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Bal Krishan Julka Vs. K.L. Verma - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtDelhi High Court
Decided On
Case NumberCivil Revision Appeal No. 6 of 1981
Judge
Reported inAIR1982Delhi19; 20(1981)DLT383; 1981(2)DRJ254
ActsOaths Act, 1969 - Sections 7; Evidence Act, 1872 - Sections 6; Delhi Rent Control Act, 1958 - Sections 14(1)
AppellantBal Krishan Julka
RespondentK.L. Verma
Advocates: R.K. Makhija,; Alok Kumar and; B.S. Charya, Advs
Cases ReferredJ. R. Jain v. Smt. Saraswati Devi Mahna
Excerpt:
.....respondent-landlord in his eviction petition and in his statement has emphatically stated that no rent deed was ever executed the service of notice under section 66 was mere formality and was not necessary.; delhi rent control act, 1958 - section 14(1)(e); that the requirement of a son even though earning and married, already living with the landlord, has to be taken into consideration while determining the requirement of the landlord. the word 'himself' in section 14(1 )(e) is to foe interpreted to mean 'for himself' as living along with his family members with whom he is normally accustomed to live. - - in other words, failure to administer oath does not mean that the statement of a witness recorded by the court is not admissible under this section the evidence..........petition in para 14 states that the premises were let on 10th october 1970 and no agreement on rent deed was executed. the petitioner-tenant in the written statement alleges that the agreement was executed and the same was delivered to the landlord. particulars of the alleged agreement are not pleaded by the petitioner-tenant. the respondent-landlord a.w. 4 deposes that the suit premises were not let out either orally or in writing for residence-cum-commercial purposes and that no rent deed was ever executed. besides this oral evidence the respondent has produced on record assessment record of the municipal corporation of delhi for the year 1975 (ex. a.w. 1/2). this record shows julka as tenant since six years for residential purposes. it purports to have been signed by one kimti lal.....
Judgment:

Sultan Singh, J.

(1) This revision petition under Section 25B(8) of the Delhi Rent Control Act, 1958 (here in after called 'the Act') is directed against the order of eviction dated 25th October, 1980 passed by the Additional Rent Controller. The respondent-landlord filed an eviction petition on the ground cover

(2) In this revision petition, the petitioner submits that the evidence of the respondent-landlord was recorded without administering any oath and thereforee the Controller was in error in taking into consideration the evidence so recorded. The statement of the respondent-landlord was recorded on 6th March, 1980 and it appears that no oath was administered to him. The remaining statement was recorded on 10th April, 1980 but on that date the Controller administered him the oath. Learned counsel submits that statement without oath or solemn affirmation is useless, is of no value and cannot be looked into and, thereforee, he submits that no order of eviction can be passed against the petitioner-tenant. The material evidence of the respondant recorded on 6th March, 1980 is the basis of the order of eviction as the landlord in his statement deposed about all the requirements and ingredients of Section 14(1)(e) of the Act. Learned counsel refers to para 1528 of Phipaon on Evidence, Twelfth Edition. It reads as under :- 'Where a witness before a magistrate had, by mistake, not been sworn, and the case was accordingly reheard on sworn testimony the same day, the second hearing was held justified as the first was a nullity and never placed the defendant in peril. So where the Lord Lieutenant in Ireland had given evidence on his attestation of honour as a pear, without oath, this was held illegal, but as the losing party who had called him had acquiesced, no new trial was granted.'

(3) This statement of law is based on Rex v. S. Marsham, (1912) 2 K.B 362 and Richards, Tweedy and Co. v. Hough 51 LJQB 361. In both these judgments the evidence recorded by the court without oath was held to be a nullity. This statement of law, however, is not applicable in India, where the Indian Oaths Act, 1873 was in force up to 26th December, 1969, The Oaths act, 1969 came into force from 26th December, 1969 repealing the Act of 1873. The relevant provisions for the purpose of the present case are almost the same and there is no material difference. Under Section 3 of the Oaths Act, 1969 all courts and persons having by law or consent of parties authority to receive evidence have power to administer oath. Under Section 4 of the Oaths Act, 1969 oaths or affirmations are to be made by all persons, that is to say who may lawfully be examined or required to give evidence besides others. The forms of oaths or affirmations are prescribed and mentioned in the Schedule annexed to the said Act. Section 7 of the Oaths Act, 1969 reads as under :

'NO omission to take any oath or make any affirmation, no substitution of any one for any other of them, and no irregularity whatever in the administration of any oath or affirmation or in the form in which it is administered, shall invalidate any proceeding or render inadmissible any evidence whatever, in or in respect of which such omission, substitution or irregularity took place, or shall affect the obligation of a witness to state the truth'.

(4) Under this section omission to take any or make any affirmation does not render inadmissible any evidence whatever and does not affect the obligation of a witness to state the truth. In other words, failure to administer oath does not mean that the statement of a witness recorded by the court is not admissible Under this section the evidence of the respondent-landlord which has been recorded without oath or solemn affirmation is admissible and thereforee the same can be acted upon. In other words, it can be read into by the court for purposes of granting or refusing relief to the respondent In Mohained Sugal Esa Mamasan Rer Alalah v. The King, Air 1946 PC 3 it has been observed that when there is admissible evidence a court can act upon it. The Supreme Court in Rameshwar S/o Kalyan Singh v. The State of Rajasthan 1952 S.C. 54 has observed that an irregularity in administering the oath or soleman affirmation cannot affect the admissibility of the evidence of the girl of seven or eight years. Under Section 7 of the Oaths Act, 1969 fallure to take oath or solemn affirmation does not debar a court from acting on the evidence. Thus I hold that the evidence of the respondent recorded without administering oath by the Additional Controller is admissible and can be acted upon. Learned counsel for the petitioner submits that as this evidence is without oath it is not credible. The credibility of a witness has to be determined with reference to the statement that he has made while in the witness box.

(5) Learned counsel for the petitioner next contends that the premises were let to the petitioner for residence-cum-commercial purposes and thereforee no order of eviction can be passed. He further submits that the family of the respondent consists of himself and his wife i.e. his son is not dependent upon him and that the respondent does not require the suit premises for the residence. The Controller after discussing the evidence on record has come to the conclusion that the respondent is the owner of the premises which were let for residential purposes, that the family of the respondent consists of himself, his wife, his son and daughter, that the respondent has been in possession of premises at Z-67, Rajouri Garder. Now Delhi as a tenant under Section 21 of the Act for a fixed period of two years with effect from 18th May, 1978 learned counsel for the parties have taken me through the evidence on record. and after going through the entire evidence I am of the view that there is no ground to reverse the finding arrived at by the Additional Controller. The respondent is the owner by virtue of the sale deed in his favor dated 17th June, 1960 Ex. A/4. The house tax bill and receipt Ex. Aw 4/2 also disclose that he is the owner. The Municipal Corporation of Delhi surveyed the property and survey report Ex. A.W. 1/1 and A.W. 1/2 also disclose that the respondent is the owner. The family of the respondent is the owner. The family of the respondent now consists of himself, his wife and married son. It is admitted by the petitioner-tenant that the third daughter of the respondent was married in February, 1981 and that the son was married on 6th May, 1981. Taking into consideration this subsequent events the family of the respondent accordingly consists of the respondent his wife, his son and son's wife. The family of the respondent is also disclosed in the ration card which was issued on 13th April, 1979 Ex. A W. 4/16. According to this ration card the family consisted of respondent his wife, one son and daughter aged 57, 50, 26 and 22 years respectively, as on 13th April, 1979. Admittedly, the daughter is married and the son has already been married. The son of the respondent was transferred to Delhi in February, 1979 as per orders Ex. A.W. 2/1 and A.W. 2/2. It is also in evidence that the respondent after his Transfer from Allahabad in April, 1978 requested the petitioner-tenant to vacate the premises. The petitioner did not vacate the premises. The respondent took the premises Z-97, Rajouri Gatden, New Delhi consisting of one bed room, one drawing cumdining room and one kitchen under Section 21 of the Act for a period of two years with effect from 18th May, 1978. A copy of the order granting fixed term tenancy js Ex. A.W. 4/14.

(6) The other dispute between the parties is about the letting purpose of the premises. The respondent in his eviction petition in para 14 states that the premises were let on 10th October 1970 and no agreement on rent deed was executed. The petitioner-tenant in the written statement alleges that the agreement was executed and the same was delivered to the landlord. Particulars of the alleged agreement are not pleaded by the petitioner-tenant. The respondent-landlord A.W. 4 deposes that the suit premises were not let out either orally or in writing for residence-cum-commercial purposes and that no rent deed was ever executed. Besides this oral evidence the respondent has produced on record assessment record of the Municipal Corporation of Delhi for the year 1975 (Ex. A.W. 1/2). This record shows Julka as tenant since six years for residential purposes. It purports to have been signed by one Kimti Lal Julka. It is not disputed that Kimti Lal Julka is one of the partners of the firm M/s. Julka Sons and Bal. Krishan Julka. Petitioner-tenant is also alleged to be a partner of M/s. Julka Sons. Further the house tax, water and electricity charges pertaining to the suit premises are being paid as if the premises were residential. The petitioner-tenant on the other hand states that he took the premises for residence as well as for his personal office. By personal office he means the office of the firm M/s. Julka Sons of which he alleges himself to be a partner. The petitioner has produced Chander Gopal Khanna, Public Witness 2, a property dealer. It was stated by him that the premises were let through him and that the same were let out for office-cum-residence purposes. The respondent-landlord has emphatically denied that the premises were let out through any property broker. The other witness K. N. Saxena, R.W. 4 from the Telephone Department who deposes that he brought the record of telephone No. 632326 which was previously installed at C-29, Greater Kailash I, New Delhi. This telephone was subsequently installed at the premises E-154, Greater Kailash, New Delhi on 28th October, 1970. He further states that this telephone was again shifted to M-57, Greater Kailash, New Delhi on 10th December, 1970. Learned counsel for the petitioner states that the petitionertenant was previously residing and carrying on business at C-29, Greater Kailash I, New Delhi, that he took the premises on rent and shifted his office as well as residence and that he got the telephone installed by getting the same shifted from C-29, Greater Kailash, New Delhi. The telephone bill at the address of the suit premises for November, 1978 Ex. R.2 has also been produced. This bill shows that the telephone is in the name of M/s. Julka Sons. By installation of the telephone belonging to the partnership firm, learned counsel submits that the premises were meant for the business of the firm and that the business was carried on by the petitioner-tenant. The tenant has not produced any documentary evidence to show that any business of M/s Julka Sons or any correspondence between the petitioner-tenant or their partner was ever carried on at the said premises. In fact no documentary evidence was produced by the petitioner tenant in support of his plea that the suit premises were used for commercial purposes besides being used for residence. The petitioner has produced the first rent receipt dated 10th October, 1970 Ex.R. 1 admittedly issued by the respondent. This receipt shows that the premises were let out with effect from 10th October, 1970. Rs, 450.00 was paid as advance rent for one month from 10th October, 1970 and another sum of Rs.450.00 was deposited as security. The last sentence of the receipt reads, 'the receipt is subject to the execution of the rent deed.' By these words, learned counsel submits that the rent note was executed and that this receipt was made subject to the execution of the rent deed. From this it appears that the parties agreed to execute rent deed but in fact no rent deed was executed and non-execution of the rent deed does not affect the contract of the tenancy between the parties. The question further remains : whether any rent deed was executed between the parties. The petitioner while in the witness box states that a rent note was executed on Rs. 2.00 stamp paper. The petitioner does not give the date of purchase of the stamp paper or the date of execution of any rent deed. The petitioner could have produced the stamp. Vendor from whom Rs. 2.00 stamp paper was purchased for execution of the same. No such evidence is forthcoming, The respondent on the other hand, emphatically denied that any stamp paper was purchased. The Additional Controller after considering the evidence on record has come to the conclnsion that no rent deed was executed.

(7) Learned counsel for the petitioner-tenant then contends that the Additional Controller was not correct in observing that the notice to produce rent note under Section 66 of the Indian Evidence Act ought to have been served upon the respondent. When the respondedt- landlord in his eviction petition and in his statement has emphatically stated that no rent deed was ever executed between the parties, the serving of notice under Section 66 of the Indian Evidence Act was mere formality and in my view it was not necessary but in spite of this observation of the learned Controller the finding is that the plea of execution of document with regard to the tenancy is false. Lastly, learned counsel for the petitioner submits that the son of the respondent is not dependent and no order of eviction can be passed for his requirement. From the ration card it appears that the son has been residing with the respondent-landlord and as such the respondent's son is a member of his family. In I.L. Mehta v. Smt. Hira Den 1971 RCJ 272 it has been observed that the requirement of a son even though earning and married, already living with the landlord, has to be taken into consideration while determining the requirement of the landlord. It has been further observed that the word himself cannot be taken to exclude the sons simply on the ground that they are independent and earning their living and are in a position to set up their seprate residence. In Sain Dass Berry v. Madan Lal Puri, 1971 RCR 887 this court observed that the word himself has to be interpreted to mean 'for himself' as living along with his family members, with whom he is normally accustomed to live. It is in evidence that the respondent's son was previously at Bombay but was transferred to Delhi and after his transfer he has been residing at Z-67, Rajouri Garden, New Delhi as is clear from the ration card. Learned counsel for the petitioner says that as the respondent's son is not dependent on him, his requirement should not be taken into consideration and relies upon J. R. Jain v. Smt. Saraswati Devi Mahna 1980 (2) RLR 36. In this judgment, it has been observed by the learned Judge that even persons belonging to the landlord's family who are independent can be treated as a part of the landlord's family and can be included in the correct meaning of the word himself as it occurs in Section 14(l)(e) oftheAct.

(8) In facts and circumstances of that case, revision was accepted and the eviction petition was sent back for redecision according to law. The facts of that case are not applicable to the eviction petition before me. Assuming that the son of the respondent is not dependent upon him and that no order of eviction can be passed for his requirement and if the requirement of the son is excluded it has not been brought to my notice whether the respondent and his wife have any place in Delhi for their residence. It is in evidence that the respondent-landlord has no other premises at Delhi except the suit premises. The respondent landlord has no right after the expiry of fixed term of tenancy under Section 21 of the Act to continue to occupy the premises Z-27, Rajouri Garden, New Delhi. Thus for the respondent and his wife an order of eviction has to be passed against the petitioner tenant. In my view the Additional Controller rightly passed the order of eviction against the tenant. The petitioner tenant has filed an application under Order 41 Rule 27 of the Code for leave to produce the partnership deed of the firm M/s Julka Sons of which the petitioner is a partner. He has also filed a certificate from the bank showing that all payment of rent was made by the firm to the respondent by means of cheque. The evidence on record is sufficient to enable me to pronounce judgment. The petitioner tenant cannot be allowed to fill in gap in his evidence, if any. I have gone through the partnership deed and certificate or payment of rent by means of cheques and I am of the view that the partnership deed does not affect the merits of the present case but only shows that the business of M/s Julka Sons was started at C-29, Greater Kailash, New Delhi. The certificate of the bank only shows that the cheques, were issued by the firm M/s. Julka Sons but it is not the case of the petitioner tenant that the firm was tenant of the suit premises. It is admitted that the petitioner alone is the tenant. So no useful purpose would be served by admission of these two documents at this stage, These documents cannot be taken into evidence under Order 41 Rule 27 of the Code of Civil Procedure.

(9) I may also add that this is a revision under Section 25B(8) of the Act and the High Court ordinarily is not to re-appreciate the evidence and sit in judgment over finding of fact arrived at by the Controller on the evidence before him. Further this court cannot interfere with the finding of the Controller merely because on the same evidence it is likely that this court may come to a different conclusion.

(10) I, thereforee, do not find any ground to interefere with the findings given by the Additional Controller. The revision petition is dismissed with no order as to costs.


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