1. ' The appellant was ordered to be evicted from the premises in his occupation on the ground of default by the Rent Controller and the order of the Controller bas been upheld by the first appellate authority on 30-11-1973 in First Appeal No, 29 of 1972.
2. The admitted position in the case is that the property in possession of appellant was transferred under the provisions of Displaced Persons (Compensation and Rehabilitation) Act, 1958, to the respondent and after transfer of the property in his favour he served a notice on the appellant informing him only about the transfer of property. The respondent alleged to have served thereafter another notice which was notice of demand and in this notice the appellant was called upon to pay rent of the premises in his occupation. As the appellant did not allegedly paid the rent after receipt of the notice of demand, the respondent instituted ejectment case against the appellant. The appellant in his written statement filed before the Rent Controller accepted service of first notice by which the respondent had intimated about the transfer of property in his favour but denied having received the second notice which was a notice of demand. It may be mentioned here that a transferee under the provisions of section 30 of the D. P. (Compensation and Rehabilitation) Act, 1958, was required to serve on the tenant of the property transferred to him a notice of transfer and a notice of demand for payment of rent of property and until such a notice was served by the transferee and a default of three months was committed by the tenant in payment of rent, no ejectment proceedings could be instituted against such occupant of property on the ground of default. Similarly, where notice of transfer was served on such occupant of property proceedings on the ground of personal bona fide need could not be filed until expiration of six years period from the date of service of notice. The two notices required to be served under section 30 of the D. P. Act could either be combined in one notice or the same could be served separately. In the case before me the two notices were served separately by the transferee. As the appellant disputed receipt of notice of demand and the application on ground of default could be filed only after expiry of three months period from the date of service of notice and a consequent default by the tenant, the Rent Controller framed a preliminary issue regarding maintainability of application on the ground of default in payment of rent. The Rent Controller while framing preliminary issue regarding maintainability of the case also framed issue of default in the case and after recording evidence of the parties on these two issues held that notice of demand under section 30 of the D. P. Act, 1958, was duly served on the appellant and as no rent admittedly was paid or tendered by the appellant after service of notice of demand he ordered eviction of the appellant on the ground of default, The first appellate authority fully agreed with the findings of Rent Controller and ejectment order against the appellant was maintained. The learned counsel for the appellant in this appeal has only challenged the finding of the two Courts below regarding service of notice of demand under section 30 of the D. P. Act, on the appellant. It is urged that the two Courts below were wrong in holding service of notice of demand under section 30 of the D. P.
2. Act as good on the basis of the alleged endorsement of postal authorities to the effect that the envelop containing the notice was refused by. The appellant. It is urged that in view of the denial of appellant on oath in his evidence that the envelop containing the above notice was offered to him and he refused to receive the same, the presumption under section 114 of Evidence Act, drawn by the Courts below was sufficiently rebutted and the endorsement should have been proved by calling the postman who allegedly made the above endorsement. The contention of the learned counsel is not without substance. The two Courts below proceeded to hold the service as good in view of provision of section 114 of the Evidence Act. It was held by the Courts below that the endorsement of "Refusal" on the envelop by the postal authorities proved service of notice on the appellant in the circumstances of the case. Reliance in this behalf was placed by the Courts below on the case of Bashir Ahmed v. Mumtaz Khan, in which a learned Single Judge of the erstwhile High Court of West Pakistan took the view that it was not necessary to examine the postman in view of the endorsement of "Refusal" on the envelcp to prove whether the envelop containing notice was offered to the addressee which he refused to accept. The learned Judge took the above view in view of provision of section 114 of the Evidence Act and held, that in such circumstances the onus to show that the registered envelop was never offered remained on the addressee. There can be no cavil with the proposition laid down in the above case. However, the point before me relates to the extent of presumption under section 114 of Evidence Act and the circumstances under which this presumption shall stand rebutted/displaced. In the case of Gulzar Begum v. Saira Bibi, it was observed by the Supreme Court that where the addressee admitted that notice was properly addressed in her name and none else in the Mohallah lived by that name but denied the receipt of the notice and her signature on the acknowledgment the presumption as to service of notice in such circumstances was held to have been rebutted and service of notice should have been proved by comparing the signature of the addressee with the admitted signatures and by examining the postman concerned who allegedly served the notice on the addressee. In the case of Humayun Zulfiqar Ismail v. Hamida Saadat Ali, the Supreme Court noticed the conflict of opinion among the different High Courts in India and Pakistan with regard to the scope of presumption arising under section 27 of the General Clauses Act and section 114 of the Evidence Act. It was found that while some Courts have taken the view that presumption is only to the extent that the letter was posted and if it was returned there is no presumption that it was in fact tendered to the person sought to be bound by it, the others took the view that a bare denial by the addressee is sufficient to rebut this presumption and the onus where there is such denial, it has been held in cases, is shifted to the party seeking to rely upon the notice to show that it was in fact served and to prove1 2 3 the date of service, when the date is relevant. However, the Supreme Court after noticing the above conflict of opinion did not resolve the controversy itself in view of the fact that the case was remanded to the first appellate authority for decision according to law. In the case of Amroz Khan v. Arbab Muhammad Ghalib, a learned Single Judge of the Peshawar High Court took the view that where the addressee specifically denies on oath in evidence that the letter containing the notice was offered to him and it was refused by him it was necessary for the person relying on the service of notice to have proved the same by leading the primary evidence in support of his claim with regard to tender of notice by examining the postman. After careful examination of the above- cited cases I am of the view that where it is shown in evidence that an envelop containing a letter was posted with correct name and address of the addressee and was not received back a presumption arise under the law that such letter has been delivered to the addressee. Similarly if a notice with correct description of addressee is posted and is returned back with the endorsement of "refused" by the postal authorities, the presumption of service of notice on the addressee will arise in the circumstances. However, the presumption of service in both cases shall stand rebutted if the addressee appears in Court and makes a statement on oath that he did not receive the letter alleged to have been sent to him or that he did not refuse to accept the service of letter. In such cases the initial burden of proving service of letter shall continue to remain on the person who relies on the service of such letter. This burden can be discharged by calling the postman concerned who delivered the letter or who made the endorsement of "refusal". In the case before me the statement of respondent regarding service of notice of demand under section 30 of D. P.
3. Act, was seriously challenged in the cross-examination by suggesting that the endorsement of "refusal" was obtained by him in collusion with the postman concerned. The respondent in cross- examination admitted that the A/D receipt and the postal receipt did not pertain to the envelop which allegedly contained the endorsement of "refusal" by the postal authorities. The appellant in his statement on oath before the Court categorically stated that he was never served with the disputed notice and the suggestion made to him in cross-examination that he had refused to accept the notice when offered by the postman was denied. In this state of evidence in my view the presumption regarding service of notice on the appellant arising under section 114 of the Evidence Act was sufficiently rebutted and burden of proving service of notice remained B on the respondent which in the circumstances could only be discharged by calling the postman concerned who allegedly made the endorsement of "refusal" on the postal envelop. I, therefore, hold that service of demand notice under section 30 of the D. P. Act, was not proved on the appellant and, therefore, the application for ejectment on the ground of default was not maintainable in law. I was inclined to make an order of remand to give an opportunity to the respondent to prove service of notice but the learned counsel for the respondent stated before me that in view of the fact that the notice was sent about ten years back it will not be possible to trace the postman who made the endorsement of "refusal" on the envelop. In these circumstances no useful purpose will be served in remanding the case back to the Rent Controller. The learned counsel for the respondent made a grievance that the application for ejectment was filed on the ground of default and personal requirement both but the Rent Controller only decided question of default. It is, however, conceded that no evidence was led by the parties on issue of personal and bona fide requirement and no grievance appears to have been made either before the Controller or the first appellate authority in that behalf. I may however state that since the issue of personal and bona fide requirement was not decided by the Courts below a fresh application on that ground will not be barred because of dismissal of respondent's application on the ground of default.
4. ' This appeal is accordingly accepted and the orders of Courts below are set aside. The ejectment application on the ground of default is dismissed for want of service of notice of demand under4 section 30 of the D. P. Act. In the circumstances of the case I will make no order as to costs. PLD 1965 Lah. 126 1972 SCMR 251 1968 SCMR. 828 PLD 1980 Posh. 163