Question

Write and practice notice bioskctech of postman v

Answer 1

Learned counsel appearing for the respondent has, however, urged that in view of the pronouncement of the Full Bench of this court reported in Gangaram v. Smt. Phulwati (AIR 1970 All 446), it should be held that the plaintiff has been able to prove the service of the notice on the defendant. It has been argued that the registered letter was sent to the correct address of the defendant and in case the defendant wanted to challenge the service of notice on him, he should have cross-examined the plaintiff on the aforesaid question and also should have produced the postman to prove that there was a collusion between the plaintiff and the postman for effecting service on the defendant.

(emphasis provided) The correct legal position seems to be, as laid down by the Supreme Court and by the Full Bench of this Court, that it is not necessary for the plaintiff in order to prove the endorsement of refusal by producing the postman. Even though the postman may not have been produced by the plaintiff, the presumption of service of notice and its refusal would be available to the plaintiff under the provisions of Section 114 of the Evidence Act and also under Section 27 of the General Clauses Act. The presumption which would thus be available to the plaintiff, would be a rebuttable presumption. It will, therefore, depend on the evidence which is led by the parties in each case to find out as to whether in a particular case on the evidence which is before the Court, the presumption which has been so raised against the defendant has been rebutted by him.

11. The crucial question which thus arises in the present case now is as to whether in the state of evidence which exists on the record the defendant can be said to have rebutted the presumption which had been raised against him. The defendant in the present case stated on oath that the postman has not served the notice on him. He has not at all been cross-examined on the aforesaid point by the plaintiff. The plaintiff's only witness has made a statement that he had not accompanied the postman. The only thing which the plaintiff has been able to point out is that the notice has been sent to the correct address of the defendant. The contention of the plaintiffs counsel that the defendant should have cross-examined the plaintiff on the aforesaid question and should have also produced the postman, in my opinion, is without any force. The plaintiff himself had not accompanied the postman for effecting the service and thus there was no question of cross-examinine the plaintiff on that question. The postman had made an endorsement of refusal on the notice and the defendant would not call a witness who was going to depose against him. It was for the plaintiff, in case he wanted to produce better evidence to produce the postman in evidence in order to belie the version of the defendant that he was not served. On similar facts this Court in the case of Shiv Dutt Singh v. Ram Dass, (1980 All LR 457) : (AIR 1980 All 280), held:--

Similar view has been taken by this Court in Hub Lal v. Bhudeo Prasad Sharma (1980 All LJ 437); Amar Nath v. Smt. Champa Devi (1978 All LR 90), Ram Nekshatra v. Girdhar Das Kashya (1979 (UP) RCC 5) and also by the Delhi High Court in Jagat Ram Khullar v. Battu Mal (AIR 1976 Delhi 111). In my opinion in the present case the defendant rebutted the presumption of service of notice against him by examining himself and deposing that the postman never served a notice on him. His testimony was not challenged by the plain tiff in the cross-examination. The plaintiff did not produce the postman or any other evidence to show that the defendant was not deposing the truth and that notice had, in fact, been served on him. The plaintiff having failed to prove that he had served notice of termination of tenancy under Section 106 of the T.P. Act on the defendant, the plaintiff's suit was liable to be dismissed on this ground alone.

Answer 2

Answer:

urst8dt8dst8dtcocoddifz6rsistididif9td9yrr69