Rao And Ors Vs. Raghu Nath Patnaik and Ors  Insc 438 (24 April 2007)
Dr. ARIJIT PASAYAT & S.H. KAPADIA
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
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 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
"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
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
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 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
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
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.
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