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CASE NO.: Appeal (civil)  5130 of 2005

PETITIONER: A. Rama Rao and Ors

RESPONDENT: Raghu Nath Patnaik and Ors

DATE OF JUDGMENT: 24/04/2007

BENCH: Dr. ARIJIT PASAYAT & S.H. KAPADIA

JUDGMENT: J U D G M E N T  

Dr. ARIJIT PASAYAT, J.

       Challenge in this appeal is to the judgment rendered by a  Division Bench of the Orissa High Court dismissing the Letters  Patent Appeal filed by the appellants.  

       A brief reference to the factual aspects would be  necessary in view of the order proposed to be passed.             The suit which forms the subject matter of controversy in  the present appeal was one for specific performance of  contract filed by respondent No.1-Raghu Nath Patnaik as the  sole plaintiff.  

       In the suit it was contended that on 7.11.1983 defendant  No.1 executed an unregistered plain paper agreement  in  respect of the suit scheduled house site agreeing to alienate  the same in favour of the plaintiff for a consideration of  Rs.25,000/- and as a part payment Rs.5,000/- was paid.  Violating the terms of the agreement, he entered into another  agreement for the same site with defendant Nos.2 and 3 on  14.3.1984. After coming to know of the said arrangement,  plaintiff issued notice to all the defendants on 29.3.1984  intimating about the subsistence of the earlier agreement  between him and defendant No.1 and requesting them not to  enter into any sale transaction. The notice issued to defendant  No.1 returned unserved while the notices issued to defendants  Nos.2 and 3 returned unserved on their refusal. When the  plaintiff came to know that the defendants were going ahead  for execution of sale deed, he instituted a suit for specific  performance of the contract and other ancillary reliefs. The  defendant No.1 filed a written statement while the other two  defendants filed separate written statements. The plea was one  of denial of the execution of the purported earlier unregistered  agreement.  The Courts below took the view that once there  was refusal by defendant No.1 to receive the notice, it has to  be held that he had notice of the earlier agreement.  The trial  Court and the learned Single Judge dismissed the appeal.  Letters Patent Appeal was preferred where several pleas were  taken. It was pleaded that the plaintiff had failed to establish  the fact that defendant Nos.2 and 3 had knowledge about the  existence of the agreement prior to the execution of the sale

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deed/agreement to sale dated 14.3.1984 and on that ground  alone the suit should have been dismissed. It was pleaded that  defendant Nos.2 and 3 are bona fide purchasers for value  without notice of the so called previous unregistered  agreement. A plea relating to absence of pleading or evidence  of the plaintiff to prove that he was always ready and willing  was also taken. Several other pleas were raised regarding the  acceptance of the documents. It was pointed out that there  was no specific averment about the refusal of the defendants    to receive the notice because it is only stated that the  defendants evaded to receive the notice. Further, the postman  had not been examined. Therefore, the presumption of the  refusal as allegedly endorsed cannot be raised. The High Court  has erroneously held that the presumption is not rebutted by  specific denial. The High Court, as noted above, held the  appeal deserved to be dismissed without discussing various  stands on merit. It did not specifically deal with the plea  relating to non-service of notice.      

       The only observation so far as that issue is concerned is  to the following effect.   "We also find that all other points raised  by Mr. Mukherjee have been answered by the  trial Court as well as Hon’ble Single Judge in  First Appeal. After examining the evidence and  considering the submissions, we agree with  the findings arrived at by the court below and  the Hon’ble Single Judge, that Ext.-1 was a  valid document and was duly executed by the  defendant No.1 and that a decree to  specifically perform the terms of the agreement  (Ext.1) can be passed. We also confirm the  finding that the time stipulated in the  agreement not having expired, there was no  occasion for the appellants to initiate any  proceeding and the pleading regarding  appellant’s readiness and willingness is  adequate, as the same has not been  specifically traversed in the written statement."     

        In support of the appeal, learned counsel for the appellants  submitted that in the absence of examination of the postman  it was not permissible to draw an inference of refusal. In the  plaint there was no averment that the appellants had refused  to receive the notice. It was only stated that they had evaded.   It does not even speak of sending the notice by post or  endorsement by postman.  It was further pointed out that the  notice is purported to have been refused on 8.4.1984 which  was a Sunday. That itself shows falsity of plaintiff’s claim.  

       In response, learned counsel for the respondents  submitted that the statutory presumption about the  correctness of the postman’s endorsement has been rightly  held to be applicable by the Courts below. In fact, the evidence  led was to the effect that the refusal was on 5.4.1984 and not  on 8.4.1984 as claimed by the appellants. Since the suit was  filed on 5.4.1984 a specific stand regarding the refusal has not  been taken.   

       We find that the conclusions of the High Court on the  issue of refusal to accept the notice claimed to have been sent  by registered post, is rather vague. The High Court has merely  concluded that all other points have been considered by

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learned Single Judge. It has been brought on record that effect  of a decision of this Court in Puuuada Venkeshwara Rao v.  Chidamana Venkataramana (1976 (3) SCR 551) has not been  considered though specifically argued.  

       It appears that  stand was that when the defendant No.1   on oath stated that he did not receive the notice allegedly sent  by post, the same would prevail over  the postal remarks that  it was "refused" unless the postman was examined.  Further,  the plea that there was no specific averment regarding sending  the notice by post or its refusal has not been considered.  Learned counsel for the respondents has submitted that suit  was filed on 5.4.1984 i.e. the date of refusal overlooks the plea  raised to the effect that  the same could have been brought in  by way of an amendment and/or that the alleged date of  refusal was 8.4.1984.   

        Learned counsel for the appellants has produced before  us original paper books filed before the High Court which  show the endorsement that their refusal was 8.4.1984.  

In above view of  the matter, we direct the High Court to  record its findings on the question of service of notice and also  the effect of the absence of any definite and specific plea  regarding dispatch of notice by post and/or its refusal. Even if  it is accepted that the refusal was on 5.4.1984 i.e. the date of  filing of the suit nothing prevented the plaintiff to at least  mention that the notice has been sent by post. The findings  shall be recorded by the High Court after granting opportunity  to the parties to place their respective stand. The High Court  shall send its findings to this Court after recording the same  within a period of three months. Call this matter after four  months.