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Second Appeal from Order No. 240 of 1965, decided on 15th May 1968.

S. 30(1)(b) read with General Clauses Act (X of 1897), S. 27 and Evidence Act (I of 1872), Ss. 16 do 114, Illus. (f) ‑ Ejectment notice Personal service of notice not essential‑Envelope properly addressed and directed and pre paid containing notice posted by registered post (acknowledgment duet'‑Presumed to have reached its destination at proper time according to regular course of business of post office‑Notice under S. 30 sent by registered post acknowledgment due duly addressed to tenant having been delivered by postman to boy emerging out of house upon signature of boy‑Tenant not denying connection with boy receiving letter Held, service properly effected on addressee.

Harihar Banerji and others v. Ramshahi Roy and others A I R 1918 PC102 rel.

Tanham v. Nicholson (1872) 5 H L 561 ref.

Bashir Zafar for Appellant.

Sh. Riaz Ahmad for Respondent.

Date of hearing: 15th May 1968.

The short point in this second appeal against the order dated the 2nd of March 1965, of the Additional District Judge exercising powers of Appellate Authority under section 15 of the West Pakistan Urban Rent Restriction Ordinance (VI of 1959), passed in reversal of the order dated the 31st of July 1964 of the Rent Controller in an application for ejectment brought against the appellant by the respondent under section 13 of the aforesaid Ordinance, is whether a proper notice under section 30 of the Displaced Persons (Compensation and Rehabili tation) Act of 1958 has been duly served by the respondent on the appellant. The parties have adduced evidence, both docu mentary and oral, on this issue. The respondent examined Asghar Ahmad (P. W. 2), Postman, in support of his averment of service of notice. This witness has stated that the house in question was situate within his beat and he delivered the registered acknowledgment due envelope bearing No. 515 on the 15th of May 1963 and the acknowledgment due receipt Exh. P. W. 2/I, was obtained by him in token of delivery of the registered letter. He further stated that the acknowledgment due receipt was signed by a boy, who emerged out of the house, when he knocked at the door and he (the aforesaid boy) affixed his signatures in his presence, when ladies in the house were also present the respondent's attorney (P. W. 3) has also deposed to the fact of having served notice (copy Exh. P. W. 3/1) on the appellant. The appellant only examined himself in rebuttal. The learned Rent Controller finding that the notice had not been delivered to the appellant personally or served on a male member of the family held that there was no proper service. This finding has been set aside by the lower Appellate Authority on the ground that the notice had been properly addressed and was served at the house of the respondent on somebody named as Rashid, who must be presumed to be a male member of the house, at which service was made, as he had come out of the house when the postman went there to deliver the letter and that the appellant has not denied connection with this Rashid.

2. In this Court the argument put forward on behalf of the appellant is that because the appellant is in possession of ground floor of the house, the possibility that the aforesaid Rashid belonged to the family occupying the other tenement of the property cannot be ruled out. It has also been urged that the plain language of section 30 of Act XXVIII of 1958 envisages that the notice should have been served on the tenant personally. These arguments are met by learned counsel for the respondent by saying that by virtue of the provision of section 27 of the General Clauses Act, unless the contrary is proved, service of the notice required by section 30 of Act XXVIII of 1958 shall be deemed to be effected by properly addressing, prepaying and posting by registered post (acknowledgment due). He argues that in the instant case the notice was closed in a properly addressed envelope, was pre‑paid and was posted as a registered letter (acknowledgment due). He maintains that this letter has been correctly delivered at the house, where the appellant resides and it is proved to have been received by a boy named Rashid, who came out of the house when the postman visited the house for delivery of the letter and in the absence of any denial on the part of the appellant as regards Rashid's connection with the family, it cannot be urged with success that the notice has not been served on a male member of the family of the appellant. He has further argued that the requirements of section 27 of the General Clauses Act and section 30 of Act XXVIII of 1958 having been fully complied with, the presumption of law under section 114, illustration (f) of the Evidence Act will be attracted. As regards the contention that there should have been personal service of the notice on the tenant, learned counsel argues that no such requirement can be spelt out of the language of section 30 of Act XXVIII of 1958.

3. The relevant provisions of law may be reproduced with advantage:‑

Section 30 (1)(b) of Act XXVIII of 1958.

"(1) Were any person is in possession of any evacuee house, or shop, or has been declared on or before the 20th day of December 1958, by a Custodian to have tenancy rights from a date prior to the 14th day of August 1947, in any industrial concern, cinema house or printing press which is transferred to any other person under the provisions of this Act, then notwithstanding anything contained in any other law such person shall without prejudice to any other right which he may have in that house, shop, industrial concern, cinema house or printing press, be deemed to be a tenant of the transferee on the same terms and conditions as to payment of rent or otherwise on which he held it immediately before transfer:‑--

Provided that‑

(a)

(b) it shall not be lawful for the transferee to eject such persons from the house or shop for a period of six years and from the industrial concern, cimema house or printing press for a period of 3 years from the date of transfer, notice of which shall be given by the transferee to the tenant within one month of such transfer by registered post (acknowledgment due).

Section 27 of the General Clauses Act------

"Where any Central Act or Regulation made after the com mencement of this Act authorises or requires any document to be served by post, whether the expression serve' or either of the expressions give' or send' or any other expression is used then, unless a different intention appears, 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."

Section 16 of the Evidence Act:‑

"Where there is a question whether a particular act was done, the existence of any course of business, according to which it naturally would have been done, is a relevant fact."

Illustrations

(a) The question is, whether a particular letter was despatched. The facts that it was the ordinary course of business for all letters put in a certain place to be carried to the post, and that that particular letter was put in that place are relevant.

(b) The question is, whether a particular letter reached A. The facts that it was posted in due course, and was not returned through the Dead Letter Office, are relevant.

Section 114 of the Evidence Act:------

"The Court may presume the existence of any fact which it thinks likely to have happened, regard being had to the common course of natural events, human conduct and public and private business, in their relation to the facts of the particular case."

Illustrations

"The Court may presume‑

(f) that the common course of business has been followed in particular cases;

These provisions would show that if a letter properly directed and pre‑paid containing the notice under section 30 is proved to have been posted by registered post (acknowledgment due), it is presumed that the letter reached its destination at the proper time according to the regular course of business of the post office and was received by the person to whom it was addressed A and the presumption is not rebutted by the fact that a receipt for the letter is produced signed by a person other than the addressee himself, if that other person is not established to be not a member of the family of the addressee or his servant or agent. Their Lordships of the Judicial Committee in Harihar Banerji and others v. Ramshahi Roy and others (1), while considering service of notice to quit, under section 106 of the Transfer of Property Act, 1882, observed as under:‑--

He seemed to be of opinion that the registered letter must be presumed to have been delivered to the person who signed on behalf of the addressee the receipt of it, but not to the addressee himself in the first instance or at all, and that as there was no proof that the persons other than the addressees who so signed were the duly authorised agents of the addressees to receive these notices the proof of service was defective. Service of a notice upon or delivery to such an agent would be good service or delivery to the principal though in fact the notice was destroyed by the agent and never was seen or heard of by the principal Tanham v. Nicholson (1872) 5 H L 561 but it is an entire mistake to suppose that the addressee must sign the receipt of a registered letter himself or that he cannot do so by the hand of another person, or that if another person does sign it on the addressee's behalf the pre sumption is that it never was delivered to the addressee himself mediately or immediately. For instance, if a servant in the addressee's house saw a notice banded in by the postman carried to the addressee, and banded to him that servant could certify that it was delivered to his master, and, could, if requested by the master, sign the receipt on the latter's behalf, though he was not the agent of the master authorised to take delivery on his, the master's behalf."

This authority was, however, attempted to be distinguished by learned counsel for the appellant on the ground that as section 106 of the Transfer of Property Act contemplates vicarious tender or delivery of the notice, section 30 of Act XXVIII of 1958 does not envisage any such relaxation and personal service of notice is a must. I find that no doubt under section 106 of the Transfer of Property Act, notice to quit may be served personally or by post or at the residence or in the last resort by being affixed to the property demised, the weighty observations of their Lordships in respect of service by post:

it is an entire mistake to suppose that the addressee must sign the receipt for a registered letter himself or that he cannot do so by the hand of another . . .",

fully cover the case before me. No authority to the contrary has been cited at the bar, on behalf of the appellant. There has been proper service of the statutory notice on the appellant and no exception can be taken to the judgment of the lower Appellate Authority in this regard. The appeal fails and is dis missed with costs.

Appeal dismissed.

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