Service of notices by registered post

Published by The Daily Star,  August 20, 2019 ( Link Here)

This week Your Advocate is Barrister Omar Khan Joy, Advocate, Supreme Court of Bangladesh. He is the head of the chambers of a renowned law firm, namely, ‘Legal Counsel’, which has expertise mainly in commercial law, corporate law, family law, employment and labor law, land law, banking law, constitutional law, criminal law, IPR and in conducting litigations before courts of different hierarchies. Our civil and criminal law experts from reputed law chambers will provide the legal summary advice.  Barrister Omar Khan Joy

Query

I am a tenant of a commercial plot in Tejgaon, I have recently received a notice of termination of my lease from my landlord through registered post. However, upon reading the notice, I found out that the notice was issued one month ago but I received it just recently as I changed my office address and it took a while for the people at my previous address to deliver it to me. Hence, I would like to know about the law relating to the service of such notices.

Zafar Ahmed, Dhaka.

Response

Thank you for your important query. Issues related to postal delivery are very common but it is merely analysed as to the importance of the delivery and receipt of notices, letters, etc. and their impact on crucial legal matters. Hence, in order to answer your queries, it is necessary to look into the legal provisions regarding the said matter. As per Section 27 of the General Clauses Act 1897, “[w]here any [Act of Parliament] or Regulation made after the commencement of this Act authorises 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.”

Thus, the law above delineates that in order for a service [of notice, letter, etc.] to be effective, proper addressing, pre-payment and postal by registered post must have taken place, and it shall be deemed to have been effected at a time expected to have been delivered in the ordinary course of posting. However, the question as to determining the time of delivery is to be established. Therefore, section 27 is a presumption and this presumption under section 27 is rebuttable and the burden of proof lies on the addressee (in the given scenario, you) of the notice. Note that this legal provision does not exclude evidence in rebuttal of the presumption.

Furthermore, as per section 114 of the Evidence Act 1872, “the court may 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.” Hence, in the absence of evidence in rebuttal, the fact is proved and no other evidence is necessary to prove it. You may, however, prove with burden of proof lying on you, that it never reached you. If you deny its receipt, or there is evidence in rebuttal, the Court may even then not accept it as being sufficient to rebut the strong presumption. As per Nurul Islam (Md) v Md Ali Hossain Miah being dead his heir Amir Hossain 50 DLR (AD)114, notice sent to the tenant by post at the address of the suit premises having been returned unserved with the remark of the postal authority ‘left’ was presumed to be good service. As per Dr. Jamshed Bakht v Md Kamaluddin 1981 BLD 97, mere denial of the tenant that he did receive the notice or that the notice was not tendered to him is not sufficient to rebut the presumption. Furthermore, the Supreme Court has held that where the landlord sent a notice to the tenant to terminate the tenancy, through registered post to the correct address, he must be held to have complied with the statutory requirement and the notice will be valid even if it is returned unserved. However, note that mere dispatch of notice does not amount to ‘giving’ of notice. When a notice is sent by registered post it should be delivered personally to the lessee or to one of his family or servants.

Where a postal notice is returned with the endorsement ‘refused’ on it, there are a number of authorities in favour of raising a presumption and holding that a registered cover had been refused by the addressee, and this presumption should normally be drawn. Furthermore, section 27 would apply to the service by hanging and affixation, provided it is established that the relevant place was the ordinary place of residence or last known address of the opposite party. On the other hand, if a document is properly addressed, pre-paid and sent by registered post, a presumption of due and proper service could be raised by the landlord.

Although, if the notice reached your address in the proper time, it is supposed to have been served, it must be borne in mind that this section does not lay down any inflexible or conclusive presumption as to service of notice by registered post. What it states is that the court might presume service to have taken place within the ordinary course of post, if those circumstances were present, unless the contrary was proved.

The above is subject to any other contrary provision in the lease agreement, e.g. if the lease agreement states that the notices must be given in person or by email only, then registered post may be not the appropriate method of service.

I hope the provided information shall be able to aid you in finding a solution to your problem.