Mohan
Singh Vs. Late Amer Singh [1998] INSC 444 (1 September 1998)
A.S.
Anand, M. Srinivasan Srinivasan,J
ACT:
HEAD NOTE:
The
appellant became a tenant under Amar Singh the grant-father of the present
respondents with respect to premises situate in E-222, of Kailash on 29.6.1979.
For the sake of convenience, the parties will be referred to as tenant and
landlord herein. A joint application was filed before the Additional Rent
Controller (for short A.R.C.), Delhi under
Section 21 of the Delhi Rent Control Act, 1958 hereinafter referred to as the
Act for permission to let the premises for a limited period of two years. The
same was granted on 3.7.1979. On 29.6.1981 another joint application under
Section 21 was filed for permission to create a limited tenancy for two years.
On 30.6.1981 statements of landlord and tenant were recorded by the A.R.C..
Permission was granted for a period of three years. On the expiry of that
period the tenant did not vacate the premises and the landlord filed an
application for execution. Notice was issued to the tenant returnable on
25.1.85. As he was not served, fresh notice was ordered for 19.4.85. On that
day, the tenant did not appear though served on 24.3.85. The court directed
issue of warrant but in the afternoon, the tenant appeared before court and
filed his objections. An application was also moved for cancellation of warrant
of possession. By order dated 29.4.85 the A.R.C recorded that there was no
justification for issuance of ex-parte stay to stop the execution of warrant of
possession and ordered notice of the application to the counsel for the
landlord.
The
warrant could not be executed and when the matter came up before court on
31.5.85 the landlord was given time to file reply to the objections filed by
the tenant till 2.8.85. On the latter date, the landlord filed his reply, and
the appellant was given time to file re-joinder till 6.9.1985. No re-joinder
was filed on 5.9.1985 and the case was fixed for hearing arguments on the
objections and posted to 11.10.1985. On that date, the tenant filed replication
and served a copy thereof on the landlord's counsel.
Arguments
were heard and the matter was posted for orders to 18.10.1985. The A.R.C.
passed an order on 18.10.1985 that the objections filed by the tenant could not
be dismissed without recording the evidence and granted permission to the
tenant to lead evidence in support of the objection. The landlord was permitted
to repudiate the evidence led by the tenant. The dis-possession of the tenant
was stayed till the decision on the objections.
2. In
the objections filed by the tenant it was contended that the grant of
permission under Section 21 of the Act on 30.6.1981 was wholly vitiated by
fraud and misrepresention and it was contrary to the provisions of Section 21 of
the Act. It was alleged that the Landlord had misled and misrepresented the
relevant facts at the time of grant of permission that his family will shift
from Amritsar where he was residing but his family was never living at Amritsar
and the premises in question were not required by the landlord for his
residence after the expiry of three years as alleged by him. It was also stated
that the landlord owned a property bearing number E-3, East of Kailash, where
he and his family were living throughout. It was further stated that the tenant
was in occupation of premises since 29.6.1979 and had continued and remained in
possession of the premises in question and he had never vacated the same since
that date. It was alleged that the landlord wanted to enhance the rent to
Rs.3000/- per mensem which the tenant had refused to agree and therefore the
petition for execution was filed. It was also stated that the order under
Section 21 was liable to be set aside and quashed and no warrant of possession
in respect of the premises in question could be issued against the tenant. No
plea was raised then by him that he was not present in the court of A.R.C. on
30.6.81.
3. In
the reply filed by the landlord, it was contended that the tenant being a
signatory to the permission granted by the A.R.C. and a party to the
proceedings cold not challenge the permission so granted by the Court. The
allegations of fraud and misrepresentation were denied. It was also stated that
the landlord was not living in E-3, East of Kailash as alleged by the tenant.
4. In
the re-joinder filed by the tenant on 11.10.85 though it was dated 2.9.85 the
earlier allegations were repeated. According to the tenant, a plea was raised
that he did not appear before the A.R.C. on 30.6.81 and was not a party to the
proceedings. According to the landlord such a plea was not raised in the said
rejoinder. Evidence was recorded in the proceedings. The matter was being
adjourned periodically for various reasons and ultimately an order was passed
by A.R.C. on 22.10.94 only. In that order there was no specific reference to
the contents of the rejoinder filed by the tenant. It was found by the A.R.C
that as there was no dispute that the premises were not vacant and available
for letting out when the second permission was taken, the Court had no
jurisdiction to grant permission under Section 21 of the Act. It was held that
a fraud was played on the Court concealing the factum of tenant being in
possession of the premises and the permission was obtained on such concealment.
Consequently the A.R.C. held that the permission granted under Section 21 of
the act was without jurisdiction and could not be enforced. Accordingly, the
objections of the tenant were upheld and the landlord's application for
execution was dismissed.
5. An
appeal was filed by the landlord under section 38 of the Act before the Rent
control Tribunal, Delhi. The counsel for the landlord
addressed his arguments on 166..2.95 and the matter was posted to 22.5.95 for
the arguments of the counsel for the tenant. From then onwards, the matter was
being adjourned from time to time and on several occasions at the request of
the counsel for the tenant. On 18.12.95 the arguments were heard and concluded.
On that day, an application was moved on behalf of the tenant for permission to
file additional evidence. The counsel for the landlord represented that he did
not want to file any reply but advanced his arguments orally on the application
also. The matter was posted to 16.1.96 for orders but the case was being
adjourned repeatedly and ultimately the order was passed on 21.9.96. The
Tribunal allowed the appeal and set aside the order of the A.R.C. The Tribunal
directed the landlord to approach the trial court for issuance of warrant of
possession in accordance with law.
6. In
the application for additional evidence filed before the Tribunal it was stated
by the tenant that on 29.6.81 he was busy in Embassy for obtaining visas and on
30.6.81 he left the country and purchased the tickets in Germany for his onward
journey and that the photo copies of the passport and the tickets were enclosed
to prove that the alleged limited tenancy under section 21 of the Act was
obtained on 30.6.81 from the court by the landlord on manipulation and fraud
played on the Court. Referring to the said application for additional evidence,
the Tribunal observed in its order as follows:
"During
the pendency of the appeal an application was made on behalf of the respondent
praying for permission to file additional evidence with regard to permission under
section 21 of the Act having been obtained by the appellant in absence of the
respondent as according to him on 29.6.1981, the respondent was busy in Embassy
for obtaining Visas and on 30.6.1981 he left the country and purchased a ticket
for Germany for his onward journey which would be evident from the entries in
his Passport and Visa. That may or may not be so but the present application
appears to be quite vague and in any case it appears to me an afterthought
device on the part of the respondent in as much as no such plea about his
absence before the Rent controller was taken up by him in the objection filed
in response to the execution application. In any case, this evidence would be
wholly irrelevant in view of may finding that the respondent was not within his
rights to maintain the objection petition after expiry of the period of limited
tenancy. The application has therefore no merit and is accordingly
dismissed".
7. The
Tribunal found that the A.R.C. erred in entertaining the objections of the tenant
at the late stage of execution and allowing the same in view of the settled
position of law that such objections could not be raised after the expiry of
the period of tenancy. There was also an objection by the tenant that the
landlord's appeal was not maintainable in view of the amended provision in
section 38 of the Act which permitted appeals only on questions of law.
That
objection was overruled by the Tribunal on the ground that the petition for
execution was filed long before the said amendment was introduced and the
landlord's vested right of appeal could not be affected by the subsequent
amendment of 1988. The Tribunal relied upon the judgment of this court in Garikapati
Veeraya versus N. Subbiah Choudhry and other AIR 1957 S.C. 540. On the above
findings the Tribunal had allowed the appeal of the landlord.
8. The
tenant filed a revision petition under Article 227 of the Constitution before
the High Court. The only contention urged before the High Court was that the
order dated 18.10.85 passed by the A.R.C. permitting the appellant to raise
objections to the execution had become final and it was not open thereafter to
the landlord to challenge before the appellate court the maintainability of the
objection on the ground that it was filed after the expiry of the period of
tenancy. That question was answered against the tenant by the High Court on the
ground that the entire matter was at large before the appellate Tribunal and it
was competent to decide the entire controversy. Consequently, the revision,
petition filed by the tenant was dismissed.
9.
Aggrieved thereby, the tenant prayed for Special Leave which was granted. Thus
this appeal has come in file. The most important plea raised by the tenant in
this appeal is that he was not in Court on 30.6.81 as he had left the country
in the intervening night of 29th and 30th June, 1981 for Germany from where he was to travel to two other European
countries. According to him the signature on his alleged statement was not his.
When leave was granted, notice was taken on behalf of the landlord and time was
granted to file objections to the application for stay.
Alongwith
the counter affidavit to the application for stay, the landlord filed an
application I.A. 3 of 1997 for revocation of the Special Leave granted. There
was also an application to bring the respondents on record as the legal
representatives of the deceased landlord Amar Singh. It was numbered as I.A. 4
of 1997. The latter application was ordered on 10.3.97. In I.A. 3 of 1997 it
was stated that several false and misleading averments were made in the
petition for Special Leave including the plea that the appellant was not
present in India on 30.6.81 and that he did not
appear before the A.R.C.
10. On
8.11.97 an additional affidavit was filed on behalf of the landlord in which it
was stated that a copy of the rejoinder filed by the tenant as Annexure to the
Special Leave Petition and found in the paper book (Pages 67 of 73 as at
present) was not a correct copy and there was a deliberate tempering of the
same. Alongwith that affidavit a copy of rejoinder said to have been served on
the counsel for the landlord in the trial court was filed as annexure R- 1. It
was also stated in that affidavit that a document had been interpolated among
the records of the Tribunal as Page 79-A though it was not produced before the
Tribunal and a copy of the said document had been filed by the appellant in
this court and found at Page 167 of the Paper Book at present.
11.
The matter came before the Court on 29.1.98. An order was passed referring to
the copy of the rejoinder produced as Annexure R-1 by the landlord and an
opportunity was given to the tenant to file a detailed affidavit in reply to
I.A.3 of 1997 as well as to the additional affidavit. A direction was issued to
the Registry to call for the records from the Court of A.R.C Delhi. Then the
matter came up again on 27.3.98. The relevant passport of the tenant was shown
to the court but taken away immediately as xerox copies had been filed. The
Court passed on order that the appeal would itself be finally disposed and
posted the same to August 1998. On 12.8.98 the appeal was heard in part and
adjourned to 13.8.98 for further hearing.
The
tenant was directed to produce the passport containing various visa entries. A direction
was also issued to the Rent Control Tribunal to send records of the case
R.C.A.No.749 of 1994 through a special messenger and the matter was posted for
13.8.98 for further hearing. On that day, the arguments were concluded and
judgment was reserved as the counsel for the appellant prayed for some more
time to produce the passport. The matter was posted to 20.8.98 in Chamber at 1.30 p.m. The counsel for the parties were permitted to
supplement the arguments by submitting two page written submissions. On 20.8.98
counsel for the tenant submitted that the passport was not traceable by his
client.
In the
written submissions filed on behalf of the tenant it was stated that inspite of
the best efforts the old passports which were joined together were not traceable
and the photo copies thereof filed earlier may be treated as court record.
12.
Learned counsel for the tenant has put forward the following contentions:
(a)
The order of the A.R.C. dated 30.6.81 if null and void as it was procured by
the landlord by playing fraud on court.
(b)
The Rent Tribunal was absolutely wrong in holding that the tenant's objections
were belated and not entertainable over looking the fact that such a plea was
not available to the landlord since it had been negatived by the A.R.C. in his
order passed on 18.10.85 which became final as it was not challenged by the
landlord.
13.
The first contention has two limbs. One is that the tenant had left India around 2.00 a.m. on 30th
June, 1981 for Germany and he did not appear before the
A.R.C. and give any statement. The signature at the bottom of the statement was
not his and it was forged. learned counsel invited us to compare that signature
at the bottom of the statement was not his and it was forged. Learned counsel
invited us to compare that signature with the admitted signatures of the
tenant. According to him to disparity is so glaring that anybody would say that
the disputed signature is not that of the tenant. He pointed out that even
before the Tribunal, his client sought for examination of a handwriting expert
in order to ascertain the authenticity of the signature but the Tribunal did
not consider the application.
14. We
have already pointed out that the tenant did not in his objections to the
execution filed on 19.4.85 raise the plea that he was not present in the Court
of A.R.C. on 30.6.81. Nor did he contend that the signature in the statement
recorded by the A.R.C. was not his. An explanation for this omission has been
attempted in the S.L.P. In para 5 thereof it is averred as follows:- "The
petitioner was served on 19.4.85 and immediately on the same date 2.30 P.M. he
got filed the objection petition in haste and at the time he was not aware of
the details of his visit during the year 1981". The averment that he was
served on 19.4.85 is false as he was served on 24.3.85 (vide A.R.C's order
dated 29.4.85). Further, the explanation is hardly satisfactory. The tenant
claims to be having business connections in several countries and is
undoubtedly worldly wise. It he was not party to the order, he would have put
forward the plea in the forefront. The failure to raise the plea in the
earliest opportunity is a definite pointer against the genuineness of the
version.
15.
Assuming for a moment that his explanation is acceptable, did he raise the plea
in the second opportunity which he got when he filed a rejoinder on 11.10.85?
Our answer to this question is undoubtedly in the negative and we proceed to
give our reasons immediately. The rejoinder bears the date 2.9.85. We had
earlier set out the chronology where from it will be seen that the A.R.C posted
the matter to 6.9.85 for filing rejoinder. if the rejoinder was ready on 2.9.85
there was no reason why it was not filed on 6.9.85. The A.R.C. posted the
matter for arguments on 11.10.85 on which date the rejoinder was filed in Court
and obviously it was served on the counsel for the landlord only at that time
in Court. It is claimed by the tenant that in Para V thereof the following plea
was raised.
"The
respondent was inducted as a tenant under the permission granted in Misc.
Petition No. 304 of 1979 executed between the parties and the respondent has
not appeared before the Additional Rent controller and is not a party to the
limited period of tenancy created under Section 21 of Delhi Rent control Act on
30.5.81".
According
to learned counsel for the landlord the above sentence was differently worded
in the rejoinder originally when it was filed in Court as could be seen from
the copy of the rejoinder served on his counter - part before the A.R.C The
relevant sentence in para v in the said copy reads as follows:
"The
respondent was inducted as a tenant under the permission granted in Misc.
Petition No. 304 of 1979 executed between the parties and the respondent has
continued in possession of the premises even after the expiry of the limited
period of tenancy created under Section 21 of Delhi Rent control Act".
The
portion "not appeared before the Additional Rent controller and is not
party to" is found in the former while the latter contains the words
"continued in possession of the premises even after the expiry of."
Further the portion "on 30.6.81" is also not found in the latter.
16. A
mere look at the original record shows even to the naked eye that the aforesaid
portion was a later interpolation after erasing the matter which was already
typed. It is also clear that the last portion "on 30.6.81. had also been
typed much later and it was not there originally. It is quite evident that the
rejoinder filed in Court had been tampered with by the tenant at a later point
of time in order to enable him to raise a plea that he was not present in Court
on 30.6.81. The sentence as it is found in the copy of the rejoinder served on
the counsel for the landlord in open court on 11.10.85 is quite in accord with
syntax and the context. The sentence begins with a reference to what happened
in 1979. The statement that he continued in possession even after that tenancy
expired is in natural sequence. There was no occasion in that sentence to refer
to the absence of the tenant from Court 30.6.81. The sentence in the original
record as it reads now is very clumsy and unnatural. Obviously the entire
sentence as it is found in the landlord's copy was intended to be and is
reiteration of the statement made in para 5 of the objections filed on 19.4.85
that "the respondent/objector "is in occupation and possession of the
premises since 29.6.1979 and has continued and remained in possession of the
premises in question".
17.
"If really the tenant had raised the plea that he was not present tin
Court in 30.6.81 and his signature had been forged, it would not have been done
in this insignificant manner in a portion of a sentence which may easily go
unnoticed. On the other hand such a plea would have been put forth prominently
in the fore front of the rejoinder and the tenant's advocate would have lost no
time to bring it to the notice of the Court. The order of the A.R.C. dated
18.10.85 does not indicate the raising of such a plea.
18. A
more important circumstance is that there was no whisper by the tenant in his
deposition rendered as late as on 10.10.86. At that time, the petitioner was
not in any haste or hurry. By then, he had all the time in the world to gather
all the details of the tours undertook by him in 1981 and stated them in his
evidence. Nothing prevented him from stating on oath that he was not in India at the relevant time and no
statement was made by him before the A.R.C. on 30.6.81. Far from saying so, the
tenant admitted his presence in court on 30.6.81 in the following words in his
deposition:
"When
the second permission u/s 21 was obtained then I knew that the petitioner had
never shifted Amritsar. I never told the Court that the
petitioner had never shifted to Amritsar because I wanted the house on rent".
19.
Admittedly the tenant was represented by a lawyer in the said proceedings. It
there had been a plea in the rejoinder that he had not appeared before the
A.R.C. and was not a party to the limited period of tenancy created on 30.6.81
even junior most lawyer would have elicited the said fact at the beginning of
the chief-examination itself. Even if the lawyer had failed to do so. The
tenant would have volunteered such a statement in the course of his evidence.
The
fact that there was no such statement by the tenant in his deposition shows not
only that there was no plea in the rejoinder to that effect when the evidence
was recorded by the A.R.C. but also that the plea raised later is false.
20. It
is also significant to note that the abovesaid sentence in the rejoinder is as
vague as possible. It stops with merely referring to the no-appearance of the
tenant before the A.R.C and does not go to the extent of saying that the tenant
was out of the country at that time. The plea that the tenant had left India in
the night of 29th/30th June 1981 was not raised at any time before the A.R.C or
before the Appellate Tribunal till 18.12.95 when an application was moved by
the tenant for permission to file additional evidence. For the first time in
the proceedings, the tenant raised the plea in the said application that he had
left the country on 30.6.81. Even at that stage the tenant did not choose to
give the details of his alleged flight to Germany from India. Neither the name of the airline
nor the time of the flight was disclosed to the Court. Alongwith the said
application for additional evidence the tenant claimed to have produced a photo
copy of the passport and a ticket alleged to have been purchased in Germany for his onward journey to other
countries.
21. If
there was a plea in the rejoinder that the tenant did not appear before the
A.R.C and was not a party to the proceeding, the A.R.C. who passed an order on
22.10.94 in favour of the tenant would certainly have referred to the same and
given it as his first reason for holding that the order dated 30.6.81 was not
enforceable. For the first time, reference is made to the said plea as having
been raised in Para 5 of the rejoinder in the written
submission filed on behalf of the tenant before the appellate Tribunal on
15.1.96. Obviously, the interpolation in the rejoinder was made some time prior
to that. It is also worthy of notice that in the application for additional
evidence there was no statement that a plea had already been raised in the
rejoinder filed before the A.R.C. We have no hesitation therefore to hold that
the rejoinder filed by the tenant before the A.R.C had been tampered at a later
point of time and in all probability when the matter was pending before the
appellate Tribunal in order to support a new plea raised for the first time by
the tenant.
22.
Learned senior counsel for the tenant has submitted that the copy of the
rejoinder produced before the landlord's counsel does not contain any initial
of the tenant's counsel and it cannot be considered to be genuine.
According
to him, the said copy was not the one served on the landlord's counsel in the
court of the A.R.C. The argument is obviously one in despair. A comparison of
the copy filed by the landlord's counsel with the rejoinder in the Court record
shows that certain corrections had been made in ink in paragraphs I and II at
pages 1 and 2 thereof.
The
hand-writing is the same in both and we have no doubt that whoever corrected
the original rejoinder carried out the correction in the copy before serving it
on the counsel for the landlord. So also, some corrections are typed. They also
correspond with each other. In this connection it is interesting to read the
version of the tenant in his affidavit filed in this Court on 20.3.98. In para
3-4 (p.189 of the paper book) it is stated as follows:- "However, the
petitioner cannot say for sure which copy was delivered on the other side since
that is done by the counsel generally. However, the petitioner now faintly
remembers that some corrections might have been by the counsel before signing
and filing the rejoinder in trial court on 2.9.1985 and he had signed a number
of copies of the rejoinder and ordinarily his signatures or the counsel's
signatures would have been there on the copy as supplied/given to the
landlord".
The
above explanation is palpably false and is hereby rejected. We are convinced
that the copy produced by the landlord's counsel is none other than that served
on his counter-part in the court of the A.R.C.
23.
Irrespective of the existence of the plea in the rejoinder, we would consider
the question whether the tenant has proved his absence from the court of the
A.R.C on 30.6.81. The burden is on him to prove the same. he has miserably
failed to do so. We have seen the original record of the A.R.C. in which the
statements of the landlord and the tenant were recorded on 30.6.81. The paper
has been torn exactly across the signature of the tenant and pasted with a cellotape.
We have a grave suspicion that it was deliberately torn and pasted like that so
that it will become difficult to compare the signature of the tenant in that
statement with his admitted signatures. Significantly in the copy of the
proposed agreement filed by the landlord and the tenant jointly before the
A.R.C. the portion containing their signatures has been completely torn and not
available at all. The tenant has admittedly signed the proposed agreement and
he was a party thereto. The impossibility of comparing the disputed signature
with the admitted signatures is one reason for our not granting the prayer to
have the disputed signature examined by a handwriting expert.
24. It
is not the case of the tenant that he was in India but did not attend the
court. His only case is that he had gone out of India and was not in a position
to attend the Court. Such a plea could easily have been proved by producing the
relevant official documents such as passport and visa as well as a copy of the
air ticket. the plea was itself raised only at the appellate stage but the
relevant documents were not produced even then, In the application for
additional evidence the tenant claimed to have produced photo copies of the
passport and the ticket purchased in Germany for onward journey. The said
ticket even if genuine would not prove in any manner that he was in Germany on
the relevant date. The ticket could have been purchased by any person on his
behalf. Even the said photo copy of the ticket did not relate to the year 1981.
That fact is admitted by the tenant in his affidavit filed in this Court on
20.3.98.
In
paragraph 7 it is stated thus:
"That
it is further submitted that the copy of the ticket, which is enclosed at page
167 of the paper Book is not unfortunately the ticket which was used by the
petitioner for going out of the Germany by mistake some other ticket relating
to previous travel in the year 1980 has been annexed.
The
confusion created because the dates in the ticket are of the same date but of
different year. This therefore can be ignored." The only other document
which was filed before the appellate Tribunal was the Xe-rox copy of some pages
of the passport.
Initially
the relevant page which contained the visa issued by the German Embassy was not
filed before the Tribunal. It is evident from the records as rightly pointed
out by the learned counsel for the landlord that the relevant page may have
been introduced into the records of the Tribunal on a later date. that page
bears the number 79A and it finds place between 77 and 79. We find that all the
pages in the record of the Tribunal are number serially by taking both sides of
each paper into account. Even if the reverse side is blank it is counted for
numbering and on the next page the next number is given. The numbers written
actually are only odd numbers such as 1,3,5,7 and so on. There is no page in
the entire record excepting the aforesaid one bearing a number containing an
alphabet in addition to numerical. If the document had been filed alongwith the
or the document filed with the application for additional evidence it should
have borne the number 81 and so on. There is no reason why the paper after 77
should be numbered as 79A. Even so it should have been numbered as 77A or 78A
as it is placed before 79. In the affidavit filed by the landlord on 8.11.97 it
is emphatically stated that before the counter-affidavit dated 27.1.97 was
filed in this court he had inspected the records of the appellate court
(wrongly mentioned as trial court) and at that time the said paper was not in
the court records and that the tenant had got the same interpolated in the
court records thereafter as page 79A. In our opinion this accusation made by
the landlord appears to be well founded. In the absence of any explantion for
the number 79A found on the said page, an inference can be drawn that the same
was interpolated in the records of the Tribunal at a later point of time and
was not filed alongwith the application fort additional evidence.
25.
The aforesaid document now found at page 79A of the records of the Tribunal is
the same as that found on page 167 of the paper book in the appeal in this
court. It purports to be a visa issued by the German Embassy at new Delhi on 26th June, 1981. It is for the period 30th June, 1981 to 20th July, 1981. At the top there is a rectangular seal which reads as follows:
------------------------------
Bundesrepublik Deuischland A-30-June 1981 Flugshafen Frankfurt/Main14
-------------------------------- After a copy of the document was served on the
landlord it appears that the latter approached the German Embassy at New Delhi in order to verify the authenticity
and correctness of the same. In Paragraph 6 of the affidavit filed by the
landlord on 8.11.97, it is stated thus:
"Further
in order to verify the authenticity of the said document, the answering
respondent sent a photocopy of the same to the German Embassy in Delhi for verification of the same. The
communication dated 15.4.1997 received from the German embassy clearly shows
that the said document is not genuine and is a forged document. The petitioner
has relied upon the immigration stamp in the said document to claim that he
arrived in Germany on 30.6.1981 whereas 'A' in the Immigration Stamps stand for
Ausreise = departure and not arrival. Further the name of the country Deutchland
in Immigration Stamp is spelt incorrectly and the date is not from a rotating
stamp which is used by the customs authorities. It is submitted that the
appellant has resorted to forgery to mislead this Hon'ble Court and it is
submitted that it is a fit case where apart from revoking the special leave
granted, criminal proceedings should be initiated against the appellant. A copy
of the letter dated 15.4.1997 is annexed hereto as Annexure R-2."
26. In
the letter filed as Annexure R-2 referred to above, it is stated thus:
"TO
WHOM IT MAY CONCERN
The
genuineness of the Visa/Immigration Stamp of the Federal Republic of Germany in
Indian passport No.R-244359 enclosed herewith look doubtful, since it shows the
following deficiencies: Spelling Mistakes
a) name
of the country "Deutschland" is spelt incorrectly as "Deuischland"
in the Immigration Stamp;
b) In
the Visa Stamp "Gebuhr" means Fee, it is spelt incorrectly as "Gebchr"
c)
Name of the city "Frankfurt" in the Immigration Stamp
appears to be incorrectly spelt as "Frankfort".
"A"
in Immigration Stamp indicates departure (A=Ausreise) but not arrival. Arrival
is indicated by "E" (E=Einreise).
The
date (30 Juni 1981) in the Immigration Stamp is not from a rotating stamp.
Customs used rotating stamps.
The
round embassy seal in the bottom left corner appears faked and requires further
investigation.
(Signed)
Rehienbeck ATTACHE
27.
Learned senior counsel for the tenant vehemently argued that no reliance should
be placed on the aforesaid letter which was written on the basis of a photo
copy and the proper course to be adopted by the court is to sent the passport
in which the original visa is entered to the Embassy and get its opinion as to
the authenticity thereof.
when
the matter was being argued on 12.8.98 he offered to produce the original passport
on the next date. We adjourned the matter to 13.8.98 at 2.00 P.M. but learned
counsel wanted further time. We granted one week therefrom for production of
the passport and posted the matter to 20.8.98 in the chambers at 1.30 P.M. But
as stated earlier, the passport is not forthcoming. It is very strange that the
passport which was flashed before the court on an earlier occasion before the
matter was heard is now missing after the court is fully apprised of the facts
of the case. This is eminently a fit case to draw an adverse inference against
the tenant from the non-production of the passport. Itself it had been
produced, there is no doubt that it would have been found out that the
Visa/immigration stamp of the Federal republic of Germany was not genuine but a
fabricated one. We have already pointed out that the tenant had tampered with
the records in Court more than once and has been developing his case stage by
stage. The plea that he was not in the country was raised for the first time in
December 1995 i.e. nearly 11 years after the warrant of possession was issued
against him be the A.R.C. Further, we find that in there photo copies of the
two other visa stamps made by the German Embassy with reference to other
periods the immigration stamps are not only different in shape but the
spellings of the relevant words are correct. The spelling mistakes found in the
disputed visa are not found in the photo copies of the other visas of the same
country.
In
such circumstances we hold that the tenant has not proved the genuineness of
the visa/immigration stamp of the Federal Republic of Germany. Nor has he
proved that he was not in India on the relevant date and the relevant time.
Hence the first limb of the contention that the order of the A.R.C. dated 30.6.81
was vitiated by fraud fails and is rejected.
28.
The second limb of the contention is that on 29.6.81 and 30.6.81 the premises
was not vacant as it was occupied by the tenant and the application under
Section 21 was not maintainable. According to the tenant the said
jurisdictional fact was concealed form the ARC and his permission for creating
a limited tenancy was obtained. It is also the contention of the tenant under
this limb that the landlord was never the resident of Amritsar and always
living in another premises in New Delhi and that he did not require the
premises at the expiry of the limited tenancy.
According
to the tenant the aforesaid facts were also concealed from the A.R.C. It is
with respect to this limb of the contention that the learned counsel for the
landlord has submitted that it was not open to the tenant to raise such a plea
of fraud after the expiry of the tenancy and if threre was any such fraud, he
should have approached the A.R.C. with an appropriate application before the
expiry of the tenancy. In support of the said contention learned counsel for
the landlord has cited some of the recent rulings of this Court. Before
considering the said aspect of the matter it is better to clear the facts in
this regard.
29.
The contention that there was a subsisting tenancy on 29.6.81 and 30.6.81 is
factually fallacious. The tenant has in more than one place in the objection
filed by him before the A.R.C and in his deposition dated 10.10.86 stated that
the earlier limited tenancy commenced on 29.6.79. What is relied on at present
is that the first order granting permission for limited tenancy was passed on
3.7.79. The records and the proceedings relating thereto are not available. In
the absence of such records and on the face of the express admission made by
the tenant that the tenancy commenced on 29.6.79 we have to proceed on the
footing that the permission granted on 3.7.79 was post facto and the tenancy
expired on 28.6.81. Hence, when the application was filed on 29.6.81 for
permission under Section 21, there was no subsisting prior tenancy. Now that we
have found that the tenant has failed to prove his alleged absence from the
court on 30.6.81, it follows that both the landlord and the tenant were present
before the A.R.C. and made statements as recorded on 30.6.81 Factually there is
no concealment or suppression of the facts and much less fraudulently by the
landlord before the A.R.C. There was nothing wrong in the A.R.C. accepting the
statements of landlord and tenant made before him.
30. On
the above facts we will consider the relevant rulings in chronological orders.
in J.R. Vohra versus Indian Export House Pvt. Ltd. (1985) 1 S.C.C. 712 a Bench
of three Judges held that when the landlord applies for eviction after expiry
of limited period of tenancy The Rent controller must issue warrant for
recovery of possession as a matter of course and is not obliged to issue a
prior notice to the tenant or before issuing a notice make an enquiry into
allegations of fraud, collusion or mechanical application of mind in granting
permission for creation of a limited tenancy made by the tenant.
31. In
Smt. Ddhanwanti Versus D.D. Gupta (1986 3 S.C.C 1 it was held that obtaining
permission for letting out the premises to the same tenant for limited periods
more than once after expiry of each such period would not by itself be
sufficient to prove that the premises were available for being let out for the
indefinite period without actually showing the absence of the landlords'
intention to occupy the premises. It was held that such successive grants of
permission were not vitiated.
32. In
Pankaj Bhargava and another versus Mohinder Nath and another (1991 1 S.C.C. 556
Bench of Three Judges considered the matter at some length. After referring to Dhanwanti's
case (supra) the bench observed that in one sense successive grants of
permission would share the characteristic of post facto grant. The bench
referred to the ruling in J.R. Vohra (supra) and quoted extensively therefrom.
It will be advantageous to extract the following passage from the judgment of
the Bench:
"...In
Vohra case this Court laid down that a tenant who assails the permission under
section 21 on the ground that it was procured by fraud - a ground not
dissimilar to the one urged in the present case - must approach the Rent
control during the currency of the limited tenancy and for an adjudication of
his pleas as soon as he discovers facts and circumstances which, according to
him, vitiate the permission. it was held that whether it was a 'mindless' order
or one procured by fraud practised by the landlord or was the result of a
collusion between landlord and tenant there was no justification for the tenant
to wait till the landlord made his application for recovery of possession but
there was every reason why the tenant should have made an immediate approach to
the Rent Controller to have his pleas adjudicated as soon as facts and
circumstances giving rise to such pleas comes to his knowledge.
The
reason why this requirement was built in working the rights and obligations
under Section 21 was the need to reconcile and harmonise certain competing
claims that arise in administering the scheme of Section
21.
This Court, referring to those competing claims observed:
"What
then is the remedy available to the tenant in a case where there was in fact a
mere ritualistic observance to the procedure while granting permission for the
creation of the limited tenancy or where such permission was procured by fraud practised
by the collusion between the strong and the weak?. Must the tenant in such
cases by unceremoniously evicted without his plea being enquired into? The
answer is obviously in the negative. At the same time must he be permitted to
protract the delivery of possession of the leased premises to the landlord on a
false plea of fraud or collusion or that there was a mechanical grant of
permission and thus defeat the very object of the special procedure provided
for the benefit of the landlord in Section 21?. The answer must again be in the
negative..." The manner in which the court harmonised and reconciled these
competing and conflicting claims and interests was by insisting upon the tenant
to approach the Rent controller for adjudication of his pleas as soon as he
discovered that the initial grant of permission stood vitiated. This was
evolved as part of policy of law for the reconciliation of divergent and
competing claims. It was held:
"...In
our view these two competing claims must be harmonised by insisting upon his
approaching the Rent Controller during the currency of the limited tenancy for
adjudication of his pleas no sooner he discovers facts and circumstances that
tend to vitiate abinito the initial grant of permission. Either it is a
mechanical grant of permission or it is procured by fraud practised by the
landlord or it is the result of collusion between two unequals but in each case
there is no reason for the tenant to wait till the landlord makes his
application for recovery of possession after the expiry of fixed period under
Section 21 but there is every reason why the tenant should make an immediate
approach to the Rent Controller to have his pleas adjudicated by him as soon as
facts and circumstances giving rise to such pleas come to his knowledge or are
discovered by him with due diligence..." The court proceeded to point out
that any appeal to the remedy based on concept of nullity and collateral attack
is inappropriate and that in a collateral challenge the exercise was not the
invalidation of a decision, but only to ascertain whether the decision existed
in law at all and rely upon incidents and effect of its non-existence. It was
held that the permission granted under Section 21 must be presumed to be valid
till set aside and the doctrine of collateral challenge will not apply to a
decision which is valid ex hypothesi and which has some presumptive existence,
validity and effect in law. The bench pointed out the distinction between
nullity stemming from lack of inherent jurisdiction or a proceeding that wears
the brand of invalidity on its forehead on the one hand and on the other a
dispute as to existence or non-existence of facts which require investigation
into and adjudication upon their existence or-existence on the basis of
evidence. The Court said:
"...If
the parties before the Rent Controller admitted that the fact or the event
which gives the Controller jurisdiction is in existence and there was no reason
for the Controller to doubt the bona fides of that admission as to a fact of
event, the Controller is under no obligation to make further enquiries on his
own as to that factual state. The test of jurisdiction over the subject- matter
is whether the Court or Tribunal can decide the case at all and not whether the
Court has authority to issue a particular kind of order in the course of deciding
the case".
33.
The above ruling is sufficient to negative the contention of the tenant in the
present case. It is therefore not open to him to challenge the validity of the
permission granted on 30.6.81 after the expiry of the tenancy.
34.
Learned counsel for the tenant placed reliance on Shrisht Dhawan (Smt.) verus
M/s. Shaw Brothers (1992) 1 S.C.C. 534. In that case, the Bench has in fact
relied on the ruling in Pankaj Bhargava's case (supra). The Bench has clearly
held that the objection to the validity of the permission for limited tenancy
should be made immediately on the tenant becoming aware of the fraud, collusion
etc. and that the tenant may be permitted to raise objections after the expiry
of lease in exceptional circumstances only. It has also been held that the
burden to prove fraud or collusion is on the person alleging it. No exceptional
circumstance has been made out in this case to enable the tenant to challenge
the order dated 30.6.81 after the expiry of the tenancy. The ruling in Shrisht Dhawan
(supra) does not help the tenant in this case.
35.
There is not merit in the second contention that the order dated 18.10.85 had
become final and therefore it was not open to the landlord to argue before the
appellate Tribunal that the tenant was not entitled to raise objection to the
validity of the permission after expiry of the tenancy. The order dated
18.10.85 was of interlocutory nature and on a prima facie view it permitted the
parties to adduce avidence after holding that the objections of the tenant
required consideration. That would not prevent the landlord from contending
before the appellate Tribunal that the tenant was not entitled to raise
objections to the validity of the permission after the expiry of the tenancy as
per the law laid down in J.R. Vohra and Pankaj Bhargava (supra). Thus both
contentions of the tenant deserve to be rejected and the appeal has to suffer
dismissal.
36.
But the matter does not end there. We have found that the records of the A.R.C.
and the Rent Tribunal have been tampered. We have also drawn an inference that
the visa alleged to have been issued by the German Embassy on 26.6.81 to the
tenant and the Immigration Stamp found thereon are not genuine. Prima facie,
the circumstances indicate that the tenant had committed the aforesaid
offences. The tenant has also made an attempt to hoodwink this Court and
succeed in his appeal. he was successful in getting the Special Leave and an
order staying dispossession. Tampering with the record of judicial proceedings
and filing of false affidavit, in a court of law has the tendency of causing
obstruction in the due course of justice. it under mines and obstructs free
flow of unsoiled stream of justice and aims at striking a blow at the rule of
law. The stream of justice. It undermines and obstructs free flow of unsoiled
steam of justice and aims at striking a blow at the rule of law. The stream of
justice has to be kept clear and pure and no one can be permitted to take
liberties with it by soiling its purity. Since, we are prima facie satisfied
that the tenant has filed false affidavits and tampered with judicial record,
with a view to eradicate the evil of perjury, we consider it appropriate to
direct the Registrar of this Court to file a complaint before the appropriate
court and set the criminal law in motion against the tenant, the appellant in
this case namely Mohan Singh.
37.
Before parting with this case, we have one more observation to make. on a study
of the records in this case, we find that a very distressing state of affairs
prevails in the court of A.R.C. and Rent Tribunal. We are told by learned
counsel that the situation is the same, if not worse in subordinate courts on
the regular civil side. We found that the rejoinder of the tenant said to have
been filed in the Court on 11.10.85 does not contain any endorsement by the
counsel for the landlord acknowledging receipt of a copy thereof. We were
informed by counsel that there is no practice of serving such papers on the
other side in advance and getting the acknowledgment of service endorsed on the
same. It was stated that such papers would be handed over across the table to
the counsel in open court and some times, the Presiding Officer would enter the
same in the court diary. We were also told that there is no rule in that
regard. That is a very unsatisfactory situation. A rule should be made that
papers intended to be filed in Court in matters in which the other side has
entered appearance should be served on the opposite party under acknowledgment
endorsed thereon.
38. It
is seen that the copy of the rejoinder served on counsel for the landlord in
the Court of the A.R.C. does not bear the initial or the signature of the
tenant or his counsel, nor is there any endorsement that it is a true copy of
the original rejoinder. A rule should be made that any paper served on the
counsel for the opposite side must bear the endorsement that it is a true copy
of the original filed in the Court and it should be signed by the counsel or
the party.
39.
The original rejoinder found among the records of the A.R.C. bears a rubber
stamp on each page with the date being smudged completely. From that stamp
nobody can say that it was filed in Court on 11.10.85. We accepted that date to
be the date of filing because of the entry made by the A.R.C.
in his
notes. We have however a doubt whether the document which is now on file was
the same as the one which was filed before the A.R.C. The reason for
entertaining such a doubt is that while the date stamp in other documents filed
in that Court are clear and legible, the date stamp on this document is alone
smudged. In the place of the date somebody has written in ink a figure which
looks like 11. The Presiding Officer should take care to see that any paper
filed in Court bears the date stamp clearly on every page and he should put his
initials and date on each page clearly. Such a procedure would ensure to some
extent that papers filed in Court are not tampered with.
40. We
have referred to the application for additional evidence filed by the tenant
before the Rent Tribunal and the fact that one of the documents said to have
been filed along with the application was not filed at that time and
interpolated into the records much later. We also find that the application was
not filed at that time and interpolated into the records much later. We also
find the application was not given a separate number. The rejection of the
application was made part of the order in the main appeal.
It
would have been better if the application had been given a separate number and
an order had been passed thereon separately. But that is not a matter of grave
concern. What is to be noted is that in the application, the documents sought
to be file as additional evidence were described vaguely in Paragraph 5 as photo
copies of the passport and the ticket. it is absolutely necessary that every
application for permission to file additional evidence should contain a list of
documents giving full particulars thereof such as date, parties thereto and
description. Apart from that each document should also bear a certificate of
endorsement made by the counsel or the party that the said document was the one
referred to in the affidavit or application of the party. The application must
also specify the number of pages of each document filed therewith.
Whenever
such applications are filed in pending matters, the copies thereof and copies
of the documents sought to be filed as additional evidence should be served on
the order side after being duly certified as true copies by the applicant or
his counsel. Appropriate rules have to be framed in this regard also.
41.
The above are the matters which have come to our notice in this case. There are
several other matters relating to practice and procedure which require proper
attention. In so far as the Act is concerned, Section 56 enables the Central
Government to make rules. Rule 23 of the rules framed under the Act provides
that the Controller and the Rent Control Tribunal are as afar as possible be
guided by the provisions contained in the Code of Civil Procedure, 1908. It is
absolutely necessary for the Controller and the Rent Control Tribunal to see
that the provisions of the Stature, rules and the Code of Civil Procedure are
strictly complied with in all the proceedings before them.
42. We
are informed that even for the civil courts in the Union Territory of Delhi, no
rules of practice have been framed by the High Court. It is a sad state of
affairs that the High Court of Delhi has not given its thought in this regard.
It is high time that the High Court framed appropriate rules of practice to be
observed by all the courts in the territory subordinate to it. We direct the
Registry to send copies of this judgment to the concerned department of the
Central Government as well as the High Court of the Central Government as well
as the High Court of Delhi so that appropriate rules may be made by them
respectively with regard to the proceedings under Delhi Rent control Act and
the proceedings in the regular civil courts.
We
request the High Court to give its immediate attention to this matter and also
cause periodic inspection of the courts subordinate to it and issue such
circulars as may be necessary in order to plug the loopholes then and there.
43. In
the result, the appeal is dismissed with the above direction. The tenant shall
pay a sum of Rs.20,000/- by way of costs to the respondents. The tenant shall
also deliver possession of the premises in question to the respondents on or
before 26.9.1998.
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