Orissa High Court
Snigdharani Barik vs Kalendra Maszid And Others …. … on 8 January, 2025
Author: Murahari Sri Raman
Bench: Murahari Sri Raman
IN THE HIGH COURT OF ORISSA AT CUTTACK
CRP No.42 of 2023
Snigdharani Barik .... Petitioner
Mr. Satyabadi Mantry, Advocate
-versus-
Kalendra Maszid and others .... Opposite Parties
Mr. Jajati Keshari Khuntia, Advocate for O.P.No.1
Mr. MD Fayaz, Advocate for O.P. No.8
CORAM:
HON'BLE MR. JUSTICE MURAHARI SRI RAMAN
Order No. ORDER 09. 08.01.2025
CRP No.42 of 2023 & I.A. Nos.66, 65 & 64 of 2024
This matter is taken up through Hybrid Mode.
2. As per office note it shows that notice issued to opposite
party Nos. 5(a) and 5(b) returned unserved with a report
“unclaimed”. It is stated by Mr. Satyabadi Mantry, learned counsel
for the petitioner that the “unclaimed” notice as against the said
opposite parties be treated as sufficient.
This Court takes note of following observation made in Ajeet Seeds
Ltd. Vrs. K. Gopala Krishnaiah, (2014) 8 SCR 880:
“9. This Court then explained the nature of presumptions under
Section 114 of the Evidence Act and under Section 27 of the
GC Act and pointed out how these two presumptions are to
be employed while considering the question of service of
notice under Section 138 of the NI Act. The relevant
paragraphs read as under:
„13. According to Section 114 of the Act, read with
Illustration (f) thereunder, when it appears to the
Court that the common course of business renders it
probable that a thing would happen, the Court may
draw presumption that the thing would have
happened, unless there are circumstances in a
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particular case to show that the common course of
business was not followed. Thus, Section 114 enables
the Court to 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. Consequently, the court
can presume that the common course of business has
been followed in particular cases. When applied to
communications sent by post, Section 114 enables the
Court to presume that in the common course of
natural events, the communication would have been
delivered at the address of the addressee. But the
presumption that is raised under Section 27 of the Act
is a far stronger presumption. Further; while Section
114 of Evidence Act refers to a general presumption,
Section 27 refers to a specific presumption. For the
sake of ready reference, Section 27 of G. C. Act is
extracted below:
„27. Meaning of service by post.- Where any Central
Act or regulation made after the
commencement of this Act authorizes 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, pre-
paying 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‟.
14. Section 27 gives rise to a presumption that service G
of notice has been effected when it is sent to the
correct address by registered post. In view of the said
presumption, when stating that a notice has been sent
by registered post to the address of the drawer, it is
unnecessary to further aver in the complaint that in
spite of the return of the notice unserved, it is deemed
to have been served or that the addressee is deemed to
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have knowledge of the notice. 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. This Court has already held that
when a notice is sent , by registered post and is
returned with a 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. [Vide Jagdish Singh Vs. Natthu Singh
(1992) 1 SCC 647; State of M.P. Vs. Hiralal & Ors.
(1996) 7 SCC 523 and V. Raja Kumari Vs. P.
Subbarama Naidu & Anr. (2004) 8 SCC 74]. It is,
therefore, manifest that in view of the presumption
available under Section 27 of the Act, it is not
necessary to aver in the complaint under Section 138
of the Act that service of notice was evaded by the
accused or that the ·accused had a role to play in the
return of the notice · unserved.‟
10. It is thus clear that Section 114 of the Evidence Act enables
the Court to presume that in the common course of natural
events, the communication would have been delivered at the
address of the addressee. Section 27 of the GC Act gives rise
to a presumption that service of notice has been effected
when it is sent to the correct address by registered post. It is
not necessary to aver in the complaint that in spite of the
return of the notice unserved, it is deemed to have been
served or that the addressee is deemed to have knowledge of
the notice. 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.”
Considering the submission of the learned Counsel and in view of
decision rendered by the Hon’ble Supreme Court of India as
referred to supra the notices issued to said opposite parties are
treated to be sufficient.
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3. Learned counsel appearing for the petitioner submitted that
since the opposite party No.5 is dead during the pendency of the
petition, he has filed Interlocutory Applications bearing I.A. No.66
of 2024 for condonation of delay in filing the petition for
substitution, I.A.No.65 of 2024 for setting aside abatement and I.A.
No.64 of 2024 for substitution of the deceased opposite party No.5.
4. Heard learned counsel appearing for the parties.
5. No serious objection has been raised on behalf of the
opposite parties.
6. Considering the reason stated in these Interlocutory
Applications and taking note of submissions advanced by the
learned counsel for the parties, the abatement is set aside and delay
in filing the petition for substitution is condoned and the prayer
made for substitution is allowed.
7. Accordingly, the aforesaid I.As. stand disposed of.
8. In view of the above, consolidated cause title be furnished
within two weeks. In the event of filing of said consolidated cause
title, the Office shall place the same at appropriate position.
9. List this matter on 31.01.2025.
(M.S. Raman)
Judge
Suchitra
Signature Not Verified
Digitally Signed
Signed by: SUCHITRA BEHERA
Reason: Authentication
Location: HIGH COURT OF ORISSA, CUTTACK
Date: 08-Jan-2025 18:00:02
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