📘 CIVIL PROCEDURE CODE : ORDER V

CASE STUDY: GILL & CO. v. BIMLA KUMARI JOLLY

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CIVIL PROCEDURE CODE EXPLAINED
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📄 Gill & Co. v. Bimla Kumari Jolly [1986 Del]

• It was stated that the trial Court had arrived at the finding that appellant 1 had Sub-let, assigned or otherwise parted with possession of the premises to appellant 2 primarily for the reason that the appellants did not produce the relevant records and documents despite their having been served with a notice dated 7th March 1978 under Order XII Rule 8 read with Section 66 of the Evidence Act (copy marked XI)
• but such notice was never served on appellant No. 1 and as such the trial Court was in error in assuming that the records and documents mentioned in the notice marked ‘XI’ had been with-held deliberately, and, therefore, the presumption that if produced, the same would not have supported the case of the appellants, would be well warranted.
• As regards the service of notice under Order XII Rule 8 of the Code read with Section 66 of the Evidence Act, there is considerable force in the submission of the learned counsel for the appellants that both the courts below slipped into a grave error in assuming that the said notice was duly served on appellant No. 1.
• Postal receipt marked ‘X2’ and the acknowledgement receipt marked ‘X3’ would no doubt show that a letter addressed to appellant No. 1 at their correct address of Bombay was sent by registered A.D. post and the same was duly delivered to someone on behalf of the addressee.
• This certainly raises a presumption in favour of official acts having been duly performed not only under Section 114(f) of the Evidence Act but also under Section 27 of the General Clauses Act.
• Indeed, raising of such a presumption under Section 27 of the General Clauses Act would appear to be mandatory in view of the words “the service shall be deemed to be effected by properly addressing, prepaying 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” appearing in the said Section.
• These receipts were put to Shri Ahuja, appellant No. 2 when he was in the witness box and he denied receipt of any such notice.
• However, he could not say whose signatures appear on the acknowledgement receipt “X3”. No doubt, presumption arising under both Section 114, illustration (f) of the Evidence Act and Section 27 of the General Clauses Act is rebuttable one…
• But it is well settled that mere denial of service without anything more is not enough to discharge the onus which lies on the addressee to disprove the receipt of letter and he must prove some circumstances which would show that the notice never reached the addressee.
• Mere denial by the tenant does not rebut the presumption raised under Section 114, illustration (f) of the Indian Evidence Act. The tenant must produce some other evidence to show that the usual course of the post was interrupted by disturbances.
• So, no exception can be taken to the presumption raised by the learned Rent Controller and for that matter sent the Tribunal with regard to the delivery of a letter sent to appellant No. 1 by registered A.D. post vide X2 & X3.
• However, the critical question which would still arise is whether it could be further inferred from this mere fact that notice, of which copy is marked X1, was sent in the said envelope to appellant No 1.
• There is not an iota of evidence with regard to the same as the said notice was produced at the stage of cross-examination of Ahuja and it was then placed on record.
• Neither the respondent nor any other witness testified to the fact that the registered envelope contained the original document, of which marked X 1 is a copy.
• Evidently it was incumbent on the appellants to adduce evidence to the effect that the registered letter contained the notice of which X 1 is the copy.
• Hence, both the courts below slipped into a grave error in presuming that the notice marked XI was contained in the registered letter which was delivered to appellant No. I vide acknowledgement receipt marked X3.
• If that be so, no adverse inference can be drawn against the appellants that they withheld the documents which they were called upon to produce vide notice marked Xl probably because the said documents, if produced, would not have supported the case of the appellants.

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