SAMERAWICKRAME, J.—Savarimuttu v. Edwin de Siva
1971 Present: Samerawiokrame, J., and Wljayatllake, J.M.SAVARIMUTTU, Appellant, and EDWIN DE SILVA, RespondentS. C. 448/67—D. C. Negombo, 83/R.E.
Evidence Ordinance—Sections IS and 114 (e)—Registered letter—Letter returned byPostal Authorities with endorsement ** Refused ”—Presumption that addresseerefused to receive it—Landlord and tenant—Notice to quit—Proof.
In plaintiff’s action in ejectment against his tenant, the question arose whethernotice to quit was given to the defendant. Plaintiff’s Proctor gave evidencethat he sent the notice to quit by registered letter and that the letter wasreturned to him by the Postal Authorities with the endorsement “ RefusedThe defendant, in his evidence, did not speak to facts which might have shownthat the letter was refused otherwise than by him or at his instance.
Held, that, having regard to sections 16 and 114 (e) of the EvidenceOrdinance, the facts proved gave rise to the presumption that the notice toquit was served on the defendant.
A.PPfiAI from a judgment of the District Court, Negombo.
C. Ranganathan, Q.C., with CsChellappah, for the plaintiff-appellant.
Izadeen Mohamed, Q.C., with M. L. de Silva, for the defendant-respondent.
Cur. adv. vult.
October 27, 1971. Samebawickrame, J.—
Tho learned District Judge accepted the plaintiff’s position that thedefendant had been in arrears of rent from November 1961 and grantedhim a money decree on that footing, yet he dismissed his claim forejectment of the defendant on the ground that no valid notice to quithad been given.
He held that the notice to quit relied on was not valid because theperiod of notice ended on the fust day of a month. In Haniffa v. Sella-mutthu1—70 N. L. R. 200—a Bench of two Judges held that a notice toquit on or before the 1st December, 1964, was valid and declined to follow,earlier decisions which had held otherwise. The judgment in Haniffa v.Sellamutthu (supra) had not been given at the date of the judgment of thelearned District Judge in the present action.
The learned District Judge also held that notice had not been servedon the defendant. The plaintiff had instructed Proctor Jayatilake tosend a notice to. quit to the defendant. Proctor Jayatilake gave evidenceand said that he sent the notice to quit to the defendant by a letterproperly addressed to him by registered post. The letter was returned
1 (1907) 70 N. L. B. 200.
SAMERAWICKRAME, J.—Savarimultu v. Edwin de Silva
to him by the Postal Authorities with the endorsement “ refusedNo question was put to Proctor Jayatilake in cross-examination. Abagainst his evidence there was one question put to the defendant at theend of the examination-in-chief and his answer to it. They were :—
“ Q. Did you receive any letter from the plaintiff requesting you tovacate and quit the premises from any date ?
A. No. ”
The defendant neither stated that he did not refuse to accept theregistered letter nor that he did not instruct anyone else to do so nor didhe seek to speak to facts which might have shown that the letter wasrefused otherwise than by him or at his instance. In the circumstanceshis evidence can be regarded as no more than an assertion that as heneither accepted nor opened the letter, no notice to quit was given to him.I do not think, however, that a party who has refused to accept a letterin such circumstances can be heard to plead want of knowledge of itscontents. Such knowledge must be imputed to him. Sarkar (10thEdition) at page 164, states :—“ A person refusing a registered lettercannot afterwards plead ignorance of its contents. ” Learned counselfor the respondent stressed that there was no proof that the endorsementhad been made1 by a Post Office employee. The unchallenged evidenceof Proctor Jayatilake was that the letter bore the endorsement when itwas returned to him and having regard to the known practice of thePostal Authorities to endorse on a letter the reason for its non-deliverywhen a letter is returned it may be presumed that the endorsement wasmade by a Postal employee in the ordinary course of business.
Having regard to Sections 16 and 114 illustration (e) of the EvidenceOrdinance it appears to me that the facts proved give rise to thepresumption that the notice to quit was served on the defendant. Moniron Evidence (4th Edition) at page 685, states :—“ If a letter properlj-addressed and posted is returned with the endorsement ‘ refused thepresumption is that it was presented to the addressee and that he refusedto receive it;■ Accordingly where it was proved that a notice to
quit was sent by a registered letter and was returned with the endorsement“ refused ” it was held that there was sufficient service of the notice toquit—vide Jogendro v. Dwarka 1—15 Calcutta 681—and Bapayya v.Venkataratnam2—A. I. R. (1953) Madras 884. Such a presumption willnot of course be drawn in every case in which there is evidence of thereturn of a registered letter with the endorsement “refused”. TheCourt will consider, in each case, the facts proved relating to the postingof the letter, the denial of receipt, even the diligence or want of itcommonly shown by postal employees and all other relevant mattersand decide whether in the circumstances it will or will not draw the■ presumption. In this case, apart from the rather inconclusive answerof . the defendant to a single question, there was nothing that seemed toweigh against the drawing of the presumption. *
115 Calcutta 681.
* A. I. R. (1953) Madras 881.
SIRIMANE, J.— Wanigaratne v. Palapitiya
I allow the appeal, set aside the dismissal of the plaintiff’s claim forejeotment and grant the prayer for the ejectment of the defendant, hisservants and agents from the premises. The plaintiff-appellant willalso be entitled to a sum of Bs. 643 and continuing damages at Be. 14per month from 1st March, 1965, until he is restored to and quieted inpossession of the premises as well as to costs in both CourtB.
Wuayatilake, J.—I agree.
M. SAVARIMUTTU, Appellant, and EDWIN DE SILVA, Respondent