Punjab-Haryana High Court
Harish Chander (Deceased) Through Lrs vs Mohinder Singh on 27 January, 2009
Author: K. Kannan
Bench: K. Kannan
Civil Revision No.1477 of 1989 (O&M) -1-
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
Civil Revision No.1477 of 1989 (O&M)
Date of decision:27.01.2009
Harish Chander (deceased) through LRs .............. Petitioner
Vs.
Mohinder Singh .............Respondent
Present: Mr. M.L. Sarin, Senior Advocate with
Ms. Himani Sarin, Advocate
for the petitioner.
None for the respondent.
CORAM: HON'BLE MR. JUSTICE K. KANNAN
1. Whether Reporters of local papers may be allowed to see the
judgment ?
2. To be referred to the Reporters or not ?
3. Whether the judgment should be reported in the Digest ?
-.-
K.KANNAN, J. (ORAL)
1. Application for eviction by the landlord for non-payment of rent was resisted on the ground that there was no form of tenancy relationship between the petitioner and the tenant. During the course of proceedings, the respondent himself had filed an application for assessment of rent, which was made by the Rent Controller by his docket order No.9985 directing the payment to be made at the next date of hearing on 17.09.1985. The amount was not paid as directed but the respondent filed a counter denying the relationship of landlord and tenant. The Rent Controller allowed the petition finding that the rent had not been paid as directed and finding that there had been a relationship of landlord and tenant and the contention to the contrary by the tenant was frivolous. The appellate authority reversed the decision.
2. The learned Senior Counsel appearing for the revision petitioner assailed the findings of the Appellate Authority on the ground that the Civil Revision No.1477 of 1989 (O&M) -2- reliance placed on the so-called affidavit signed by the landlord to the Electricity Board that electricity service connection could be made in favour of the respondent's wife ought not to have been relied upon since:-
(i) The document filed in Court was purported to be an
affidavit but not attested.
(ii) The document was merely a photocopy and not the
original.
(iii) An explanation had been given that since the
respondent was a Patwari he had requested for a
reference that only his wife was a tenant.
(iv) The document itself was signed by him in a blank
paper which was used wrongly by the respondent.
3. His argument essentially was that the relationship of landlord and tenant cannot be denied in the face of the express execution of the rent note by the respondent himself on 02.07.1984 marked as Ex. A-1. There was a further admission by the tenant of his status as such by his application for determination of rent during the course of the proceedings, where he had clearly admitted to his status as tenant and his willingness to pay the rent as determined by the Court.
4. The Appellate Authority's finding that the respondent was not a tenant by the only fact that there had been a subsequent affidavit signed by the landlord admitted the wife of the respondent as tenant does not, in my view, accord with evidence. If there was a specific document which might be looked upon as affording the most conclusive evidence regarding the relationship of landlord and tenant, it ought to be an agreement of tenancy itself. The rejection of evidentiary value of this document sprang from the perception of the Appellate Authority that the document was unregistered and hence it did not prove the relationship. His further reasoning was that Civil Revision No.1477 of 1989 (O&M) -3- the document was denied and it was not proved.
5. As far as the non-registration is concerned, the document purports to be for a period of two months and neither the provisions of the Indian Registration Act nor the Transfer of Property Act require registration in respect of tenancies for a period less than of one year. There is no requirement for registration of the instrument for a period of two months and the rejection of the value of Ex.A-1 is clearly erroneous. Even otherwise as a matter of legal inference, an instrument which is required to be registered but not so registered would still be admissible for proving the character of possession which is a collateral purpose and excepted by Section 49 of the Indian Registration Act. Viewing either way, the document could not have been left out of reckoning. Even as regards the genuineness of the document, at best it could only be stated to be an after- thought. At the earliest occasion when the petition was moved for ascertainment of rent, the respondent had not taken the plea that there was no relationship of landlord and tenant between the petitioner and him and that the instrument of rent was not true.
6. If the finding against the genuineness rent note is set aside, the other point that shall still require consideration is the effect of the affidavit alleged to have been signed by the landlord and sent to the Electricity Board. The document appears to have been sent for through Court and confronted to the party at the time of cross-examination. There was an opposition to the reception of the document even at the stage of admission of the document and left for consideration finally. The Rent Controller found the document to be not worthy of acceptance but the Appellate Authority took it to be the basis on which the petitioner could be non-suited. A secondary evidence would be available in all cases where primary evidence is either admitted or under other instances pointed out under Section 65 of the Evidence Act. Civil Revision No.1477 of 1989 (O&M) -4- The evidence of petitioner was read in Court and I do not find a direct denial of the signature in the instrument himself. The fact that the document did not have an attestation may have other consequences such as authentication of the signature or when a person resiled from a sworn statement made on oath and the consequences of perjury. The document may not be so much seen as an affidavit as such, but even if considered as a statement, it could always be explained. There is nothing unusual for a person to give a letter to the Electricity Department for taking connection in the name of the tenant's wife, if the tenant had other apprehensions that it might have not be possible for him as a public servant to enter into any transaction in relation to a property without securing the Department's permission, as might be required under the relevant service rules. I have gone into all these details to merely state that even if such statement was true, it would not unseat the admission made by the tenant in application offering himself as willing to pay the rent and elsewhere contending that the tenancy itself was not true. This cannot also be done in view of the express terms of the rent deed. A statement made to a third party is not such as to affect an admission of the party himself. A statement to a party will constitute an admission while a statement to a third party to a transaction would be merely a statement which could still be explained.
7. If the tenant had denied his relationship, the other consequence is what follows for non-payment of rent. Admittedly, the rent which was determined by the Court as being payable from 01.05.1983 has not been paid yet. The directions of the Court already made on 09.09.1985 which required the respondent to pay the rent before 17.09.1985 still remains unfulfilled. The non-payment of rent which affords a ground for eviction under Section 13(2)(i) is clearly attracted and the tenant is liable for eviction. The learned Senior Counsel also relies on the decision of this Civil Revision No.1477 of 1989 (O&M) -5- Court in Narinder Singh Vs. Sarabjit Singh (2007-2) PLR 405 that when a tenant denied the relationship of landlord and tenant, there would be hardly any justification for the Rent Controller to frame an assessment order in pursuance to the provisions to proviso to Section 13(2)(1) of the Act. The judgment was rendered in the context of explaining the decision of the Hon'ble Supreme Court in Rakesh Wadhawan Vs. Jagdamba Industrial Corporation (2003-2) 113 P.L.R 370. There have been several other decisions of this Court affirming the said view that if there was a denial by tenant of landlord's title, the question of even affording an opportunity to pay rent by a particular date as contemplated in Rakesh Wadhawan's case (supra) did not apply. I find myself bound and in full agreement with the statement of law as expressed and the tenant is liable to be evicted. The order passed by the Rent Controller directing eviction is restored and the order of the Appellate Authority reversing the decision is set aside.
8. The revision petition is, therefore, allowed with costs assessed at Rs.2500/-.
(K. KANNAN) JUDGE January 27, 2009 Pankaj*