A. RAMA RAO AND ORS.versusRAGHUNATH PATNAIK AND ORS.

                         A. RAMA RAO AND ORS.                                      A
                                 v.
                    RAGHUNA TH PA TNAIK AND ORS.

                               APRIL 24, 2007

              [DR.ARiflTPASAYAT ANDS.H. KAPADIA,JJ.]                               B

       Notice-unregistered agreement for sale of suit property between
 plaintiff and one defendant-Plaintiff came to know that defendant entering
 into agreement with other two defendants in respect of the same property- C
 Notice by the plaintiff by post to all the defendants regarding subsistence of
 earlier agreement-Refusal to accept-Suit for specific performcnce of earlier
 agreement-Absence of specific plea regarding dispatch of the notice by post
 and/or its refusal-Courts below passing decree of specific performance
 holding that in view of the refusal, knowledge about earlier agreement to the D
 defendants could be inferred-On appeal, held: The finding regarding refusal
 to accept the notice is vague-Several pleas in respect of the issue had not
been considered by Courts below-Direction to High Court to record its
finding on the question of service of notice and on the effect of the absence ·
of specific plea regarding dispatch of notice or its refusal-The findings to
be placed before Supreme Court.                                                 E
       Respondent No. 1-Plaintiff filed a suit for specific performance of
contract against the appellant defendant no.1. It was alleged therein that there
was unregistered agreement for alienation of the suit property in favour of
the plaintiff by defendant No. 1. When the plaintiff came to know that despite
the earlier agreement, defendant No.1 wanted to sell the suit property to          F
defendant Nos. 2 and 3, he sent notice to the defendants by post intimating
about the subsistence of the earlier agreement. The notices returned unserved
on their refusal. Trial Court decreed the suit and single Judge of High Court
dismissed the appeal thereagainst holding that once there was refusal to
receive the notice, it is presumed that the defendants had notice of the earlier   G
agreement. In Writ appeal, Division Bench of High Court also concurred with
the finding of the courts below.

     In appeal to this court, appellants contended that in absence of
examination of postman it was not permissible to draw an inference of refusal;     H
                                      527
                                                             ..;.;.,,._
    528                      SUPREME COURT REPORTS                        [2007] 5 S.C.R.

A and that there was no specific plea regarding dispatch of notice by post and/             J

    or its refusal.

         Adjourning the matter, with direction to High Court to place its finding
    on certain questions before this court, the Court.

B         HELD: 1. 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 Single Judge. But it has been brought on record that effect of
    a decision of this Court had not been considered though specifically argued.
    The pleas that when the defendant No.I on oath stated that h~ di<! not receive
C   the notice allegedly sent by post, the same would prevail over the postal
    remarks that it was "refused" unless the postman was examined; and that
    there was no specific averment regarding sending the notice by post or its
    refusal, had not been considered. [Paras 8 and 9) [530-G, H; 531-A)

D         2. High Court is directed 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 after granting
    opportunity to the parties to place their respective stand. [Para 11) [531-D-E)
                                                                                            A
                                                                                                '
          CIVIL APPELLATE JURISDICTION: Civil Appeal No. 5130 of2005.
E
          From the Judgment and Order dated 17.10.2001 of the High Court of
    Orissa in A.H.O. No. 96of1995.

          Vinoo Bhagat and Rut••ik Panda for the Appellants.

          R.L. Khurana, M.C. Dhingra and Sanjay Jain for the Respondents.
F
          ·The Judgment of the Court was delivered by

          DR. ARIJlT PASA VAT, J. 1. Challenge in this appeal is to the judgment
    rendered by a Division Bench of the Orissa High Court dismissing the Letters
G   Patent Appeal filed by the appellants.

          2. A brief reference to the factual aspects would be necessary in view                ~•
    of the order proposed to be passed.

         3. The suit which forms the subject matter of controversy in the presen't
H   appeal was one for specific performance of contract filed by respondent No. I-
           A. RAMARAOv. RAGHUNATHPATNAIK [PASAYAT,J.]                     529
Raghu Nath Patnaik as the sole plaintiff.                                       A
        4. In the suit it was contended that on 7.11.1983 defendant No.I 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
 ofRs.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 B
 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. I and requesting them not to enter into any sale transaction. The notice
 issued to defendant No. I returned unserved while the notices issued to C
 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. I 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 D
 below took the view that once there was refusal by defendant No. I to receive
the notice, it has to be held that he had notice of the earlier agreement. The
trial Court decreed the Suit 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 E
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 F
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 G
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.
                                                                                H
    530                     SUPREME COURT REPORTS                    [2007] 5 S.C.R.

A         5. The only observation so far as that issue is concerned is to the
    following effect.

                "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
B           submissions, we agree with the findings arrived at by the court below
            and the Hon'ble Single Judge, that Ext.-! was a valid document and
            was duly executed by the defendant No. I and that a decree to
            specifically perform the terms of the agreement (Ext. I) 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
c           any proceeding and the pleading regarding appellant's readiness and
            willingness is adequate, as the same has not been specifically traversed
            in the written statement."

           6. In support of the appeal, learned counsel for the appellants submitted
D   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
E   plaintiff's claim.

           7. 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
F   8.4.1984 as claimed by the appellants. Since the suit was tiled on 5.4.1984 a
    specific stand regarding the refusal has not been taken.

          8. 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
G   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 specifically
    argued.

H         9. It appears that stand was that •vhen the defendant No. I on oath
           A. RAMARAOv. RAGHUNATHPATNAIK[PASAYAT, J.]                         531
stated that he did not receive the notice allegedly sent by post, the same           A
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      B
have been brought in by way of an amendment and/or that the alleged date
of refusal was 8.4.1984.

       10. Learned counsel for the appellants has produced before us original
paper books filed before the High Court which show the endorsement that
their refusal was 8.4.1984.
                                                                                     c
       11. 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   D
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.

KKT.                                        Appeal Adjourned with directions.        E