Plaint should contain exact details of the specific date, month, year, etc.of creation of the HUF for the first time; mere statement that HUF exists and property belongs to HUF is not sufficient

Reference may again be had to the judgment of a Coordinate Bench of this court in the case of Promod Kumar J ain & Ors. vs. Ram Kali J ain & Ors., (supra) where the court held as follows:-

"13. Reference on the aspect of HUF can be made to:

(i) Neelam Vs. Sada Ram MANU/DE/0322/2013, holding (i) that the Hindu Succession Act, 1956 did away with the concept of ancestral properties as existed prior thereto; after coming into force thereof, the property inherited by a male from his father is held as self-acquired property in which children of such male do not acquire any right by birth; (ii) that the plea of property being a joint family property owing to being jointly owned by members of a family, is not the plea of existence of a coparcenary or HUF; (iii) that HUF and coparcenary are not one and the same under the Hindu law though for the purposes of taxation under the taxation laws are treated as one and the same; (iv) that the law of succession, after coming into force of the Hindu Succession Act is governed thereby only; of course Section 6 thereof carves out an exception qua interest held by the deceased in a Mitakshara coparcenary property and provides that such interest shall devolve by survivorship upon the surviving members of the coparcenary and not in accordance with the Act; (v) however in the absence of any plea of existence of any coparcenary, merely on the plea of the property being of the joint family, no inference of a coparcenary arises; (vi) for a case for claiming a share in the property otherwise than under the Hindu Succession Act, it has to be pleaded that there existed a HUF since prior to the coming into force of the Succession Act and which HUF, by virtue of Section 6 of the Act has been permitted to be continued.

(ii) Surender Kumar Vs. Dhani Ram MANU/DE/0126/2016 : AIR 2016 Del 120 holding as under:

"5. The Supreme Court around 30 years back in the judgment in the case of Commissioner of Wealth Tax, Kanpur v. Chander Sen, MANU/SC/0265/1986 : (1986) 3 SCC 567, held that after passing of the Hindu Succession Act, 1956 the traditional view that on inheritance of an immovable property from paternal ancestors up to three degrees, automatically an HUF came into existence, no longer remained the legal position in view of Section 8 of the Hindu Succession Act, 1956. This judgment of the Supreme Court in the case of Chander Sen (supra) was thereafter followed by the Supreme Court in the case of Yudhishter v. Ashok Kumar, MANU/SC/0525/1986 : (1987) 1 SCC 204 wherein the Supreme Court reiterated the legal position that after coming into force of Section 8 of the Hindu Succession Act, 1956, inheritance of ancestral property after 1956 does not create an HUF property and inheritance of ancestral property after 1956 therefore does not result in creation of an HUF property.

6. In view of the ratios of the judgments in the cases of Chander Sen (supra) and Yudhishter (supra), in law ancestral property can only become an HUF property if inheritance is before 1956, and such HUF property therefore which came into existence before 1956 continues as such even after 1956. In such a case, since an HUF already existed prior to 1956, thereafter, since the same HUF with its properties continues, the status of joint Hindu family/HUF properties continues, and only in such a case, members of such joint Hindu family are coparceners entitling them to a share in the HUF properties.

7. On the legal position which emerges pre 1956 i.e. before passing of the Hindu Succession Act, 1956 and post 1956 i.e. after passing of the Hindu Succession Act, 1956, the same has been considered by me recently in the judgment in the case of Sunny (Minor) v. Sh. Raj Singh, CS(OS) No. 431/2006 decided on 17.11.2015. In this judgment, I have referred to and relied upon the ratio of the judgment of the Supreme Court in the case of Yudhishter (supra) and have essentially arrived at the following conclusions:-

(i) If a person dies after passing of the Hindu Succession Act, 1956 and there is no HUF existing at the time of the death of such a person, inheritance of an immovable property of such a person by his successors-in-interest is no doubt inheritance of an 'ancestral' property but the inheritance is as a self-acquired property in the hands of the successor and not as an HUF property although the successor(s) indeed inherits 'ancestral' property i.e. a property belonging to his paternal ancestor.

(ii) The only way in which a Hindu Undivided Family/joint Hindu family can come into existence after 1956 (and when a joint Hindu family did not exist prior to 1956) is if an individual's property is thrown into a common hotchpotch. Also, once a property is thrown into a common hotchpotch, it is necessary that the exact details of the specific date/month/year etc. of creation of an HUF for the first time by throwing a property into a common hotchpotch have to be clearly pleaded and mentioned and which requirement is a legal requirement because of Order VI Rule 4 CPC which provides

that all necessary factual details of the cause of action must be clearly stated.

(iii) An HUF can also exist if paternal ancestral properties are inherited prior to 1956, and such status of parties qua the properties has continued after 1956 with respect to properties inherited prior to 1956 from paternal ancestors. Once that status and position continues even after 1956; of the HUF and of its properties existing; a coparcener etc. will have a right to seek partition of the properties.

(iv) Even before 1956, an HUF can come into existence even without inheritance of ancestral property from paternal ancestors, as HUF could have been created prior to 1956 by throwing of individual property into a common hotchpotch. If such an HUF continues even after 1956, then in such a case a coparcener etc. of an HUF was entitled to partition of the HUF property.

9. I would like to further note that it is not enough to aver a mantra, so to say, in the plaint simply that a joint Hindu family or HUF exists. Detailed facts as required by Order VI Rule 4 CPC as to when and how the HUF properties have become HUF properties must be clearly and categorically averred. Such averments have to be made by factual references qua each property claimed to be an HUF property as to how the same is an HUF property, and, in law generally bringing in any and every property as HUF property is incorrect as there is known tendency of litigants to include unnecessarily many properties as HUF properties, and which is done for less than honest motives. Whereas prior to passing of the Hindu Succession Act, 1956 there was a presumption as to the existence of an HUF and its properties, but after passing of the Hindu Succession Act, 1956 in view of the ratios of the judgments of the Supreme Court in the cases of Chander Sen (supra) and Yudhishter (supra) there is no such presumption that inheritance of ancestral property creates an HUF, and therefore, in such a post 1956 scenario a mere ipse dixit statement in the plaint that an HUF and its properties exist is not a sufficient compliance of the legal requirement of creation or existence of HUF properties inasmuch as it is necessary for existence of an HUF and its properties that it must be specifically stated that as to whether the HUF came into existence before 1956 or after 1956 and if so how and in what manner giving all requisite factual details. It is only in such circumstances where specific facts are mentioned to clearly plead a cause of action of existence of an HUF and its properties, can a suit then be filed and maintained by a person claiming to be a coparcener for partition of the HUF properties.

The proof of demand is an indispensable essentiality to prove the offence under The Prevention of Corruption Act

In the light of the serious discrepancies in the evidence of the prosecution, the accused is entitled for benefit of doubt. The demand of bribe is not established by clinching evidence. Acceptance of bribe suffers from serious doubt. In Sujit Biswas Vs. State of Assam, it was held that Suspicion, however grave it may be, cannot take the place of proof and the prosecution cannot aford to rests its case in the realm "may be" true but has to upgrade it in the domain of "may be", in order to steer clear of any possible surmise or conjuncture. Court must ensure that miscarriage of justice are avoided and if in the facts and circumstances, two views are possible then, the benefit of doubt must be given to the accused. Applying the legal principle as above, the material on record, leave note manner of doubt that the prosecution in the present case, has failed to prove unequivocally the demand of illegal gratification and even its acceptance. In the case of P.Satyanarayna Murthy Vs. District Inspector of Police, State of Andhra Pradesh & Anr. It was held that the proof of demand of illegal gratification is gravamen of offence under Sections 7 and 13(1)(d)(i) and (ii) of the P.C. Act and in the absence thereof mistakenly the charge therefore, would fail. Mere acceptance of any amount by way of illegal gratification or recovery thereof, dehors the proof of demand, ipso facto, would not be sufficient to prove home the charge under these sections of the Act.

As a corollary, failure of the prosecution to prove the demand for illegal gratification would be fatal and mere recovery of the amount from the person accused of the offence under Sections 7 or 13 of the Act would not entail his conviction thereunder. In the case of B. Jayaraj v. State of Andhra Pradesh. It was held that the presumption under Section 20 of the P.C. Act can be drawn on proof of acceptance of illegal gratification was received for doing or forbearing to do any oficial act. Proof of acceptance of illegal gratification can follow only if there is proof of demand. In catena of decisions, the Apex Court has held that mere possession of recovery of currency note from an accused without proof of demand would not establish an offence under Section 7 as well as Section 13(1)(d), 13(2) of the P.C. Act. It has been propounded that in absence of proof of demand of any illegal gratification, the use of corrupt or illegal means or abuse of position as a public servant to obtain any valuable thing or pecuniary advantage, cannot be held to be proved. The proof of demand has been held to be an indispensable essentiality to prove the offence. In the present case, the demand as well as acceptance is under shadow of doubt and has not been established beyond reasonable doubt. 31 Considering the discrepancies in the evidence of the prosecution witnesses, I find that the evidence adduced against the accused by prosecution suffers from doubt. In the circumstances, the evidence relating to demand and acceptance cannot be believed. The accused is entitled for benefit of doubt and deserves to be acquitted.[Para No.30]

Bail should be granted or refused based on the probability of attendance of the party to take his trial

By now it is well settled that gravity alone cannot be a decisive ground to deny bail, rather competing factors are required to be balanced by the court while exercising its discretion. It has been repeatedly held by the Hon'ble Apex Court that object of bail is to secure the appearance of the accused person at his trial by reasonable amount of bail. The object of bail is neither punitive nor preventative. The Hon'ble Apex Court in Sanjay Chandra versus Central Bureau of Investigation (2012)1 Supreme Court Cases 49; has been held as under:­ "The object of bail is to secure the appearance of the accused person at his trial by reasonable amount of bail. The object of bail is neither punitive nor preventative. Deprivation of liberty must be considered a punishment, unless it can be required to ensure that an accused person will stand his trial when called upon. The Courts owe more than verbal respect to the principle that punishment begins after conviction, and that every man is deemed to be innocent until duly tried and duly found guilty. Detention in custody pending completion of trial could be a cause of great hardship. From time to time, necessity demands that some unconvicted persons should be held in custody pending trial to secure their attendance at the trial but in such cases, "necessity" is the operative test. In India , it would be quite contrary to the concept of personal liberty enshrined in the Constitution that any person should be punished in respect of any matter, upon which, he has not been convicted or that in any circumstances, he should be deprived of his liberty upon only the belief that he will tamper with the witnesses if left at liberty, save in the most extraordinary circumstances. Apart from the question of prevention being the object of refusal of bail, one must not lose sight of the fact that any imprisonment before conviction has a substantial punitive content and it would be improper for any court to refuse bail as a mark of disapproval of former conduct whether the accused has been convicted for it or not or to refuse bail to an unconvicted person for the propose of giving him a taste of imprisonment as a lesson."[Para No.5]

    Needless to say object of the bail is to secure the attendance of the accused in the trial and the proper test to be applied in the solution of the question whether bail should be granted or refused is whether it is probable that the party will appear to take his trial. Otherwise also, normal rule is of bail and not jail. Apart from above, Court has to keep in mind nature of accusations, nature of evidence in support thereof, severity of the punishment, which conviction will entail, character of the accused, circumstances which are peculiar to the accused involved in that crime.[Para No.6]

When addressee refuses to accept registered post, it is presumed due service and knowledge of contents of letter can always be imputed on the addressee

Coming to the issue regarding the alleged non-service of notice under Section 106 of the Act on the appellant, a bare look at the Exhibit-6, which is an undelivered Registered A/D envelop sent to the appellant reveals that the same was sent by the counsel for the plaintiff to the appellant. The appellant in his statement admitted that the address indicated on the envelop was correct. The envelop clearly bears the endorsement made by the postman regarding refusal to receive the article. It is well settled that a notice sent under Section 106 of the Act, if refused by the tenant, the same is a sufficient service of the notice.

    Hon'ble Supreme Court in Puwada Venketeswara Rao v. Chidamana Venkata Ramana : AIR 1976 SC 869, observed that where a notice by registered post is returned with endorsement 'refused' it is not always necessary to produce the postman who tried to affect the service.

    In Gujarat Electricity Board & Anr. v. Atmaram Sungomal Poshani : 1989 (2) SCC 602, the Supreme Court observed as under:

"8. There is presumption of service of a letter sent under registered cover, if the same is returned back with a postal endorsement that the addressee refused to accept the same. 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 or that there was no occasion for him to refuse the same. The burden to rebut the presumption lies on the Party, challenging the factum of service. In the instant case the respondent failed to discharge this burden as he failed to place material before the Court to show that the endorsement made by the postal authorities was wrong and incorrect. Mere denial made by the respondent in the circumstances of the case was not sufficient to rebut the presumption relating to service of the registered cover. We are, therefore, of the opinion that the letter dated 24-4-1974 was served on the respondent and he refused to accept the same. Consequently, the service was complete and the view taken by the High Court is incorrect."

In cheque dishonor case; failure of complainant to give satisfactory reply about his financial capacity to pay/give the amount; is a probable defence on behalf of the accused

We having noticed the ratio laid down by this Court in above cases on Sections 118(a) and 139, we now summarise the principles enumerated by this Court in following manner:-

(i) Once the execution of cheque is admitted Section 139 of the Act mandates a presumption that the cheque was for the discharge of any debt or other liability.

(ii) The presumption under Section 139 is a rebuttable presumption and the onus is on the accused to raise the probable defence. The standard of proof for rebutting the presumption is that of preponderance of probabilities.

(iii) To rebut the presumption, it is open for the accused to rely on evidence led by him or accused can also rely on the materials submitted by the complainant in order to raise a probable defence. Inference of preponderance of probabilities can be drawn not only from the materials brought on record by the parties but also by reference to the circumstances upon which they rely.

(iv) That it is not necessary for the accused to come in the witness box in support of his defence, Section 139 imposed an evidentiary burden and not a persuasive burden.

(v) It is not necessary for the accused to come in the witness box to support his defence.[Para No.23]

 Applying the preposition of law as noted above, in facts of the present case, it is clear that signature on cheque having been admitted, a presumption shall be raised under Section 139 that cheque was issued in discharge of debt or liability. The question to be looked into is as to whether any probable defence was raised by the accused. In cross-examination of the PW1, when the specific question was put that cheque was issued in relation to loan of Rs.25,000/- taken by the accused, the PW1 said that he does not remember. PW1 in his evidence admitted that he retired in 1997 on which date he received monetary benefit of Rs. 8 lakhs, which was encashed by the complainant. It was also brought in the evidence that in the year 2010, the complainant entered into a sale agreement for which he paid an amount of Rs.4,50,000/- to Balana Gouda towards sale consideration. Payment of Rs.4,50,000/- being admitted in the year 2010 and further payment of loan of Rs.50,000/- with regard to which complaint No.119 of 2012 was filed by the complainant, copy of which complaint was also filed as Ex.D2, there was burden on the complainant to prove his financial capacity. In the year 2010-2011, as per own case of the complainant, he made payment of Rs.18 lakhs. During his cross-examination, when fina>ncial capacity to pay Rs.6 lakhs to the accused was questioned, there was no satisfactory reply given by the complainant. The evidence on record, thus, is a probable defence on behalf of the accused, which shifted the burden on the complainant to prove his financial capacity and other facts.[Para No.24]

While deciding bail application, it cannot be presumed that petitioner will flee justice or will influence the investigation/witnesses

Grant of bail cannot be thwarted merely by asserting that offence is grave.

Consequences of pre-trial detention are grave.

    In AIR 2019 SC 5272, titled P. Chidambaram v. Central Bureau of Investigation, CBI had opposed the bail plea on the grounds of:- (i) flight risk; (ii) tampering with evidence; and (iii) influencing witnesses. The first two contentions were rejected by the High Court. But bail was declined on the ground that possibility of influencing the witnesses in the ongoing investigation cannot be ruled out. Hon'ble Apex Court after considering (2001) 4 SCC 280, titled Prahlad Singh Bhati v. NCT, Delhi and another;( 2004) 7 SCC 528, titled Kalyan Chandra sarkar v.R ajesh Ranjan and another; (2005) 2 SCC 13, titled Jayendra Saraswathi Swamigal v. State of Tamil Nadu and (2005) 8 SCC 21, titled State of U.P. through CBI v.Amarmani Tripathi, observed as under:-

"26. As discussed earlier, insofar as the "flight risk" and "tampering with evidence" are concerned, the High Court held in favour of the appellant by holding that the appellant is not a "flight risk" i.e. "no possibility of his abscondence". The High Court rightly held that by issuing certain directions like "surrender of passport", "issuance of look out notice", "flight risk" can be secured. So far as "tampering with evidence" is concerned, the High Court rightly held that the documents relating to the case are in the custody of the prosecuting agency, Government of India and the Court and there is no chance of the appellant tampering with evidence.

28. So far as the allegation of possibility of influencing the witnesses, the High Court referred to the arguments of the learned Solicitor General which is said to have been a part of a "sealed cover" that two material witnesses are alleged to have been approached not to disclose any information regarding the appellant and his son and the High Court observed that the possibility of influencing the witnesses by the appellant cannot be ruled out. The relevant portion of the impugned judgment of the High Court in para (72) reads as under:

"72. As argued by learned Solicitor General, (which is part of 'Sealed Cover', two material witnesses (accused) have been approached for not to disclose any information regarding the petitioner and his son (co-accused). This court cannot dispute the fact that petitioner has been a strong Finance Minister and Home Minister and presently, Member of Indian Parliament. He is respectable member of the Bar Association of Supreme Court of India. He has long standing in BAR as a Senior Advocate. He has deep root in the Indian Society and may be some connection in abroad. But, the fact that he will not influence the witnesses directly or indirectly, cannot be ruled out in view of above facts. Moreover, the investigation is at advance stage, therefore, this Court is not inclined to grant bail."

29. FIR was registered by the CBI on 15.05.2017. The appellant was granted interim protection on 31.05.2018 till 20.08.2019. Till the date, there has been no allegation regarding influencing of any witness by the appellant or his men directly or indirectly. In the number of remand applications, there was no whisper that any material witness has been approached not to disclose information about the appellant and his son. It appears that only at the time of opposing the bail and in the counter affidavit filed by the CBI before the High Court, the averments were made that "....the appellant is trying to influence the witnesses and if enlarged on bail, would further pressurize the witnesses....". CBI has no direct evidence against the appellant regarding the allegation of appellant directly or indirectly influencing the witnesses. As rightly contended by the learned Senior counsel for the appellant, no material particulars were produced before the High Court as to when and how those two material witnesses were approached. There are no details as to the form of approach of those two witnesses either SMS, email, letter or telephonic calls and the persons who have approached the material witnesses. Details are also not available as to when, where and how those witnesses were approached.

31. It is to be pointed out that the respondent - CBI has filed remand applications seeking remand of the appellant on various dates viz. 22.08.2019, 26.08.2019, 30.08.2019, 02.09.2019, 05.09.2019 and 19.09.2019 etc. In these applications, there were no allegations that the appellant was trying to influence the witnesses and that any material witnesses (accused) have been approached not to disclose information about the appellant and his son. In the absence of any contemporaneous materials, no weight could be attached to the allegation that the appellant has been influencing the witnesses by approaching the witnesses. The conclusion of the learned Single Judge "...that it cannot be ruled out that the petitioner will not influence the witnesses directly or indirectly....." is not substantiated by any materials and is only a generalised apprehension and appears to be speculative. Mere averments that the appellant approached the witnesses and the assertion that the appellant would further pressurize the witnesses, without any material basis cannot be the reason to deny regular bail to the appellant; more so, when the appellant has been in custody for nearly two months, co-operated with the investigating agency and the charge sheet is also filed.

32. The appellant is not a "flight risk" and in view of the conditions imposed, there is no possibility of his abscondence from the trial. Statement of the prosecution that the appellant has influenced the witnesses and there is likelihood of his further influencing the witnesses cannot be the ground to deny bail to the appellant particularly, when there is no such whisper in the six remand applications filed by the prosecution. The charge sheet has been filed against the appellant and other co-accused on 18.10.2019. The appellant is in custody from 21.08.2019 for about two months. The co-accused were already granted bail. The appellant is said to be aged 74 years and is also said to be suffering from age related health problems. Considering the above factors and the facts and circumstances of the case, we are of the view that the appellant is entitled to be granted bail."[Para No.5.v.6]

If accused is able to raise a probable defence which creates doubts about the existence of a legally enforceable debt or liability, the prosecution u/s.138 of N.I. Act can fail

With regard to the facts in the present case, we can also refer to the following observations in M.M.T.C. Ltd. and Anr. v. Medchl Chemicals & Pharma (P) Ltd., (2002) 1 SCC 234 (Para. 19):

"... The authority shows that even when the cheque is dishonoured by reason of stop payment instruction, by virtue of Section 139 the Court has to presume that the cheque was received by the holder for the discharge in whole or in part, of any debt or liability. Of course this is a rebuttable presumption. The accused can thus show that the `stop payment' instructions were not issued because of insufficiency or paucity of funds. If the accused shows that in his account there was sufficient funds to clear the amount of the cheque at the time of presentation of the cheque for encashment at the drawer bank and that the stop payment notice had been issued because of other valid causes including that there was no existing debt or liability at the time of presentation of cheque for encashment, then offence under Section 138 would not be made out. The important thing is that the burden of so proving would be on the accused. ..."

(emphasis supplied)[Para No.13]

    In light of these extracts, we are in agreement with the respondent-claimant that the presumption mandated by Section 139 of the Act does indeed include the existence of a legally enforceable debt or liability. To that extent, the impugned observations in Krishna Janardhan Bhat (supra) may not be correct. However, this does not in any way cast doubt on the correctness of the decision in that case since it was based on the specific facts and circumstances therein. As noted in the citations, this is of course in the nature of a rebuttable presumption and it is open to the accused to raise a defence wherein the existence of a legally enforceable debt or liability can be contested. However, there can be no doubt that there is an initial presumption which favours the complainant. Section 139 of the Act is an example of a reverse onus clause that has been included in furtherance of the legislative objective of improving the credibility of negotiable instruments. While Section 138 of the Act specifies a strong criminal remedy in relation to the dishonour of cheques, the rebuttable presumption under Section 139 is a device to prevent undue delay in the course of litigation. However, it must be remembered that the offence made punishable by Section 138 can be better described as a regulatory offence since the bouncing of a cheque is largely in the nature of a civil wrong whose impact is usually confined to the private parties involved in commercial transactions. In such a scenario, the test of proportionality should guide the construction and interpretation of reverse onus clauses and the accused/defendant cannot be expected to discharge an unduly high standard or proof. In the absence of compelling justifications, reverse onus clauses usually impose an evidentiary burden and not a persuasive burden. Keeping this in view, it is a settled position that when an accused has to rebut the presumption under Section 139, the standard of proof for doing so is that of `preponderance of probabilities'. Therefore, if the accused is able to raise a probable defence which creates doubts about the existence of a legally enforceable debt or liability, the prosecution can fail. As clarified in the citations, the accused can rely on the materials submitted by the complainant in order to raise such a defence and it is conceivable that in some cases the accused may not need to adduce evidence of his/her own.[Para No.14]

Adverse possession; even if not pleaded, can be presumed when Plaintiff claims the original possession of defendant was permissive, but fails to prove it

A decree of possession does not automatically follow a decree of declaration of title and ownership over property. It is well settled that, where a Plaintiff wants to establish that the Defendant’s original possession was permissive, it is for the Plaintiff to prove this allegation and if he fails to do so, it may be presumed that possession was adverse, unless there is evidence to the contrary.[Para No.46]

    The Appellant-Defendant has in his written statement in the suit, denied the title and ownership of the Respondent- Plaintiff to the suit property. The Appellant-Defendant has asserted that the Appellant-Defendant is the owner of the suit property and has been in possession and in occupation of the suit premises as owner from the very inception.[Para No.47]

    In our considered opinion, the High Court erred in law in proceeding to allow possession to the Respondent-Plaintiff on the ground that the Appellant-Defendant had not taken the defence of adverse possession, ignoring the well established principle that the Plaintiff’s claim to reliefs is to be decided on the strength of the Plaintiff’s case and not the weakness, if any, in the opponent’s case, as propounded by the Privy Council in Baba Kartar Singh v. Dayal Das reported in AIR 1939 PC 201.[Para No.48]

    From the pleadings filed by the Appellant-Defendant, it is patently clear that the Appellant-Defendant claimed the right of ownership of the suit property on the basis of a deed of conveyance, executed over 75 years ago. The Appellant- Defendant has claimed continuous possession since the year 1966 on the strength of a deed of release executed by his father. In other words, the Appellant-Defendant has claimed to be in possession of the suit premises, as owner, for almost 28 years prior to the institution of suit.[Para No.49]

    In the facts and circumstances of this case, where the Appellant-Defendant was owner of only a portion of the suit property but has admittedly been in possession of the entire suit property, and the Appellant-Defendant has, in his written statement, claimed to be in continuous possession for years as owner, the defence of the Appellant in his written statement was, in effect and substance, of adverse possession even though ownership by adverse possession had not been pleaded in so many words. It is, however not necessary for this Court to examine the question of whether the Appellant-Defendant was entitled to claim title by adverse possession or not.[Para No.50]

Notice returned with endorsement 'house locked', 'shop closed', "addressee not available' is presumed to be dully served

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. The requirements under proviso (b) of Section 138 stands complied, if notice is sent in the prescribed manner. However, the drawer is at liberty to rebut this presumption.[Para No.13]

    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 justifed 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"[Para No.14]

    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. Though in process of interpretation right of an honest lender cannot be defeated as has happened in this case. From the perusal of relevant sections it is clear that generally there is no bar under the N.I. Act to send a reminder notice to the drawer of the cheque and usually such notice cannot be construed as an admission of non-service of the first notice by the appellant as has happened in this case.[Para No.15]

Facts stated in plaint has to be presume correct while deciding application under Order 7 Rule 11

In a nut shell, it can be said that for deciding whether the plaint discloses cause of action or not, the court has to see only the averments in the plaint and the accompanying documents relied upon in the plaint and the facts elicited from the plaintiff by examining him under Order 10 of the Code of Civil Procedure. For the purpose of deciding the application under Order 7 Rule 11 for rejecting the plaint, the court has also to presume the facts stated in the plaint as correct.

    In the instant matter,the court below rejected the application moved by the appellant under Order 7 Rule 11 C.P.C. read with section 151 C.P.C. with the following observations:-

"जहाँ तक प्रथम आपत्ति का प्रश्न है आदेश-7 नियम-11 में यह प्रावधान है कि जहाँ वाद पत्र हेतुक प्रकट नहीं करता है वहां वाद पत्र नामंजूर कर दिया जायेगा | वादी द्वारा प्रस्तुत दावे के अवलोकन से यह स्पष्ट है कि वाद पत्र कागज संख्या ए -3 के पैरा 49 में वादी का वाद कारण को करमवार अंकित किया है जिस पर प्रतिवादिनी का कथन है कि वह बिना आधार के और पूर्णतया असत्य है | वादी द्वारा प्रस्तुत वाद कारण सत्य है अथवा असत्य है यह साक्षयोपरांत ही तय हो सकता है | धारा 7 नियम 11 के अधीन वाद पत्र की अपेक्षा केवल वाद हेतुक प्रकट करना है न की इस स्तर पर सत्यता अथवा असत्यता परिलक्षित होनी है | चुकिं वाद पत्र वाद हेतुक प्रकट करता है ऐसे स्थिति में आदेश-7 नियम-11 के अधीन वाद पत्र नामंजूर किये जाने का कोई औचित्य आधार नहीं है |"

    Keeping in view the observations made by the court below while rejecting the application of the appellant under Order 7 Rule 11 C.P.C. read with section 151 C.P.C. as well as the settled legal proposition of law on the point in issue that the plaint filed by the plaintiff can only be rejected when the same is barred by any law or no cause of action has accrued to the plaintiff for filing the same.