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J.S. Bhalla Vs. G.J. Bhawnani - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtDelhi High Court
Decided On
Case NumberSecond Appeal No. 336 of 1980
Judge
Reported in23(1983)DLT125; 1983(4)DRJ200
ActsStamp Act, 1899 - Sections 35; Delhi Rent Control Act, 1958 - Sections 14(1)
AppellantJ.S. Bhalla
RespondentG.J. Bhawnani
Advocates: F.C. Bedi,; Honey Grover and; P.S. Khera, Advs
Cases ReferredPrakash Cotton Mills Pvt. Ltd. v. Municipal Commissioner
Excerpt:
indian stamp act, 1899 - section 35 & 36.after payment of the stamp duty and the penalty, the document became admissible in evidence and when once an instrument had been admitted in evidence, the same cannot be called in question at any subsequent stage of the proceedings as provided in section 36.delhi rent control act 1958 - section 14.purpose of letting--honest to prove? when the landlord plead that the property was let for residential purpose and the tenant in reply plead that the premises court be used for all purposes, the onus would he upon the tenant to show that he had right to uss the premises for purposes other than residence.delhi rent control act 1958 - section 14(1)(e)bonafide requirement--if the daughter of the respondent are settled in england it cannot be said that..........document. the additional controller impounded the document and directed the respondent to pay the stamp duty and penalty prescribed under section 35 of of the indian stamp act. the stamp duty and penalty payable under the said section has since been paid. section 35 of the indian stamp act provides that on payment of proper stamp duty and penalty the document shall be admitted in evidence. thus i am of the opinion that after payment of the stamp duty and the penalty, the document became admissible in evidence and when once an instrument had been admitted in evidence, the same cannot be called in question at any subsequent stage of the proceedings as provided in section 36 of the said act. the argument of the learned counsel for the appellant however is that the payment of stamp duty and.....
Judgment:

Sultan Singh, J.

(1) The appellant in this second appeal under Section 39 of the Delhi Rent Control Act, 1958 (here in after referred to as 'the Act' challenges the judgment and order of the Rent Control Tribunal dated 2nd August,1980 a ffirming in appeal the judgment of the Additional Controller dated 28th February, 1979 passing an order of eviction against him on the ground mentioned in clause (e) of the proviso to Section 14(1) of the Act. Briefly the facts arc that the respondent G. J. Bhawnani through his wife as attorney filed, a petition for eviction alleging that the appellant was inducted as a tenant in his property 5/16, Shanti Niketan, New Delhi with effect from 19th June, 1971 on a monthly rent of Rs. 400.00 excluding water and electricity charges, that the premises were let for residential purposes and were required for the residence of himself and his wife that he had no other reasonably suitable residential accommodation, that he was the owner of the premises, that he was aged more than 71 years, that he intended to reside in his oldage in the suit property. Eviction was also claimed on various other grounds but those are not miterial for the purpose of this second appeal. The appellant in the written statement denied that the respondent was the owner of the property and alleged that the premises were not let to him specifically for residential purpose and he had the right to use the premises for all purpoes. It was also denied that the respondent bona fide required the suit premises or that he had no other reasonably suitable accommodation in Delhi. It was alleged that the respondent was a permanent resident of U.K.. holding British Passport and settled in London for the last several years, that his family and children own 2-3 houses in U K., that the desire of the respondent was either abnormal increase in rent or to dispose of the property after getting it vacated, that previously an eviction petition on the ground of bona fide requirement was filed which was dismissed on 19th January, 1977, In the replication it was pleaded that the premises were let to the respondent for residential purposes and the same were situated in residential colony, that the appellant had no right to use premises for purposes other than residence. It was asserted that the respondent had no accommodation for his residence at Delhi except the suit premises. It was admitted that he had been living for a number of years in London but wanted to stay and live in his own country, that he was not interested to increase the rent, that he was prepared to give an undertaking not to let out the house to anyone, that earlier petition was dismissed on the technical ground for want of valid notice of eviction. The Additional Controller by his judgment dated 28th February, 1979 passed the order of eviction under Section 14(l)(c) of the Act which was confirmed by the Rent Control Tribunal.

(2) Learned counsel for the appellant submits that the eviction petition was filed by the attorney of the respondent but there was no dulystamped power of attorney in favor of the attorney. His submission is that the original power of attorney was executed out of India on 8th November, 1977 and it was not stamped within three months of its receipt in India as required under Section 18(1) of the Indian Stamp Act, 1899, that the Collector cannot make endorsement under Section 32 of the Act after the expiry of three months of its receipt in India as provided in the proviso (b) to Section 32 of the Indian Stamp Act, and thereforee thereforee the eviction petition was liable to be dismissed on this short ground.

(3) It is not disputed that the power of attorney was executed in London on 8th November, 1977 and that it was not stamped within the period in of three months of its receipt in India. There was an objection as to the admissibility of the said document. The Additional Controller impounded the document and directed the respondent to pay the stamp duty and penalty prescribed under Section 35 of of the Indian Stamp Act. The stamp duty and penalty payable under the said Section has since been paid. Section 35 of the Indian Stamp Act provides that on payment of proper stamp duty and penalty the document shall be admitted in evidence. Thus I am of the opinion that after payment of the stamp duty and the penalty, the document became admissible in evidence and when once an instrument had been admitted in evidence, the same cannot be called in question at any subsequent stage of the proceedings as provided in Section 36 of the said Act. The argument of the learned counsel for the appellant however is that the payment of stamp duty and penalty docs not make document executed out of India admissible in evidence after the expiry of three months from the date of its receipt in India. He relies upon Section 31 and 32 of the Indian Stamp Act. But in my opinion Section 32 of the said Act is not at all applicable to the facts of the present case. Sections 31 and 32 of the Indian Stamp Act are as under:-

'31(1)When any instrument, whether executed or not and whether previously stamped or not, is brought to the Collector, and the person bringing it applies to have the opinion of that officer as to the duty (if any) with which it is chargeable, and pays a fee of such amount (not exceeding five rupees and not less than (fifty naye paisa) as the Collector may in each case direct, the Collector shall determine the duty (if any) with which, in his judgment the instrument is chargeable. (2) For this purpose the Collector may require to be furnished with an abstract of the instrument, and also with such affidavit or other evidence as he may deem necessary to prove that all the facts and circumstances affecting the chargeability of the instrument with duty, or the amount of the duty with which it is chargeable, are fully and truly set forth therein, and may refuse to proceed upon any such application until such abstract and evidence have been furnished accordingly :- Provided that:-- a) no evidence furnished in pursuance of this section shall be used against any person in any civil proceeding, except in any inquiry as to the duty with which the instrument to which it relates is chargeable; and b) every person by whom any such evidence is furnished, shall, on payment of the full duty with which the instrument to which it relates, is chargeable, be relieved from any penalty which he may have incurred under this Act by reason of the omission to state truly in such instrument any of the facts or circumstances aforesaid. 32(1) When an instrument brought to the Collector under Secsion 31, is, in his opinion, one of a description chargeable with duty, and a) the Cellector determnies that it is already fully stamped, or b) the duty determined by the Collector under Section 31, or such a sum as. with the duty already paid in respect of the instrument, is equal to the duty so determined, has been paid. the Collector shall certify by endorsement on such instrument that the full duty (stating the amount) with which it is chargeable has been paid. (2) When such instrument is, in his opinion, not chargeable with duty, the Collector shall certify in manner aforesaid that such instrument is not so chargeable. (3) Any instrument upon which endorsement has been made under this Section, shall be deemed to be duly stamped or not chargeable with duty, as the case may be; and, if chargeable with duty, shall be receivable in evidence or otherwise, and may be acted upon and registered as if it had been originally duly stamped;

(4) Provided that nothing in this section shall authorise the Collector to endorse:- a) any instrument executed or first executed in (India) and brought to him after the expiration of one month from the date of its execution or first execution, as the case may be; b) any instrument executed or first executed out of (India) and brought to him after the expiration of three months after it has been first received in (India); (c) any instrument chargeable (with a duty not exceeding ten naye paise), or any bill of exchange or promissory note, when brought to him, after the drawing or execution thereof, on paper not duly stamped'.

31 provides for adjudication of proper stamp duty on a document and for that purpose the document is sent to the Collector to obtain his opinion. Section 32 provides for a certificate to be endorsed by the Collector in the circumstances mentioned therein. Proviso (b) t0 Section 32 debars the Collector from certifying by endorsement any instrument executed out of India and brought to him after the expiration of three months from the date of its first receipt in India. In other words, it means that if a person wants to obtain a certificate from the Collector on any document executed out of India he has to send it to the Collector before the expiry of three months of its receipt in India. In the instant case it is no body's case that anybody wanted to have endorsement from the Collector within the meaning of Sections 31 or 32 of the said Act. Further under Section 33 of the said Act any person having authority to record evidence is entitled to impound the document if the same was not duly stamped. Section 35 provides for admission of a document in evidence after payment of the stamp duty and the penalty. Section 39 provides that admission of a document in evidence shall not be questioned subsequently. No provision has been brought to my notice that the Additional Controller who admittedly has power to record evidence was not entitled to impound the power of attorney. The Additional Controller under Section 35 of the said Act was entitled to admit the document in evidence on payment of stamp duty and penalty which has been done. In Kadarmal Raghunath v. Ratiram and another, Air 1935 Nag 54 and Rath Bank Ltd v. Andhar Manick Tea Co. Ltd, : AIR1960Cal779 it has been held that a document executed out of India and not stamped within three months of its receipt in India under Section 18 of the Stamp Act can be impounded and admitied in evidence on payment of stamp duty and penalty payable on the document under Section 35 of the Stamp Act. Thus there is no substance in this objection.

(5) Learned counsel for the appellant next submits that there is no evidence on record to prove the purpose of Jetting. The repondent pleaded that the premises were let for use as residence. The appellant, on the other hand, pleaded that the premises were not let specifically for residential purpose and that he had a right to use the premises for all purposes. In other words there was no specific denial of the allegation that the premises were let for residence .The land on which the property in dispute was erected is a lease-hold property in terms of the lease deed executed between the President of India, the Co-operative Housing Building Society and the respondent dated 7th June, 1908 (Ex. A.W. 1/1). According to the deed the plot is a residential plot and a residential building was to be erected for private dwelling The respondent in his Statement, it is true, did not depose that the premises were let for residential purposes. It is however admitted by the appellant-tenant that the building had always been used for residential purposes. There is no agreement of tenancy between the appellant and ihe respondent. The purposes of letting is thereforee to be determined by other circumstances of the case such as nature of the building, the purpose for which it can be used, and the purpose for which the building has been put to use since the date of letting The building is residential and can be used as dwelling house, according to lease-deed between the respondent and the President of India. The properly has always been used for residential purposes by the appellant. The onus that the property was to be used for all purposes was upon the appellant. He admitted that he has used the property for residential purposes from the inception of the tenancy. He has not discharged the onus that he has used or can use the property for any purpose other than residence. When the landlord pleads that the property was let for residential purpose and the tenant in reply pleads that the premises could be used for all purposes, the onus would be upon the tenant to show that he had a right to use the premises for purposes other than residence. It is admitted by him that he had always been using the premises for residential purposes. The Additional Controller and the Tribunal have held that the premises were let for residential purposes. This finding is based on evidence and thereforee cannot be disturbed in second appeal. It cannot be said that the finding is perverse.

(6) Next the learned counsel for the appellant submits that there is no proof that the respondent was the owner of the property in suit. The respondent has appeared as A.W. 1 and has deposed that the house in question belongs to him and that Ex. A.W. 1/1 was the lease deed with respect to the plot over which he erected the house. The objection of the learned counsel is that the contents of the lease deed Ex. A.W. 1/1 have not been proved. He submits that the Executant of the lease deed ought to have appeared as a witness to depose about the correctness of its contents. The lease deed is in favor of the respondent. It was executed on his behalf by his attorney. He has deposed that he was the owner of the plot and that he erected the building. In my opinion this is sufficient evidence to hold that the respondent is the owner of the plot and the properly constructed thereon. Learned counsel for the appellant relies upon Bishwanath Rai v. Sachhidanand Singh, : AIR1971SC1949 wherein it has been observed that correctness of the contents of a letter can only be proved by examining as a witness the person who has written the letter. Next he relies upon Prakash Cotton Mills Pvt. Ltd. v. Municipal Commissioner for Greater Bombay and another, : AIR1982Bom387 wherein it has been observed that proof of signature of executant could not prove the contents of the document, that the content of the documents could only be proved by the executant. In that case the sale deed was held to be in admissible in evidence in view of the failure to examine the executant. The facts of these cases are not applicable to the facts of the present case. In the instant case, the owner has appeared, who, as already stated, has deposed that he was the owner and the lease deed was executed in his favor. The respondent while in the witness box, was not cross-examined about the ownership of the property in question. In the absence of cross-examination it must be held that the appellant admitted the facts deposed to by the respondent. In other words, the appellant admitted that the respondent was the owner of the property in question.

(7) Lastly learned counsel for the appellant submits that the alleged requirement of the respondent was not bona fide. The appellant's counsel alleges that the respondent was a British National settled in London with his family. He submits that the respondent would not like to settle in Delhi when there is no body to look after him and that the respondent has not got its assets transferred from London to Delhi, It is in evidence that the respondent does not own any property in Delhi except the property in suit. The respondent wants to occupy the same with his wife. It is also alleged that the respondent's daughters are settled in England and thereforee he would not like to settle in Delhi. The respondent has categorically stated that he and his wife have retired from their profession/service. The respondent was practicing as a barrister and he has deposed that he has stopped practicing as a barrister. His wife was in service and she has retired. The respondent was aged 71 years when he filed the petition in January 1978. If the daughters of the respondent are settled in England it cannot be said that the respondent and his wife should also settle in '.England. Both of them desire to live in their own country. There is nothing on the record to show that the respondent and his wife would not occupy the suit premises after getting the same vacated. In any case sufficient protection has been provided by Section 19 of the Act. After getting the premises vacated the landlord is required to occupy the same within two months of obtaining possession and to retain the same for a period of at least three years. The landlord is not entitled to relet or transfer the said property. In case the respondent does not occupy the premises within two months of obtaining possession from the appellant, the appellant-tenant would be entitled to make an application for getting back the possession from the respondent under Section 19(2) of the Act.In any case the Controller and the Tribunal have concurrently held that the requirement of the respondent was bona fide. This is a finding of fact and no question of law is involved.

(8) There is no infirmity in the judgment and order of the Tribunal confirming the order of eviction, passed against the appellant. The appeal, is, thereforee, dismissed with no order as to costs.


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