Whether court should decide any controversy on basis of under certificate of posting?

 As regards sending of intimation under certificate of posting is concerned, it is to be noted that the date on which the said articles were dispatched under said certificate of posting is not very clear from the document at Exhibit-101/1. The Courts have been slow in recognising as a proper mode of service any article sent under certificate of posting. In Gadakh Yashwantrao Kankarrao Vs. E.V. alias Balasaheb Vikhe Patil and others - MANU/SC/0599/1994 : AIR 1994 SC 678 it was observed by the Hon'ble Supreme Court that a certificate of posting is very easy to be obtained and the same is not reliable mode of delivery. Similarly, in Shiv Kumar and others Vs. State of Haryana and others - MANU/SC/0731/1994 : (1994) 4 SCC 445 the Hon'ble Supreme Court observed that it did not feel safe to decide the controversy in question on the basis of certificates of posting. It was further observed that it was not difficult to get such postal seals at any point of time. The Court refused to rely upon the certificate of posting therein as a mode of proper service. Reference can also be made to the decision in MANU/SC/0253/2006 : (2006) 1 SCC 407 -(State of Maharashtra Vs. Rashid B. Mulani), wherein it has been observed in clear terms that a Certificate of posting obtained by a sender is not comparable to a receipt for sending a communication by registered post. No record is maintained by the post office either about receipt of the letter or of the certificate issued and in absence of such record, a certificate of posting would be of very little assistance. It was also observed that the ease with which such certificates can be prepared by affixing an antedated seal is a matter of concern.

IN THE HIGH COURT OF BOMBAY

First Appeal Nos. 1945 and 1946 of 2009

Decided On: 13.12.2018

ICICI Lombard General Insurance Co. Ltd. Vs.  Sarjerao Pataloji Kshirsagar and Ors.

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Whether court should proceed exparte even if there is no proper service of summons?

 In the present case, the notice was sent initially by RPAD and the envelope has returned with endorsement D/L 23-08-16 and 24-08-16. An intimation was given on 25-08-2016 and as the addressee did not visit the post office for collecting the registered post envelope, it was returned as unserved. The envelope nowhere shows that it was refused by the noticee i.e Appellant herein. Thereafter, summons was reissued through bailiff. That time the opponent was not there. The papers disclose that the notice was issued for the first time on 13-06-2016 and the first notice issued returned unserved as the bailiff did not get sufficient time for service.

8. This is a custody matter of a child before the Additional District Judge-5, Aurangabad, who was expected to be sensitive to the rights of the parties and was bound to verify the record before passing ex-parte order. In the first place, there was no attempt to serve the notice dated 14-08-2016 for want of time, still the Advocate for appellant filed false application dated 20-08-2016 (Exhibit-7) that the opponent No. 1 was avoiding to accept the notice. There was no material to accept the statement, still the Court proceeded with the application. Pertinently, the claim was filed at Jalgaon and the present appellant was residing with her father at Bhadgaon, District Jalgaon. As per Order V of the CPC, there is no provision of effecting service by mere RPAD. Still, the application was casually allowed. When there was no service by RPAD, still the ex-parte order was passed. The RPAD envelope does not bear the endorsement as not claimed, still the order shows that there was an endorsement as not claimed. Even if, it is assumed to be true, still such endorsement does not mean that it is endorsement of refusal to accept the service. Even if, there would have been refusal to accept the service as per Order V, Rule 17 of the CPC, service by pasting/affixing the copy of notice + plaint on the outer door or some other conspicuous part of the house was essential alongwith the report to that effect of the bailiff. No such efforts were made. Only one attempt was made through bailiff when the opponent was not found in house. This type of casual approach by a District Judge in the sensitive matter of child custody for proceeding exparte without application of mind was not expected. As there was no service of notice, the impugned ex-parte Order and Judgment is not tenable and deserves to be set-aside.

In the High Court of Bombay

(Before A.M Dhavale, J.)

 Jayshri Gajendra Mahajan,v. Gajendra Pandit Mahajan, 

First Appeal No. 2815 of 2017

With

CA/9798/2017 in FA/2815/2017

Decided on August 7, 2018

Citation: 2018 SCC OnLine Bom 2233

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Whether service of notice can be presumed even if postal remark is left?

   Jammu  and Kashmir Houses and Shops Rent  Control Act,
1966: Section 11--'Serves a notice in writing through post'-
-Inter-pretation  of--Posting a pre-paid  registered  letter
containing tenant's  correct address--Sufficiency of.



HEADNOTE:
    In November 1976, the respondent issued a notice to  the
appellant  under section 11 of the Jammu & Kashmir Houses  &
Shops  Rent  Control Act, 1966 calling upon it to  pay  the
arrears of rent. The notice also terminated the tenancy  and
called upon the appellant to vacate the  demised  premises.
The notice sent by registered post was received back by  the
respondent  with  the  endorsement  "left  without  address,
returned to sender". Thereupon the respondent caused a copy
of  the   notice  to be fixed to one of  the  doors  of  the
premises in question. No payment of rent was however made by
the appellant subsequently. The respondent, therefore, filed
a  suit in June 1977 seeking ejectment of  the appellant  on
the  ground  of default in the payment of  rent.  The  Trial
Court  ordered eviction. and the appellant's appeals  before
the District .Judge and the High Court against the order  of
eviction failed.
    Before  this Court the appellant  contends that (1)  the
safeguards in ss. 11 and  of the Act are intended for the
benefit  and protection of the tenant and therefore,   where
the  Act provides for the service of the  notice,  by  post.
this requirement has to be strictly complied with; (2) such
postal service can neither be presumed nor considered to  be
good service where The latter is returned to the sender  due
to non-availability of the addressee; (3) in the absence  of
any enabling provision, service by  some other mode, such as
affixture,  cannot be treated as sufficient compliance with
the statute; and (4) where a power is given to do a  certain
thing  in a certain way, the thing must be done in that  way
or  not  at  all  and  other  methods  of  performance  are
necessarily forbidden.
    Dismissing the appeal, it was,
    HELD: (1) The proviso to clause (i) of section 11(1) and
the proviso to section 12(3) are intended for the protection
        PG NO 983
        PG NO 984
of  the tenant. A Nevertheless, it will be easy to see that
too strict and literal a compliance of their language  would
be impractical and unworkable. [988H; 989Al
    (2)  The proviso insists that before any amount of rent
can  be  said to be in arrears, a notice has  to  be  served
through post. All that a landlord can do to comply with this
provision   is to  post  a  prepaid  registered   letter
(acknowledgment  due or otherwise) containing  the  tenant's
correct  address.  Once  he  does this and  the  letter  is
delivered to the post office, he has no control over it.  It
is  then  presumed to have been delivered to  the  addressee
under s. 27 of the General Clauses Act. [989A-B]
    (3)  To  interpret the provision as requiring  that  the
letter must  have been actually delivered to the  addressee,
would be virtually rendering it a dead letter. [989F]
    (4) If a registered letter addressed to a person at  his
residential address does not get served in the normal course
and  is  returned,  it can   only  be attributed  to  the
addressee's  own conduct. If he is compelled to be away  for
some  time,  all  that he has to do is to  leave  necessary
instructions with the postal authorities. [989H; 990A]
    (5)  The  more  reasonable,  effective,  equitable  and
practical interpretation would be to read the words "served"
as  "sent by post". correctly and properly addressed to  the
tenant,  and the word "receipt" as the tender of the  letter
by  the postal peon at the address mentioned in the  letter.
No  other  interpretation will fit the situation  as  it  is
simply not  possible  for  a  landlord  to  ensure  that  a
registered  letter  sent  by  him gets  served  on,  or  is
received by the tenant. [990B-C]
    (6)  The statute prescribes only one method  of  service
for  the notice and none other. To require service  by some
other  method  to  be effected over  and  above  the  postal
service would be to travel outside the statute. [99OF]
    (7) Where the statute does not specify any additional or
alternative  mode  of service, there can be no warrant  for
importing into the statute a method of service on the  lines
of  the provisions of C.P.C. This Court would therefore  not
like  to hold that a substituted'' service. such as the  one
effected by the landlord in the present case, is a necessary
or permissible requirement of the statute. [990G]
    (8)  The provision in regard to the notice contemplated
by  the  statute is unsatisfactory and it is hoped that  the
        PG NO 985
legislature would soon set it right. On the provision as  it
stands,  a landlord must be held to have complied  with  the
statutory   requirement  by  sending  a   notice   correctly 

addressed to the tenant by registered post.

Supreme Court of India

Madan & Co vs Wazir Jaivir Chand on 28 November, 1988

Equivalent citations: 1989 AIR 630, 1988 SCR Supl. (3) 983

BENCH:
RANGNATHAN, S.
MUKHARJI, SABYASACHI (J)

Citation: AIR 1989 SC 630

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Whether adverse inference is to be drawn against a party if he withholds material document?

In the instant case, as noted above, the rent in dispute relates to the period of six months -- from January 1, 1978 to June 30, 1976. Notice of demand in respect of the rent in arrears was sent by the appellants (Exh. 29 which was received by the respondents on July 14, 1978. The period of one month contemplated in the provision within which the original tenant was entitled to pay the rent expired on August 14, 1978. The defence of the appellants is that on July 11, 1978, a money order on July 17, 1978 and, therefore, there has been substantial compliance of clause (a) of sub-section (3) of Section 12. Admittedly, the respondents did not file receipt of sending the money order which is direct evidence of the fact of sending the money order to the appellants. In his deposition in the trial court the original tenant admitted that the receipt of sending the money order issued by the postal authorities was with him; however, he did not choose to file the same. The trial court drew adverse inference against him, in our view rightly. The money order coupon containing the endorsements of the postal authorities "refused" which was returned by the postal authorities (Exh. 67) was examined by the trial court and it was found that the postal stamp was dated August 27, 1978, if that be so there was no material to show that the amount in demand was sent within one month. These findings were confirmed by the appellate court. The High Court misread Exh. 67 as containing the dated August 17, 1978 and from that inferred that the money order might have been sent on August 12/13, 1978 and upset the concurrent findings of courts below. In view of the divergence of opinion of this aspect we ourselves looked into the record and with the help of magnifying glass perused Exh. 67. The same was also placed before the learned counsel for the parties. We are unable to agree with the High Court that the postal stamp is of August 17, 1978. The adverse inference drawn by the trial court and the appellate court remains unrebutted. There was no other material to justify interference by the High Court. Therefore, the finding recorded by the High Court cannot be sustained.

IN THE SUPREME COURT OF INDIA

Appeal (civil) 4756-4757 of 1997

Decided On: 27.09.2001

Sugarbai M. Siddiq and ors. vs.  Ramesh S. Hankare (D) by Lrs.

Hon'ble Judges/Coram:

S.S.M. Quadri and S.N. Phukan, JJ.

Citation:2001(8) SCC 477

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Whether proper service of notice can be presumed if postal remark is "House locked" and "shop closed"?

In view of the office report, it would be clear that the respondents obviously managed to have the notice returned with postal remarks "not available in the house", "House locked" and "shop closed" respectively. In that view, it must be deemed that the notices have been served on the respondents.

Supreme Court of India

The State Of Madhya Pradesh vs Hiralal & Ors on 15 January, 1996

Equivalent citations: JT 1996 (1), 669 1996 SCALE (1)SP35

BENCH:
RAMASWAMY, K.
G.B. PATTANAIK (J)

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Whether due service of notice can be presumed when it is returned endorsement "refused" or "not available in the house"?

This Court in catena of cases has held that when a notice is sent by registered post and is returned with postal endorsement "refused" or "not available in the house" or "house locked" or "shop closed" or "addressee not in station", due service has to be presumed.

SUPREME COURT OF INDIA

N. Paraeswaran Unni Vs. G. Kannan and Another

[Criminal Appeal No 455 of 2006]

N.V. Ramana, j.

Dated:1st March, 2017.

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Whether addressee not collecting envelope on intimation amounts refusal to accept notice?

The admitted and proved facts in the petition before me clearly show that within one month, the tenant on March 11, 1975 remitted the entire arrears of Rs. 2,421.14 by a Demand Draft. A look at the envelope shows the necessary postal endorsements that the landlord not having been found at the delivery time. The facts clearly show that the landlord, plaintiff No. 1 has admitted that the envelope bears his correct address. It is common that the postal authorities in the matter of address not being found at delivery time consecutively send intimation and then keep the registered envelope for a period of a week to enable the addressee to collect the envelope personally by attending the post office. The envelope (Exh. 35) in the instant petition bears all the necessary endorsements and the learned counsel appearing for the petitioners has not raised any dispute in regard thereto. In law, failure on the part of the addressee in collecting the envelope on intimation inspite of the fact that the postal authorities retained the envelope for a period of one week, as has been placed on evidence in this matter, cannot but would amount to a refusal on the part of the landlord. 
IN THE HIGH COURT OF BOMBAY

Writ Petition No. 1142 of 1981

Decided On: 01.04.1991

Ramchandra Govind Palekar and Ors.Vs.  Ramesh Nana Jangam and Ors.

Hon'ble Judges/Coram:
V.V. Kamat, J.
Citation: 1992 Bom. C. R. 310.

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Whether there is proper service of notice in cheque dishonour case when there is postal endorsement of refused?

This Court has already held that when a notice is sent by registered post and is returned with a postal endorsement refused or not available in the house or house locked or shop closed or addressee not in station , due service has to be presumed. [Vide Jagdish Singh Vs. Natthu Singh ; State of M.P. Vs. Hiralal & Ors. and V.Raja Kumari Vs. P.Subbarama Naidu & Anr. ] It is, therefore, manifest that in view of the presumption available under Section 27 of the Act, it is not necessary to aver in the complaint under Section 138 of the Act that service of notice was evaded by the accused or that the accused had a role to play in the return of the notice unserved.

Supreme Court of India

C.C. Alavi Haji vs Palapetty Muhammed & Anr on 18 May, 2007

Bench: Cji K.G. Balakrishnan, R.V. Raveendran, D.K. Jain

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