LAWS(CAL)-1957-11-9

SUSHIL KUMAR CHAKRAVARTY Vs. GANESH CHANDRA MITRA

Decided On November 26, 1957
SUSHIL KUMAR CHAKRAVARTY Appellant
V/S
GANESH CHANDRA MITRA Respondents

JUDGEMENT

(1.) This appeal under Clause 15 of the Letters Patent against the decision of Renupada Mukherjee J., dismissing a second" appeal to this Court against a decree for ejectment raises the question whether when the letter containing a notice to quit has been proved to have been properly addressed, prepaid and posted by registered post and the original cover containing the notice which is Put in evidence is found to have the word, "refused", written on it, the Court is entitled to hold, without the postal peon being examined to prove the fact of refusal by the addressee, that Proper service has been effected. All the Courts below have held that proper service was effected. It appears that in the trial Court and in the court of first appeal certain other endorsements appearing on the covers were taken into consideration. Renupada Mukherjee J. held that those other endorsements should not have been admitted in evidence or looked into by the Courts below without the authors thereof being examined in Court. He held, however, that the Court was entitled to take into consideration the endorsement "refused" as appearing on the covers without the postal peon being examined and that thereupon it was entitled to presume without the peon being examined that proper service has been effected.

(2.) The argument, that unless the postal peon is examined such an endorsement "refused" is of no use and cannot justify the presumption that it was actually tendered and refused is based on the decision of this Court in the case of Gobinda Chandra v. Dwarka Nath, 19 Cal WN 489: (AIR 1915 Cal 313) (A). Their Lordships pointed out that the endorsement was at best a record of a statement by the peon and could not be treated as evidence of the events recited therein unless the peon was examined except where there was evidence of circumstances which would allow the statement to be put in evidence under Section 32 (2) of the Indian Evidence Act. Their Lordships observed further:

(3.) Before entering on a discussion of the question whether in the absence of the postal peon's evidence, a Court can hold that service has been refused, it is worth pointing out that in this particular case, the notice had been sent by registered post. The question at once arises as to what presumption can and should be made under Section 27 of the Indian General Clauses Act. That section is in these words :