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Jijar Singh Vs. Mohinder Kaur - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtDelhi High Court
Decided On
Case NumberCivil Revn. No. 508 of 1977
Judge
Reported inAIR1979Delhi245; 16(1979)DLT146; 1979RLR563
ActsDelhi Rent Control Act, 1958 - Sections 25-B; Code of Civil Procedure (CPC), 1908 - Order 6, Rule 15
AppellantJijar Singh
RespondentMohinder Kaur
Appellant Advocate L. Bhatia, Adv
Respondent Advocate Anoop Singh, Adv.
Excerpt:
.....the leave was sought to contest by the tenant - it was found that affidavit should be filed by the tenant showing the facts for seeking the leave - it was held that contents of the affidavit would be verified as per order 6, rule 15 of the civil procedure code, 1908 - section 13: [altamas kabir & cyriac joseph,jj] custody of child - welfare of child vis--vis comity of courts - the minor girl child of 3 1/2 years was brought to india by her mother. the minor girl was a citizen of u.k. being born in u.k. her parents had set up their matrimonial home in u.k. and had acquired status of permanent residents of u.k. the child with her mother was supposed to return to u.k. but the mother cancelled her tickets and remained behind in india. the husband thereupon started procededings before the..........landlord it is argued that the affidavit itself must contain the averments which are sworn to be true by the tenant.10. we think that the substance of the law is as follows: the requirement to state the truth may flow either from the provisions of a law or because of an oath or affirmation which requires the statement to be true. it would be useful to refer to the relevant part of section 191 i. p. c. in this connection. it reads as follows:'whoever, being legally bound by an oath or, by an express provision of law to state the truth ......makes any statement which is false'.the offence of giving false evidence is punishable under section 193, l p. c. o. vi r. 16, civil p. c., is an example of an express provision of law to state the truth. it relates to the verification of a pleading......
Judgment:
ORDER

1. The question referred to the larger Bench is briefly whether the affidavit required to be filed under Section 25B read with the Third Sch. of the Delhi Rent Control Act, 1958 (the Act), as amended, shall itself contain the grounds and the facts on the basis of which leave to contest the application for eviction is sought or whether the said grounds and facts having been recited in the accompanying application the affidavit may only refer to the statements made in the application and say that these statements are true to the knowledge of the deponent. The question arises in this way.

2. The respondent landlady filed an application for the eviction of the appellant tenant under the summary procedure laid down in Chapter Iiia of the Act which includes Section 25B. The tenant was served with the summons in the form prescribed by the Third Sch. He made an application for leave to contest the application for eviction and swore an affidavit in which the statements made in the accompanying application were affirmed to be true. The Addl. Controller referred to the following words in the affidavit:

'(1) That the accompanying application under Section 25B sub-section (4) of the Delhi Rent Control Act has been drafted on my instructions and same has been read over to me and all the facts stated in sub paras. (a) to (p) are true and correct.

(2) That the facts disclosed in paras (a) to (p) of the accompanying application be read as part of this affidavit, these are not reproduced herein for reasons of brevity.

(3) That the facts stated in paras referred to above i.e. (a) to (p) of the accompanying application are true and correct'.

3. The learned Addl. Controller expressed the following opinion on this affidavit:

'The petition under Section 25B or any part thereof cannot be read as part of the affidavit filed by the respondent unless these parts of the petition are reproduced in the affidavit and the affidavit before the Oath Commissioner is attested. The affidavit is solemn affirmation before the Oath Commissioner. The Oath Commissioner on the solemn affirmation being made before him certifies that the deponent has solemnly affirmed before him that the contents of the affidavit which has been read over and explained to him are true to his knowledge. What is affirmed before the Oath Commissioner and so certified by him is the contents of the affidavit. The contents of the petition are not read over and explained to the petitioner and thereforee, has not been affirmed to be true and correct before the Oath Commissioner. thereforee, merely saying that the facts disclosed in pare Nos. (a) to (p) of the application be read as part of this affidavit is not sufficient to convert the petition under Section 25B into an affidavit. The affidavit as disclosed above does not disclose any fact on which the leave to contest the petition for eviction can be granted. Under these circumstances, I am constrained to dismiss the petition under Section 25B of the D. R. C. Act'.

4. In considering this revision petition against the above order, the material considerations are that the tenant is served with the summons in the form of Third Schedule which informs him what he has to do and if he complies with the direction given, to him in the said summons, then he would be entitled to seek the benefit of the leave to contest the application for eviction on compliance of S. 25B, sub-sections (4) and (5).

5. The last para of the summons served on the tenant informs him as follows:

'Leave to appear and contest the application may be obtained on an application to the Controller supported by an affidavit as is referred to in sub-section (5) of S. 25B'.

The Third Schedule in which the form of the summons is set out is a part of the Act. It is also expressly referred to in sub-section (4) of Section 25B. The two provisions have to be read together and an integrated meaning of the two has to be made out. It is true that subsections (4) and (5) of Section 25B themselves do not refer to any application to be made by the tenant for the grant of leave to defend. It is, however, settled law that a prayer has to be made to the court only by way of an application. It cannot be made merely by swearing an affidavit. An affidavit is merely a statement of facts and cannot contain prayer .On the other hand application can contain statement of facts and also the prayer for the relief to be granted to the applicant. We are of the view, thereforee, that by reading Section 25B with the Third Sch the procedure prescribed for compliance by the tenant is as follows: Firstly, he has to make an application to seek the leave of the court to contest the application for eviction field against him by the landlord, and secondly, this application has to be supported by an affidavit as is referred to in sub-section (5) of Section 25B.

6. Sub-section (5) of Section 25B of the Act is as follows:

'The Controller shall give to the tenant leave to contest the application if the affidavit filed by the tenant discloses such facts as would disentitle the landlord from obtaining an order for the recovery of possession of the premises on the ground specified in clause (e) of the proviso to sub-section (1) of Section 14, or under S. 14A.'

It would be also worthwhile to read sub-section (4) of Section 25B in this connection, which is as follows:

'The tenant on whom the summons is duly served (whether in the ordinary way or by registered post) in the form specified in the Third Schedule shall not contest the prayer for eviction from the premises unless he files an affidavit stating the grounds on which he seeks to contest the application for eviction and obtains leave from the Controller as hereinafter provided; and in default of his appearance in pursuance of the summons or his obtaining such leave, the statement made by the landlord in the application for eviction shall be deemed to be admitted by the tenant and the applicant shall be entitled to an order for eviction on the ground aforesaid'.

7. At the time the tenant is served with the summons he is required to comply with the directions stated therein. He cannot be blamed, thereforee, if the steps which he takes are strictly in accordance with the summons rather than in accordance with some interpretation put upon sub-sections (4) and (5) of Section 25B without reading the directions in the summons in the form prescribed in the Third Schedule. The period during which the tenant has to make an application is a short one. He does not have too much time to think. The tenant is under pressure because he is threatened with eviction from the premises of the landlord. In these circumstances, the law should require minimum compliance by the tenant with the requirements of the Third Schedule read with Section 25B rather than some standard of excellence over and above the minimum requirements of the law.

8. The minimum requirements are that the application for leave to contest must be supported by an affidavit and that the affidavit has to be as is referred to in sub-section (5) of Section 25B. Sub-section (4) also may be read with subsection (5). What are the requirements of these three provisions read together?

9. On behalf of the appellant it was submitted that the requirements are fulfillled if the affidavit sworn by the tenant refers to the averments made in the application and affirms them to be true. On behalf of the respondent landlord it is argued that the affidavit itself must contain the averments which are sworn to be true by the tenant.

10. We think that the substance of the law is as follows: The requirement to state the truth may flow either from the provisions of a law or because of an oath or affirmation which requires the statement to be true. It would be useful to refer to the relevant part of Section 191 I. P. C. in this connection. It reads as follows:

'Whoever, being legally bound by an oath or, by an express provision of law to state the truth ......makes any statement which is false'.

The offence of giving false evidence is punishable under Section 193, L P. C. O. Vi R. 16, Civil P. C., is an example of an express provision of law to state the truth. It relates to the verification of a pleading. It reads as follows:

'(1) Save as otherwise provided by any law for the time being in force, every pleading shall be verified at the foot by the party or by one of the parties pleading or by some other person proved to the satisfaction of the Court to be acquainted with the facts of the case.

(2) The person verifying shall specify, by reference to the numbered paragraphs of the pleading, what he verifies of his own knowledge and what he verifies upon information received and believed to be true.

(3) The verification shall be signed by the person making it and shall state the date on which and the place at which it was signed'.

It is to be noted that the verification consists of a statement at the foot of the pleading by the party or some other persons proved to be acquainted with the facts of the case that the statements made by reference to be numbered paragraphs of the pleading are true to his own knowledge. It is to be noted that the verification clause depends on the statements made in the body of the pleading. The statements in the body of the pleadings are not reproduced again in the verification clause. Presumably they are not read again by the deponent while making the verification though they are read before the verification was made.

11. The obligation to state the truth may also arise from the oath or affirmation made by the deponent. The forms of oaths and affirmations are given in the Schedule to the Oaths Act, 1969. Form No. 4 (Affidavits) in the Schedule to the Oaths Act requires the deponent to state that the contents of the affidavit are true. This is analogous to the verification of a pleading. Form No. 4 does not reproduce the contents themselves but only refers to them.

12. The question is what are the contents of the affidavit. Literally, in the present case the contents do not include the contents of the application but by reference or incorporation they may be said to include them. It is crucial, thereforee, to decide whether the oath or affirmation in the affidavit can be said to be of a statement made in the application as well as the affidavit or only of the statement made in the affidavit. The answer to this question depends on what exactly is the language of the oath embodied in the affidavit. The affidavit which is reproduced in the order of the trial court brings out the following things prominently:

(1) The facts disclosed in the numbered paragraphs of the application are to be read as a part of the affidavit. They are thus incorporated in the affidavit. This method of incorporation is familiar even in legislative drafting. We have instances of statutes which refer to the definition or other provisions of a different statute and incorporate them by such reference without inserting those provisions physically in the incorporating statute. Judicial decisions have held that the method of incorporation has the effect of 1egally incorporating the provisions which are actually outside the statute but whenever a statute has to be read those other provisions have to be read as forming a part of the incorporating statute physically as it were and, thereforee, in the eye of law.

(2) The application in which the statements are made is accompanying the affidavit and the two are, thereforee, to be read as forming one whole.

(3) The facts disclosed in the numbered paragraphs of the accompanying application have been read over to the deponent and it is these facts which are stated to be true by him.

The opinion of the learned Addl. Controller that the facts stated in the application have not been read over to the deponent before the Oath Commissioner and have not been affirmed by him appears to be based on the construction of the affidavit and not on the oral evidence as to what actually happened before the Oath Commissioner. The Construction by the Addl. Controller, must be said to err on the side of over strictness. It may be very desirable in practice to make the affidavit itself self contained, but the question before us is whether this is absolutely necessary. The argument of the learned counsel for the respondent is that the construction of, the affidavit made by the trial court is correct. Had the observation of the Addl. Controller been based on evidence as a finding of fact this argument would have had substance. We are, however, unable to go to the length which the Addl. Controller has gone because we would thereby be imposing on the tenant a degree of obligation which is not the minimum compliance with the provisions of law, but which is merely a desirable practice. In our view, a plain reading of the affidavit shows that the facts stated in the application were read over to the deponent and it is these facts which have been sworn to be true by him. If this were not the correct position even the verification under R. 15 of 0. Vi, C. P. C. would be liable to be attacked as an insufficient verification because what is stated in the pleading is not reproduced in the verification clause. If the verification under R. 1-5 of 0. Vi is a sufficient affirmation of the facts stated in the pleading we do not see how the verification or the oath taken by way of affidavit is not a sufficient affirmation of the facts stated in the application.

13. The learned counsel for the respondent referred to sub-sections (4) and (5) of Section 25B which talk of grounds, and facts stated in the affidavit. Literally such grounds and facts can stated in the affidavit itself but in the eye of law the affidavit also can say that the grounds and facts which are in the accompanying application and read over to the deponent are affirmed by way of' affidavit.

14. The contrary view taken by the Addl. Controller and defended by the learned counsel for the respondent would penalise the tenant for not reaching the desirable level of a self-contained affidavit. Such a penalty can be imposed on him only if he fails to comply with the minimum requirement of law, but not merely because a self-contained affidavit would have been desirable. We may observe that if the Controller is very particular that the desirable practice is that the affidavit should be self contained she may encourage such a practice. We are afraid, however, that the failure to reach this desirable practice will not result in non-compliance with the law and will not bar the tenant from seeking leave to contest the application.

15. For the reasons stated above, we are unable to agree with the view expressed by the Additional Controller. We, thereforee, allow the revision petition, set aside the order of the Additional Controller and remand the case back to the Additional Controller for trial according to law. Costs of the revision petition shall be borne by the parties as incurred.

16. Since the case has been delayed, the learned Additional Controller will expedite the disposal of the case.

17. Petition allowed.


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