GOPAL SHANKER DUBE Vs. RAUNIYAR BIRADARI PANCHAYAT COMMITTEE

JUDGEMENT

(1.) -Heard learned counsel for the parties. The present revision is being disposed of at the stage of admission after exchange of counter and rejoinder affidavits.

(2.) THE only contention raised on behalf of the applicant is that the finding recorded by the trial court that the service through avoidance on the basis of such endorsement made by the post-man is proper service, is liable to be set aside as it could not be made deemed service as there was no refusal. THE trial court in the present case recorded a finding that originally notice was sent through registered post in which there is endorsement dated 15th September, 1971 of the post-man that the defendant is avoiding service hence registered notice is being sent back. THE defendant in the present case has stated that the post-man wanted to deliver the notice to him in Nagar Palika where he was serving but he was not there. However, it is denied that he was avoiding service.

(3.) BEFORE coming to the conclusion that on the given fact there is deemed service, the court has to fully satisfy that such a person who was actually present, deliberately refused such service. In the present case there is neither endorsement of the post-man for refusal of service nor an endorsement that the applicant-respondent was present and he had avoided deliberately to receive the said notice and in such case the finding recorded by the trial court that this would amount to service on respondent, cannot be sustained. Since in the present case no notice was served in the present proceeding, the finding recorded by the trial court cannot be sustained. Since in the present case notice under section 106 of the Transfer of Property Act was not served, the suit itself was incompetent and thus the impugned order cannot be sustained.