Presumption of certain facts:
The legal proposition in context of presumption of service by registered post can be found under Section 114 of the Indian Evidence Act. The provision envisages the law regarding the presumption of certain facts. It states that 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.
In several cases, the Indian Judiciary has been confronted with the issue of presumption of service by registered post. One of the earliest cases which recognized the concept of presumption of service by registered post is the case of Harihar Banerjee vs. Ramshashi Roy AIR 1918 PC 102 In this case, the Court held that there can be a presumption of receipt of a letter sent under postal certificate in view of the provisions of Section 114(f) of the Act. Subclause (f) of Section 114 envisages that the Court may presume “that the common course of business had been followed in particular cases.”
Supreme Court in the case titled “N. Paraeswaran Unni Vs. G. Kannan and Another” in Criminal Appeal No 455 of 2006 has referred the case titled “M/S New India Sugar Mills Ltd. v. Commissioner of Sales Tax, AIR 1963 SC 1207”, and held, inter alia, that, “13. It is clear from Section 27 of the General Clauses Act, 1897 and Section 114 of the Indian Evidence Act, 1972, that once notice is sent by registered post by correctly addressing to the drawer of the cheque, the service of notice is deemed to have been effected.”
Meaning of Service by Post
Section 27 of General Clauses Act, 1897 provides the meaning of service by post. It postulates that where any Act authorizes any document to be served by post, where the expression “serve” or either of the expressions “give” or “send” or any other expression in used, then, unless a different intention appears, the service shall be deemed to be effected by properly addressing pre-paying and posting by registered post. Hence, service by post implies service by registered post.
This aforesaid has been reaffirmed by the Supreme Court in the case of C.C. Alavi Haji Vs. Palapetty Muhammed & Anr. (2007) 6 SCC 555 wherein the Court opined that Section 27 of General Clauses Act, 1897 gives rise to a presumption that service of notice has been effected when it is sent to the correct address by registered post……… Unless and until the contrary is proved by the addressee, service of notice is deemed to have been effected at the time at which the letter would have been delivered in the ordinary course of business.
A similar view was taken by the Court in the case of M/s. Madan & Co. v. Wazir Jaivir Chand(1989) 1 SCC 264 In this case, the Supreme Court while dealing with whether the duty of the landlord was complete by sending of notice with reference to the presumption under Section 27 of General Clauses Act, held that once there is a proper tender of the demand notice at the correct address then there is service of the demand notice in view of the presumption as per Section 27 of General Clauses Act.
Presumption of service by registered post is a rebuttal presumption
Here it is pertinent to mention that presumption of service by registered post is a permissible presumption i.e. a rebuttable presumption and not an inevitable presumption. In the case of Mst. L.M.S. Ummu Saleema v. B.B.Gujral & Anr. AIR 1981 SC 1191, this Court dealt with the issue of presumption of service of letter sent under postal cover, and observed that presumption under Section 114 of the Act is a permissible and not an inevitable presumption. Neither Section 16 of the Evidence Act nor Section 114 of the Act compels the Court to draw a presumption. The presumption may or may not be drawn. On the facts and circumstances of a case, the Court may refuse to draw the presumption. On the other hand, the presumption may be drawn initially but on a consideration of the evidence, the Court may hold the presumption rebutted.
Similarly, in the case of Parimal v. Veena @Bharti(2011) 3 SCC 545, the Supreme Court held that in view of Section 114(f) of Evidence Act read with Section 27 of General Clauses Act, 1897 there is a presumption that the addressee has received the letter sent by registered post. However, the presumption is rebuttable on a consideration of evidence of impeccable character.
Burden to prove presumption of service on the party challenging presumption
In the case of Gujarat Electricity Board & Anr. v. Atmaram Sungomal Poshani AIR 1989 SC 1433, the Supreme Court examined the issue regarding the presumption of service of letter sent by registered post under Section 27 of General Clauses Act, and held that there is a presumption of service of a letter sent under registered cover…. No doubt the presumption is rebuttable and it is open to the party concerned to place evidence before the court to rebut the presumption by showing that the address mentioned on the cover was incorrect or that the postal authorities never tendered the registered letter to him…..The burden to rebut the presumption lies on the party challenging the factum of service.
The provision of Section 101 of the Evidence Act provide that the burden of proof of the facts rests on the party who substantially asserts it and not on the party who denies it. In fact, burden of proof means that a party has to prove an allegation before he is entitled to a judgement in his favour. Further law under Section 103 of the Act further amplifies the general rule of Section 101 that the burden of proof lies on the person who asserts the affirmative of the facts in issue.
It is clear from Section 27 of the General Clauses Act, 1897 and Section 114 of the Indian Evidence Act, 1972, that once notice is sent by registered post by correctly addressing to the drawer of the cheque, the service of notice is deemed to have been effected.
Supreme Court in the case titled “N. Paraeswaran Unni Vs. G. Kannan and Another” in Criminal Appeal No 455 of 2006 has referred the case titled “M/S New India Sugar Mills Ltd. v. Commissioner of Sales Tax, AIR 1963 SC 1207”, and held, inter alia, that, “14. It is well settled that interpretation of a Statute should be based on the object which the intended legislation sought to achieve. It is a recognized rule of interpretation of statutes that expressions used therein should ordinarily be understood in a sense in which they best harmonize with the object of the statute, and which effectuate the object of the Legislature. If an expression is susceptible of a narrow or technical meaning, as well as a popular meaning, the Court would be justified in assuming that the Legislature used the expression in the sense which would carry out its object and reject that which renders the exercise of its power invalid"
When a notice is sent by registered post and is returned with postal endorsement
Supreme Court in a case titled N. Paraeswaran Unni Vs. G. Kannan and Another in Criminal Appeal No 455 of 2006 has referred the cases titled Jagdish Singh v. Natthu Singh, (1992) 1 SCC 647; State of M.P. v. Hiralal, (1996) 7 SCC 523 and V. Raja Kumari v. P. Subbarama Naidu, (2004) 8 SCC 774 and held, inter alia, that, “15. 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.”
Author is a practicing advocate in Supreme Court, Delhi and Punjab & Haryana High Courts and Delhi/NCR District Courts, various Tribunals and Commissions for the last about 18 years and has a rich experience of civil, matrimonial, service (military & civil), labour, criminal, consumer, accident claim (motor & rail) cases after retirement from military service in the rank of Major.