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TMI Blog1988 (10) TMI 277X X X X Extracts X X X X X X X X Extracts X X X X ..... hat the rent was to be increased to ₹ 1,200 per month with effect from January 1, 1983, and it was pleaded that arrears of rent were due with effect from January 1, 1984, which were neither paid nor tendered in spite of service of notice of demand dated March 12, 1985. The ground of mis-user covered by clause (c) of proviso to subsection (1) of Section 14 of the Delhi Rent Control Act was also pleaded but that ground was negatived and no longer survives for decision in these appeals. ( 2. ) In the first case, the appellant pleaded that he, in fact, was not the tenant on the ground floor of the s.:id building and the premises were actually let out to M/s. Wadbrow India (P) Limped and thus, the eviction petition against him was not maintainable. On merits, the plea taken was that the rate of rent was ₹ 2,000 per month and there were no arrears payable as alleged in the petition. The receipt of the notice of demand was also denied. Similarly, in the second petition, the appellant took the plea that in fact, M/s. Spectra India is the tenant and he took the plea that the rate of rent is ₹ 1,000 per month and no arrears of rent, as claimed in the petition, were due. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cause no final order had been made under Section 15(1) requiring the appellant to deposit the arrears of lent within one month. It is now settled law that an order under Section 15(1) in an eviction petition brought on the ground of non-payment of rent can be made on the prima facie view of the disputed facts pleaded before the Controller. In the first case, the respondent had placed on record the agreement of lease duly signed by the appellant and by respondent's father on behalf of the respondent which clearly shows that the appellant is the tenant. He has been described in the lease deed as Managing Director of M/s. Wadbrow India (P) Ltd. but the whole of the lease-deed makes it evident that it is the appellant who is the tenant in the premises and not the company. It was contended by the learned counsel for the appellant that the lease-deed being not executed on a proper stamp paper and being not registered could not have been looked into for any purpose. The lease-deed was impounded and the duty and the penalty have been paid. So, it could be taken into consideration. The only point to be seen is whether the unregistered lease-deed could be taken into consideration or not ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion Act. In the cited case, a panchayatnama had been executed which purported to create a permanent lease. The question which arose was whether a person who came into possession of the immovable property on the basis of the said panchayatnama was a tenant or not ? This Court held as follows : The Panchayatnama in the present case, therefore, is not admissible in evidence for the purpose of proving the permanent lease which it seeks to create. That is an interest in immovable property. The document being unregistered is inadmissible. But for the nature of possession reference can certainly be made to the document. It can be read in evidence. A reading of the document shows that the defendant's possession is permissive. They admitted that the land on which they had built the mud huts belongs to the plaintiffs. They agreed to become tenants under the plaintiffs. Therefore, in order to explain the present possession of the defendants and its nature and character the document can be admitted in evidence. This will be a collateral purpose. ( 4. ) In the courts below, two judgments have been referred to in coming to the conclusion that the unregistered lease-deed can be looke ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s have been signed by the respondent's father as General Attorney while no valid power of attorney has been proved in his favour. Hence, he had no authority to sign the eviction petitions and institute the same. Before I deal with this contention of the learned counsel for the appellant, I may refer to the facts as they have been proved on the record. In both the cases the lease-deeds have been signed by the appellant as lessee and the respondent's father as attorney of the respondent. So, it is evident that it is respondent's father, who had inducted the appellant as tenant in the premises in both the cases. In these cases, the respondent had acted through her father in letting out the premises. After the appellant who had been inducted in the premises in question by respondent's father on the basis of the lease-deeds executed by respondent's father on behalf of the respondent, he cannot, in my opinion, in law take the plea that the respondent's father had no power of attorney in his favour to file the eviction petitions. Accepting the respondent's father as attorney of the respondent-landlady the appellant took the advantage of having the premises on l ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uch presumptions are not available to the first power of attorney produced in the proceedings inasmuch as that power of attorney is not authenticated and attested so as to draw the necessary presumptions under the Evidence Act. So, he has argued that if the power of attorney is held to be not admissible in evidence the eviction petitions filed by respondent's father are nut maintainable as they have not been instituted by any duly authorised person. He has further argued that even though it is held that these power of attorneys are admissible in evidence even then unless and until it. is proved taht the person who purported to sign as Notary Public is proved to be Notary Public, the necessary presumption under Sections 57 85 of the Evidence Act cannot be raised. He has also argued that the second power of attorney even if it is held to be admissible in evidence and presumptions under Sections 57 85 of the Evidence Act are liable to be drawn even then the said power of attorney would not have the effect of validating the illegal institution of the two eviction petitions. ( 6. ) Counsel for the respondent, on the other hand, has vehemently argued that there has been recipr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and State Governments to appoint the Notaries. Section 4 requires the respective Governments to maintain such register of the Notaries. Section 8 enumerates the functions to be performed by a Notary. Section 9 places a bar of any person to practice as Notary unless he is duly appointed. Section 10 deals with the procedure for removing the Notaries so appointed. Section 11 reads as follows: Ally reference to a Notary Public in any other law shall be construed as a reference to a Notary entitled to practice under this Act. ( 7. ) Counsel for the appellant has argued that the Notary Public mentioned in Sections 57 85 of the Evidence Act should mean to make reference to a Notary entitled to practice under this Act. There is a fallacy in this argument. Supposing a notification had been issued under Section 14 of the Act by the Central Government to the affect that notarial acts of Notaries of a particular foreign country shall be recognised within India, in that situation how it could be drought into cognisance the said Notaries Public of said foreign countries in line with the provisions of Section 11. Obviously the Notaries appointed in foreign country are not entitled to p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... presumption under Section 85 should be raised. Reliance was placed in support of this contention on National and Grindlays Bank Limited v. M/s. World Science News Others, AIR 1976 Delhi 263 14. After analysing the judgment given in National Grindlays Bank which was based on a ratio given by the Supreme Court in Jugraj Singh Another v. jaswant Singh Others, AIR 1971 SC 761. 15 the court noticed the provisions of Sections 11 14 of the Notaries Act. The. court also noticed that certain notifications have been issued under Section 14 by the Central Government in respect of certain other countries and then placing reliance on the case of Abdul Gaffar (Supra) and opining that the impact of Section 14 of the Notary Act having been not noticed in the case of National Grindlays Bank (supra) the court did not give any opinion mentioning that as full dress arguments have not been advanced he would not go into the matter. So. this judgment does not lay down any ratio contrary to what has been laid down by Yogeshwar Dayal J. in the case of National Grindlays Bank (supra). It is true that the impact of Section 14 of the Act was not specifically considered in the said judgment and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... The Supreme Court held that the first power of attorney did not comply with the requirement of law, so it would not have the effect of living the power to the attome to execute the sale deed and present it for registration as the said power of attorney was not authenticated in accordance with law. Under Section 33 of the Indian Registration Act, it was incumbent that an Indian residing abroad should get the document authenticated by a Notary .Public. The first power of attorney did not even show that the person who signed as a witness was a Notary Public even and there was no endorsement of authentication by the Notary Public. As regards second power of attorney, the Supreme Court held that it was executed before a Notary Public who complied with the laws of California and authenticated the document a? required by that law. It was held that although the Notary Public did not say in his endorsement that the executant had been identified to his satisfaction, still the same inference would flow from the fact that the Notary had endorsed on the document that it had been subscribed and sworn before him and the court held that the said power of attorney is valid and effective both under ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d. Then, Court referred to K. K. Kochuni v. State of Punjab, AIR 1960 SC 1080, (18) and held that after the said case no doubt was left that the authority of law seeking to deprive a person of his property otherwise than by way of acquisition or requisition was open to challenge on the ground that it constituted infringement of the fundamental rights guaranteed by Article 19(1)(r). The question which was being considered by the Supreme Court was whether the previous judgment given between the parties was res judicata ? The question was sought to be re-opened on the ground that ill view of the previous interpretation given by the Supreme Court, a challenge could not be made to Chapter IV-A on the ground that it infringed Article 19(1) (f). The Supreme Court repelled this argument and held that such a challenge was available when the previous case was decided in view of the ratio laid down in Kochuni's case (supra) and in that connection the Supreme Court held that even if certain aspects of a question were not brought to the notice of the Court, the Court would decline to enter upon re-examination of the question since the decision had been followed in other cases. It held that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... never raised and argued, it cannot be inferred that a decision has been given on that particular point. As already mentioned above, that if in deciding a particular point, some argument has not been advanced or some provision has not been brought to the notice of the Supreme Court, still decision on that point would be binding. The Supreme Court has clarified the position in Municipal Corporation of Delhi v. Gurnam Kaur, JT 1988(4) S.C. 11. (22) In this judgment it has been held that a decision is per inquirium if given in ignorance of a statute or rule having a force of statute. It was observed that the precedent ab silentio and without argument are of no moment. It was further observed that the doctrine of precedent is that a matter that has once been fully argued and decided should not be allowed to be reopened, and weight accorded to dicta varies with the type of dicta. If where the decision is given on a totally different point, then the same cannot be considered binding if another point arises for decision which was never urged before the Supreme Court. So, this Court has to independently consider whether in absence of any notification under Section 14 of the Notaries Act th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... glish notaries have exercised the right to administer oaths and take affidavits. These affidavits are, for the most part, intended for use in the British dominions abroad and in foreign countries where notarial acts are recognised. They may also act as commissioners for oaths under commissions granted by colonial and foreign authorities : English Courts, when required by statute or statutory rule, take judicial notice of the seal and signature of a Notary Public, for instance, under the English Commissioners for Oaths Act, 1889 or old Rules of the Supreme Court, England Order 38, Rule 6. ..... In Brooke's Treatise which is an authority on this subject and which I have just quoted, this point is discussed at pp. 52-53. It is said there : Where, therefore, an affidavit affirmation, declaration, etc. is sworn or taken before any of the persons mentioned in this rule no verification of the seal or signature is necessary; but where it is sworn or taken in a country not under the dominion of His Majesty, before a foreign notary, or before a person authorised by foreign law, the authority and the signatures of the notary or other person must be verified. The verification required i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e and presumptions under Sections 57 85 of the Evidence Act were held to be available to such a document although he relied upon the case of Jugraj Singh (supra) for giving that finding. Sultan Singh, J., in Suit No. 671/77, Bank of India v. Ajaib Singh, decided on April 20:. 1979, (24) followed the above case for giving the same opinion. However, independently of these two decisions of two Judges of this Court, I hold that the provisions of Section 14 of the Notaries Act do not place any bar in recognising the notarial acts of such countries wherein the notarial acts of Notaries of India are recognised. Even in Abdul Jabbar Others, AIR 1980 Allahabad 369, (25) it was held that Section 85 of the Evidence Act applies equally to documents authenticated by Notaries Public of other countries and there is no reason to import the provisions of Notaries Act for interpreting the provisions of Section 85 of the Evidence Act. I agree with these observations. Hence, I repel this contention of the learned counsel for the appellant that the said power of attorneys endorsed by Notary Public of U.S.A. by themselves arc not admissible in evidence. ( 13. ) Counsel for the appellant has, then ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o file the appeal. In Danish Mercantile Co. Ltd. Others Beaumont Another, (1951) 1 Ch. D.68U, (27) same principal was enunciated wherein it was laid down that it is open at any time to the purported plaintiff to ratify the act of the solicitor who started the action without authority and also to adopt the proccedings which had already taken place. It was observed that when that has been done, then, in accordance with the ordinary law of principal and agent, and in accordance with the ordinary doctrine of ratification, the defect in the proceedings as originally constituted is cured, and it is no longer open to the defendant to object that the proceedings then ratified and adopted were in the first instance brought without proper authority. In Subbiah Pillai @ S. S. M. Subramania Pillai v. Sankarapandiam Pillai others, AIR 1948 Madras 369. (28) a plaint, which was filed without signatures of 'ihe plaintiff, was held to be validly filed when the defect was cured by permitting the plaintiff to sign the plaint later on. This defect was removed at the stage of appeal. In Dahyabhai Girdhardas v. Bobaji Dahyaji Kotwal Others, AIR 1953 Bombay 28, (29) a son of the plaintiff had ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed that at least at the time when during the pendency of the appeals before the Rent Control Tribunal the. appellant had admittedly deposited the entire arrears of rent and uptodate rent and also continued to deposit month to month rent, the Rent Control Tribunal should have set aside the order of the Additional Rent Controller by which the defence of the appellant was struck out. He has urged that there is a discretion vested in the lower courts for not striking.out the defence if some good cause is shown for non-deposit of rent in. compliance with the order made under Section 15(1) earlier. It is true that the courts have discretion in the matter but that discretion has to be exercised is a judicial manner. In the present case, the appellant has been guilty of contumacious act. He had the opportunity of depositing the rent a number of times. At first, an order was made under Section 15(1) by the Rent Controller giving him necessary time for depositing the rent, the appellant did not deposit the rent. The matter was taken to the Rent Control Tribunal against the interlocutory order made under Section 15(1). The appeals were withdrawn and further time was obtained from the Rent Con ..... X X X X Extracts X X X X X X X X Extracts X X X X
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