State of U. P. v. 1st Additional District Judge — 1983 DIGILAW 629 (ALL)

JUDGMENT Satish Chandra, C.J. - Being of the opinion that the decision of this Court in Sh. Anant Ram Katiyar v. Prescribed Authority 1976 (2) ALR 585 requires reconsideration, a learned Single Judge has referred the following question for decision to a Division Bench: Whether the report of the valuer in the instant case was admissible in evidence notwithstanding the fact that the valuer had not filed his own affidavit proving his report? 2. The proceedings in the present case were for determination of rent u/s 21(8) of the Rent Control Act No. 13 of 1972. The landlord who initiated these proceedings filed an affidavit. In paragraph 5 of the affidavit the landlord stated: That the report of J.P. Varshney, Government valuer which bears the signatures of Sri. J.P. Varshney who had signed it before the deponent is being filed. The report was annexed to the affidavit. According to the report the market value of the accommodation was Rs. 5,98,500/-. The tenant, who is the Petitioner in the writ petition, contested the proceedings. According to him the house in question was over hundred years old and the rent of Rs. 475/- per month which was being paid was proper. 3. The Prescribed Authority held that the market value of the property was Rs. 4,00,000/-. One-twelfth of its 10 percent came to Rs. 3,333.33p. This was the rent payable per month from October 1, 1976. 4. The landlord as well as the tenant went up in appeal. The learned District Judge held that the valuer's report was well founded and acceptable. On its basis the market value of the accommodation was held to be Rs. 5,98, 500/-. Consequently the monthly rent payable was fixed at Rs. 4,987.91 p. Both the appeals were disposed of accordingly. Aggrieved, the tenant has filed the present writ petition. 5. The question is whether, in the circumstances, the contents of the valuer's report were admissible in evidence. 6. In Katiyar's case (supra) reliance was placed on an architect's report. The report was filed as an annexure to an affidavit. The affidavit was not of the architect, but it stated that the architect had signed the report in the deponents presence. It was argued that the report was not admissible in evidence. The learned Single Judge repelled the submission. In Katiyar's case (supra) reliance was placed on an architect's report. The report was filed as an annexure to an affidavit. The affidavit was not of the architect, but it stated that the architect had signed the report in the deponents presence. It was argued that the report was not admissible in evidence. The learned Single Judge repelled the submission. He held; I am not inclined to lay much store by any technical irregularities in the formal proof of the report because the proceedings under the Act before the Prescribed Authority are not strictly governed by the provisions of the Code of Civil Procedure, the Evidence Act or the Transfer of Property Act. In fact Section 38 of the Act clearly provides that the provisions of this Act shall override the provisions of the Transfer of Property Act and the Code of Civil Procedure. 7. Section 38 aforesaid says that the provisions of this Act shall have effect notwithstanding anything inconsistent therewith contained in the Transfer of Property Act, 1882 (Act No. IV of 1882), or Code of Civil Procedure, 1908 (Act No. v. of 1908). If there be any inconsistency, the provisions of the Rent Control Act will prevail over the Transfer of Property Act or the Code of Civil Procedure. 8. Section 34 of the Rent Control Act is equally material and relevant. Its Sub-section (1) provides: 34. Powers of various authorities and procedure to be followed by them- (1) The District Magistrate, the prescribed authority or any appellate or revising authority shall for the purposes of holding any inquiry or hearing any appeal or revision under this Act have the same powers as are vested in the Civil Court under the Code of Civil Procedure, 1908 (Act No. v. of 1908), when trying a suit, in respect of the following matters, namely, (a) summoning and enforcing the attendance of any person and examining him on oath; (b) receiving evidence on affidavits ; (c)... (d)... (e)... (f)... (g) any other matter which may be prescribed. 9. Thus the authorities under the Act have the same powers as are vested in the Civil Court under the Code of Civil Procedure, inter alia, in respect of receiving evidence on affidavits. (d)... (e)... (f)... (g) any other matter which may be prescribed. 9. Thus the authorities under the Act have the same powers as are vested in the Civil Court under the Code of Civil Procedure, inter alia, in respect of receiving evidence on affidavits. Sub-section (6) of Section 34 provides: (6) Affidavits to be filed in any proceeding under this Act shall be made in the same manner and conform to the same requirements as affidavits filed under the Code of Civil Procedure, 1908 (Act No. v. of 1908), and may be verified.... 10. Sub-section (8) of Section 34 is the residuary provision. It says: For the purposes of any proceeding under this Act and for purposes connected therewith the said authorities shall have such other powers and shall follow such procedure, principles of proof, rules of limitation and guiding principles as may be prescribed. 11. Under Sub-section (1) the authorities have the same powers as the Civil Court in respect of receiving evidence on affidavits. In view of Sub-section (6) the affidavits that are received by the authorities have to be made in the same manner and conform to the same requirements of affidavits filed under the Code of Civil Procedure. 12. Order XIX of the CPC deals with affidavits. Rule 3 of Order XIX is relevant. It says; 3. Matters to which affidavits shall be confined- (1) Affidavits shall be confined to such facts as the deponent is able of his own knowledge to prove, except on interlocutory applications, on which statements of his belief may be admitted: Provided that the grounds thereof are stated. 13. In view of this provision the affidavits that are filed before the Prescribed Authority or other authorities under the Rent Control Act are to be confined to such facts as the deponent is able of his own knowledge to prove. 14. In the present case the landlord filed an affidavit in order to prove the report of Sri. J.P. Varshney, the Government valuer. That report was sought to be proved by averring that J.P. Varshney had signed the report before the deponent. The report was filed as annexure 3 to the affidavit. 15. By this affidavit the signature of Sri. J.P. Varshney was proved. The question is whether such an affidavit is sufficient to prove the contents of the valuer's report. That report was sought to be proved by averring that J.P. Varshney had signed the report before the deponent. The report was filed as annexure 3 to the affidavit. 15. By this affidavit the signature of Sri. J.P. Varshney was proved. The question is whether such an affidavit is sufficient to prove the contents of the valuer's report. In our opinion, the answer is clearly in the negative ; because the deponent of the affidavit does not purport to say that the contents of the valuer's report were true to his own knowledge. In this connection, the decision of the Supreme Court in Ramji Dayawala and Sons (P) Ltd. Vs. Invest Import, AIR 1981 SC 2085 is apposite. It lays down: Undoubtedly, mere proof of the handwriting of a document would not tantamount to proof of all the contents or the facts stated in the document. If the truth of the facts stated in a document is in issue mere proof of the handwriting and execution of the document would not furnish evidence of the truth of the facts or contents of the document. The truth or otherwise of the facts or contents so stated would have to be proved by admissible evidence, i.e., by the evidence of those persons who can vouch-safe for the truth of the facts in issue. 16. Under Order XIX, Rule 3 CPC an affidavit in order to provide admissible evidence of the contents of a document must be of the person who can prove the contents to his own knowledge. In other words, the affidavit of a person who says that the executant of a document signed it in his presence, cannot be treated as admissible for the purpose of establishing the truth of the contents of the document. 17. In Katiyar's case (supra) it was observed that the proceedings under the Act before the Prescribed Authority are not strictly governed by the provisions of the Code of Civil Procedure, the Evidence Act or the Transfer of Property Act. Section 38 makes the provisions of the CPC and the Transfer of Property Act applicable except in so far as they may be inconsistent with the provisions of the Rent Control Act. The consistent provisions of these two Acts will hence apply to the proceedings under the Rent Control Act. Section 38 makes the provisions of the CPC and the Transfer of Property Act applicable except in so far as they may be inconsistent with the provisions of the Rent Control Act. The consistent provisions of these two Acts will hence apply to the proceedings under the Rent Control Act. So far as the Evidence Act is concerned, the position is that Section 38 does not exclude its applicability. Section 1 of the Evidence Act provides that it applies to all judicial proceedings in or before any court..., but not to affidavits presented to any court or Officer nor to proceedings before an arbitrator. Section 3 of the 'Evidence Act defines the term 'Couit' to include all Judges and Magistrates, and all persons, except arbitrators, legally authorised to take evidence. The authorities under the Rent Control Act are . specifically authorised by Section 34 to take evidence. The proceedings before these authorities are judicial proceedings, vide Section 34(2) of the Act. Thus, prima facie, the Evidence Act applies to proceedings under the Rent Control Act. But as expressly mentioned in Section 1 of the Evidence Act, the provisions of the Evidence Act do not apply to affidavits presented to any Court or Officer. The provisions of the Evidence Act will hence not apply to the validity or admissibility of affidavits that may be filed before the authorities under the Rent Control Act. The affidavits will in view of Section 34(1)(b) and 34(6) have to fulfil the requirements of the CPC in relation to affidavits. 18. In Motilal Chajjoolal v. Prescribed Authority, Kanpur 1978 RCC 289 it was, in similar circumstances, held that the report of a surveyor was, in the absence of his own affidavit, inadmissible. 19. Mr. B.C. Dey, learned Counsel for the Respondents, invited our attention to D.C. Misra v. II Additional District Judge Kanpur 1980 ARC 116. In this case it was observed by a learned Single Judge that proceedings u/s 21 of the Rent Control Act are not judicial proceedings and, therefore, the Evidence Act does not apply. We are unable to agree with this passing observation. 20. To recollect, the question of law referred was: Whether the report of the valuer in the instant case was admissible in evidence notwithstanding the fact that the valuer had not filed his own affidavit proving his report ? In our opinion, the answer is in the negative. 21. We are unable to agree with this passing observation. 20. To recollect, the question of law referred was: Whether the report of the valuer in the instant case was admissible in evidence notwithstanding the fact that the valuer had not filed his own affidavit proving his report ? In our opinion, the answer is in the negative. 21. Let the papers of the case be placed before the learned Single Judge with this opinion and answer.