevant provisions which robbed off its binding authority on account of application of doctrine of the ignoratia/per incuriam.
40. In Sagar (supra), the testimony of defendant denying the offer of registered letter and refusal was found believable and the Trial Court was satisfied with the rebuttal of the defendant but Revisional Court reversed the same which was not found to be correct by this Court. The Trial Court being the Court of facts when record a finding in a particular manner, which is not found to be perverse or contrary to record, the Revisional Court has no reason to interfere in the arena of evidence and believing or disbelieving the evidence in a particular manner. But in the present case, the Trial Court did not found sole statement of defendant in denial to be the sufficient rebuttal and, therefore, the Revisional Court in reversing the aforesaid finding has erred in law and the view taken by it cannot be sustained. The decision in Sagar (supra) has been rendered in view of peculiar facts therein and, therefore, would lend no credence to the respondents in the present case.
41. The scope of interference by Revisional Court has been considered time and again and it has been held that Revisional Court should interfere with the findings of fact of Trial Court only when such finding is based on no evidence or there is an error of law in appreciation of evidence. (See: Laxmi Kishore and another Vs. Har Prasad Shukla 1981 ARC 545, Param Sukh and another Vs. III Additional District Judge, Jalaun at Orai and others 1986 (2) ARC 305, Om Prakash and others Vs. 2nd Additional District Judge, Saharanpur and others 2000 (2) ARC 739; and Harish Lal Sah Vs. District Judge, Almora and another 2005 (3) ARC 509.
42. In the present case, the Revisional Court has taken a different view so as to reverse the finding of the Trial Court in respect to service of notice only on the ground that plaintiff-landlord ought to have examined postman and unless he is so examined, his endorsement of "refusal" cannot be treated to be an evidence to draw a presumption in favour of service upon the tenant when tenant simply deny service upon him. He has found that the address given on the registered letter was correct, yet only on the ground that postman having not been examined by the landlord, the Revisional Court, in holding that endorsement of "refusal" cannot be treated to be an evidence to draw presumption of service, has acted wholly illegally and the aforesaid view taken by Revisional Court, in view of exposition of law discussed hereinabove, cannot sustain.
43. When the endorsement made by a Postman by virtue of Section 14 of Act, 1898 is to be treated as prima facie evidence of correctness of endorsement, this is a statutory presumption of evidence and can be rebutted by the addressee by adducing adequate evidence failing which it is the addressee who will fail and not the sender. It is thus for the addressee to examine the postman to demonstrate that the endorsement made by him (postman) is not correct and mere fact that sender could not identify the Postman would make no different since it is wholly irrelevant.
44. In the result writ petition is allowed. Revisional order dated 23.9.1996 (Annexure 5 to writ petition) is hereby set aside. Judgement of the Trial Court dated 23.2.1991 in S.C.C. Suit No. 98 of 1988 is restored and confirmed.
Dt. 14.9.2012 PS