A.B. Rohatgi, J.
(1) These are two appeals by the tenant from the order of the Rent Control Tribunal dated July 27,1978.
(2) These are the facts. The respondent landlord brought a petition for eviction of his tenant Bhagwan Singh from premises No. 116 and 126. Banarsi Dass Building, Gandhi Nagar, Delhi. The ground of ejectment was that the tenant Bhagwan Singh had sublet premises bearing No. 126 to Budh Singh, party respondent No. 2 in the eviction petition, without the consent in writing of the landlord. This is the ground covered by clause (b) of the proviso to sub-s. (1) of S. 14 of the Delhi Rent Control Act, 1958 (the Act).
(3) The Additional Rent Controller passed an order of eviction on the ground of subletting. On appeal his judgment was affirmed by the Rent Control Tribunal. From the decision of the Tribunal the tenant has brought an appeal (S.A.O. 313 of 1978).
(4) The other appeal (SAO 312 of 1978) of the tenant is from a finding and not from an order. A question was raised for the first time in appeal before the Tribunal whether there were two separate tenancies, one in respect of premises No. 1 16 and the other of premises No. 126. The written statement was allowed to be amended to raise this new plea of two tenancies by the tenant. The Tribunal required the Additional Controller to record evidence on this new plea and return a finding on this point. The Additional Controller found that there were two separate tenancies. Against this finding the landlord preferred an appeal to the Tribunal. I do not think such an appeal lay when the appellant tribunal was seized of the matter and had only required the Additional Controller to take evidence and return his finding on the plea in accordance with R. 25, 26 and 28 of 0.41 of the Code of Civil Procedure. The finding of two tenancies returned by the controller was a finding which could be challenged in the pending appeal. The parties have a right to present a memorandum of objections to any finding within the time to be fixed by the appellate court. (0.41 r. 26, Civil Procedure Code ). But no party can prefer a separate appeal from the finding.
(5) Thus there were two appeals before the Tribunal. One was by the tenant from the order of ejectment and the other by the landlord against the finding of two tenancies. The Tribunal heard both the appeals together. On the question of two tenancies it did not agree with the Additional Controller. The Tribunal found that two tenancies had merged into one as one consolidated receipt for rent was being issued by the landlord. I have not allowed the question of two tenancies to be reagitated before me by the tenant because in my opinion it is essentially a finding of fact. In the appeal against the order of ejectment the Tribunal confirmed the decision of the Additional Controller that the tenant had sublet the premises.
(6) The main point urged before me in these appeals by the tenant is that the order of eviction on the ground of subletting is erroneous. On the point of subletting the evidence disclosed that Budh Singh, the alleged subtenant, was the father-in-law of the tenant Bhagwan Singh. Budh Singh was an old man. At the time of his death he was 90 years of age. He was purblind. He was unable to support himself because of his failing health and eyesight. He was staying with his son-in-law. He was residing in quarter No. 126. He had a separate ration card. These facts were stated by Bhagwan Singh in his evidence. But he categorically denied that he had sublet any part of the premises to his father-in-law Budh Singh.
(7) In his evidence the landlord produced a certified copy of a statement dated September 17, 1969 made by Budh Singh in Suit No. 49 of 1969 entitled 'Communist Party of India v. Kishan Chand.' The certified copy shows that Communist Party had filed a petition for the determination of standard rent under S. 9 of the Act against the present landlord Kishan Chand. In that case Budh Singh had appeared as a witness on behalf of the Communist Party. He had deposed in these terms:
'THE premises in my possession were given to me by my son-inlaw, namely, Bhagwan Singh who paid rent of these premises but now I am paying it to Bhagwan Singh. Bhagwan Singh pays Rs. l3.00 as rent for one quarter and Rs. 1 1.40 'per month for the other. The portion in possession of Bhagwan Singh is similar to the premises in dispute.'
On the basis of this statement of Budh Singh both the Additional Controller as well as Tribunal recorded the finding of subletting. The landlord in bids testimony frankly admitted in cross-examination that he came to know about the subletting when Budh Singh appeared as a witness in the case of the Communist Party. Apart From this he confessed 'I cannot say as to whether the premises No. 126 were sublet to Budh Singh'. Both the Additional Controller and the Tribunal were of the view that the statement of Budh Singh was the 'most important' piece of evidence of subletting. This was held to be an admission by the alleged sub-tenant and in the opinion of the Tribunal this 'clinched' the issue in favor of the landlord.
(8) Now during the pendency of these proceedings Budh Singh has died. So has Bhagwan Singh. Bhagwan Singh's legal representatives have brought the appeal against the order of eviction. The central question in the case is about the admissibility of the statement made by Budh Singh on September 17, 1969. The Tribunal brushed aside the objection to its admissibility by saying that when this statement was tendered in evidence no objection was raised regarding its admissibility or mode of proof. Accepting the statement as an admission the Tribunal held that Budh Singh was in exclusive possession of quarter No. 126 and according to his own testimony he was paying rent to Bhagwan Singh. The Tribunal, in agreement with the Controller, held that Budh Singh was a sub-tenant of Bhagwan Singh. The tenant's appeal was thereforee, dismissed.
(9) In my opinion, the tribunals below have strayed into an error. Budh Singh did not appear as a witness in this case. His statement in another case is inadmissible in the present ejectment proceedings brought by the landlord against the tenant on the ground of subletting. There are two main reasons. Firstly, it is the statement of a co-defendant against another defendant. In the petition of ejectment the landlord had imp leaded both the tenant Bhagwan Singh and the sub-tenant Budh Singh as parties. Now the statement of Budh Singh is the sole testimony to prove the fact that Bhagwan Singh had sublet the premises.
(10) The admissions of one co-defendant are not receiveable against another merely by virtue of his position as a co-party in the litigation. Bhagwan Singh cannot be damned by what Budh Singh had said elsewhere. Bhagwan Singh's defense cannot be discredited by praying in aid Budh Singh's statement made in other proceedings to which Bhagwan Singh was not a party. Moreover ordinary fairness would forbid the use of such a statement for it would in practice permit a litigant to discredit an opponent's claim merely by joining any person as the opponent's co-party and then employing that person's statements as admissions. It is plain, thereforee, both on principle and in policy, that the statements of a co-party (while usable of course against himself) are not usable as admissions against a co-party.
(11) In general, the statement made by one defendant cannot be read in evidence either for or against his co-defendant, excepting against himself; the reason being, that, as there is no issue between the defendants, no opportunity can have been afforded for cross examination and moreover, if it were allowed, the plaintiff might make one of his friends a defendant, and thus gain a most unfair advantage,
(12) The admission, assuming it to be an admission of Budh Singh, is no evidence against Bhagwan Singh. No defendant can, by admission or consent, bind the other defendint. The admission of one defendant will not be relevant against the co-defeidant, because it would be unjust to bind a co-defendant by the admission of another whom he has had no opportunity to answer or cross-examin . The general rule is that an admission against party making it, and not a ainst any other party (Kanwar Lal Gupta v. Amar Nath Chaw/a and other, I.L.R. (1972)1 Del 717. An admission or even a confession of judgment by one of several defendants is no evidence against another defendant. (See Amritolall Base & others v. Rajoneekant Mitter and another, 2 is 1 13). The admission of subletting by Budti Singh is thereforee no evidence against the tenant Bhagwan Singh.
(13) Secondly, under S. 33 of. the Evidence Act the statement of Budh Singh, now that he is dead, is not relevant for proving in these proceedings the truth of the facts stated by the witness in the former judicial proceeding. The reason is that the former judicial proceeding was not between the same parties. The former proceeding was a petition of standard rent under S. 9 of the Act brought by the Communist Party against the landlord. Budh Singh appeared as a witness of the Communist Party. Bhagwan Singh was not a party to those proceedings. He did not have any right or opportunity to cross-examine Budh Singh. Nor was the question at issue now the question at issue then. Unless the question in issue is substantially the same in the first as in the second proceeding the statement cannot be held to be relevant. These are the conditions of S. 33. The conditions mentioned in S. 33 must all be fulfillled before a previous deposition can be admitted in evidence. The absence of any of them will render the evidence inadmissible.
(14) The depositions of witnesses in other litigations carry little weight. They have weak evidentiary value. Even the depositions of parties, though admissible as admissions against persons making them, are not admissible against persons who are not parties to the previous litigation in which they were made (Ambika Prasad v. Ram Eqbal, A. I. R. 1966 Sc 605).
(15) Now both Ss. 18 and 33 deal with relevancy and not with mode of proof. If evidence is irrelevant, even consent of parties cannot make it relevant.
(16) thereforee, neither under S. 18 of the Evidence Act which deals with admission nor under S. 33 which deals with the statement by a witness who is dead this evidence can be held to be relevant. A statement of a witness before it can be received in evidence must have been subjected to crossexamination by the pirty against whom it is sought to be used. This is the acid test. Whether it is an admission or a deposition of a dead witness, the party against whom it is offered must have the opportunity to exercise the right to cross-examine, if desired. If he had the liberty to cross-examine and had not chosen to exercise it, the case is then the same in effect as if he had cross-examined. Here then the question is whether the tenant had an opportunity of cross-examining. The answer is 'no'. thereforee the statement of Budh Singh has no evidentiary value.
(17) Apart from the statement of Budh Singh there is no other evidence to support the finding of subletting. The statement of Budh Singh is inadmissible and ought not to have been received in evidence. This being so the finding of subletting cannot be sustained.
(18) Mr. G.N. Aggarwal appearing for the landlord has referred me to several rulings in support of his contention that if a document is admitted into evidence and no objection is raised at that time then no objection can be raised at a subsequent stage. This is not the law. S. 298, Cr. P. Code (Act V of 1898) expressly laid down that it is the duty of judge to exclude inadmissible evidence 'whether it is or is not objected to by the parties'. The duty of a judge in civil cases has not been expressed in similar language but there is no manner of doubt that it is exactly the same. The combined effect of S. 5 (which says that evideence maybe given of relevant facts and of no others), S. 60, S. 64 and proviso I to S. 165 of Evidence Act is that an omission to object to evidence not admissible under that Act does not make it admissible and that it is the duty of the judge in all cases to exclude in- admisaible evidence whether or not objected to by a party. The duty of a judge is to disallow inadmissible evidence even when no objection is taken. He should stop such questions himself without waiting for an objection to be taken to the admissibility. (Stirland v. D.PP. 1944 2 All Er 13 . In R. v. Pitambar, 7 Wr, Cr 25, Markby J. said : 'The moment a witness commences giving evidence which is inadmissible he should be stopped by the court.'
(19) An erroneous omission to object to evidence not admissible or relevant under the Evidence Act does not make it admissible. It is the duty of the court to exclude all irrelevant or inadmissible by the parties. (See Miller v. Madho Das, 23 is 106 (PC), Nanak v. Mian Md. A.I.R. 1936 Lah. 114 and Lachhu v. Mela, A.I.R. 1929 Lah. 583.
(20) Mr. Aggarwal then argued that subletting is essentially a finding of fact and ought not to be upset in second appeal under S. 39 of the Act and more so when it is a concurrent finding. J do not agree. If the finding of fact is based solely on a piece of evidence which is at ones irrelevant and inadmissible it will be height of injustice if the question is not allowed to be raised in second appeal. It is, in my opinion, a substantial question of law.
(21) For these reasons the appeal against the order of eviction (SAO 313 of 197?) is allowed. The eviction order is set aside. The other appeal (SAO 312 of 1978) against the finding of one tenancy of the Tribunal is dismissed. The parties are left to bear their own costs.