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TMI Blog1995 (4) TMI 176X X X X Extracts X X X X X X X X Extracts X X X X ..... nder registered post. 3. It is the case of the applicants that no notice of hearing on 13-2-1991 was received by them. Nor did they receive the copy of the Order as stated above. Later on, the applicant/appellant Firm wrote a letter dated 23-8-1993 to the Assistant Registrar, CEGAT, E.R.B., Calcutta stating that no notice of hearing in the above-mentioned appeal was received by them, which later on was registered as Miscellaneous Application bearing No. 168/93. The case of the applicants is that no notice was received by them with respect to the date of hearing although it was alleged to have been sent to them under registered post. They also stated that on enquiry from the Office they came to know for the first time on 20-8-1993 about the dismissal of the case. 3A. It was also stated that they have been corresponding with the Director General of Post Offices as to why letters addressed to them during the period - 1991-92 - were not delivered to them. In this respect they have filed an affidavit and therefore, they have made a prayer for setting aside the order of dismissal of the above-captioned appeal. 4. Learned Advocate, Shri Ashok Gupta contended before us th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lant Firm by the Registry under registered post. Under Section 114 of the Indian Evidence Act there is a presumption that a notice despatched under registered post is received by the appellant(s). The Outward Register of this Tribunal also indicates that such a notice was sent to the appellant/applicant Firm under registered post. Therefore, such a presumption arising by virtue of Section 114 of the Indian Evidence Act is there against the appellant/applicant Company. 9. But the learned Advocate, Shri Gupta submitted that the presumption that notice has been duly served upon the appellant/applicant Firm is a rebuttable presumption and he stated that if the applicant/appellant Firm denies receipt of the notice in question, that is sufficient to rebut the above-said presumption. In this connection, he referred to the following decisions reported in - (i) 1985 (22) E.L.T. 212 (Tribunal) and (ii) AIR 1976 Del. 111. 10. It is no doubt true that this is a rebuttal presumption. But whether the presumption is discharged by the applicant/appellant Firm in this case is a question which has to be determined in the light of the circumstances as well as the evidence availabl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e party concerned the presumption under Section 114 of the Indian Evidence Act is not rebutted. In the decision reported in AIR 1990 (77) 1215 in the case of Anil Kumar v. Nanak Chandra Verma their Lordships at paras 2 to 4 held as follows :- "2. The question considered in both the decisions was to the statement on oath by the tenant denying the tender and refusal to accept delivery. It was held that the bare statement of the tenant was sufficient to rebut the presumption of service. In our opinion there could be no hard and fast rule on that aspect. Unchallenged testimony of a tenant in certain cases may be sufficient to rebut the presumption but if the testimony of the tenant itself is inherently unreliable, the position may be different. It is always a question of fact in each case whether there was sufficient evidence from the tenant to discharge the initial burden. 3. In the instant case the trial Court has considered the evidence of the tenant and was not impressed with it. It is indeed impossible to believe that the tenant having the business premises at Ghaziabad would have left it in the hands of the servant and remained at Delhi for a long period from 19-12-19 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion arising out of Section 114 of the Indian Evidence Act showing that the applicant/appellant Firm had not received the letter dated 7-1-1991 sent by the Registry of this office under registered post intimating them the hearing date fixed on 13-2-1991. On the contrary, the above circumstances only strengthen the presumption under Section 114 of the Indian Evidence Act. 13. Learned Advocate has also relied upon the decision reported in AIR 1987 SC 1353 rendered by the Hon'ble Supreme Court in the case of Mst. Katiji. Relying on the above decision learned Advocate submitted that a litigant does not benefit by any delay in coming to Court and furthermore, the refusal to condone delay can result in a meritorious matter being thrown out at the very threshold and cause of justice being defeated. He also relied on the observations of the Hon'ble Supreme Court to the effect that as against this, when delay is condoned the highest that can happen is that a cause would be decided on merits after hearing the parties. That particular decision is not applicable to the facts of this case. In that particular case, the Government filed an appeal and there was four days' delay i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ters enclosing the hearing notice as also the subsequent Order of Dismissal sent from this Registry under registered post to them. Such a submission made by the applicants in the instant case, is not at all substantiated by the records filed by them and therefore, the presumption arising out of Section 114 of the Indian Evidence Act stands unrebutted. 16. Learned Advocate has made a fervent plea that if such presumptions are allowed to stand the position of the citizens will be very unsafe. Such an argument will be defeating the very provision of Section 114 of Indian Evidence Act. On the contrary, wherever it is denied by the party concerned if it is held otherwise, that would create an anomalous position. The presumptions arising out of Indian Evidence Act as held by the Supreme Court can be rebutted only if the evidence is produced and it has to be decided on the facts and circumstances available in each particular case. Having bestowed our attention to the facts and circumstances in the instant case as discussed above, we are of opinion that the appellant/applicant Firm has not rebutted the same and therefore, the presumption under Section 114 of I.E.A. that they have rec ..... X X X X Extracts X X X X X X X X Extracts X X X X
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