J.B Kansal v. Waryam Singh .

Sultan Singh, J.:— This is a revision petition by the tenant under Section 25B(8) of the Delhi Rent Control Act (hereinafter called ‘the Act’) challenging the order dated 28th January, 1978 passed by the Additional Controller. By the impugned order the Controller dismissed the application for leave to contest and passed the eviction order under Section 14(1)(e) of the Act. The respondent, Waryam Singh, filed a petition for eviction of the Petitioner, J.B Kansal, under Section 14(1)(e) read with Section 25B of the Act. The summons as prescribed by the Third Schedule of the Act was served upon the tenant on 14th March, 1977. He made an application for leave to contest supported by an affidavit on 21st March, 1977. This affidavit contains the verification in the following form:

“Verification:

Verified at Delhi this 21st day of March, 1977 that the contents of the above affidavit are true to my knowledge and correct to my belief”.

2. At the time of arguments before the Additional Controller, an objection was raised that the verification in the affidavit was not in accordance with law and as such it should be rejected.

3. The petitioner-tenant on 7th November, 1977 filed an application under Section 151 of the Code of Civil Procedure (hereinafter called ‘the code’) alleging that by inadvertance the words “and correct to my belief” have been written at the end of the said verification of that affidavit. He therefore prayed that the said words may be deleted and ignored. He also filed an additional affidavit sworn on 7th November, 1977 containing identical facts narrated in the affidavit dated 21st March, 1977 but deleting the said words “and correct to my belief” from the verification. The Additional Controller by the impugned order held that the verification was not in accordance with law and therefore rejected the first affidavit dated 21st March, 1977. He also did not allow the amendment of the verification in the original affidavit on the ground that no amendment of the affidavit can be allowed. Consequently the application for leave to defend was dismissed and an order of eviction was passed. Hence this revision by the petitioner-tenant.

4. The revision was admitted on 28th March, 1978. The petitioner, J.B Kansal died on 15th October, 1979. His widow and son made an application C.M No. 65 of 1980 dated 7th December, 1979 for their substitution. Notice of this application was issued to the respondents for 12th May, 1980 but it appears that no further action was taken on this application. Mr. Hari Shanker, learned counsel for the respondent has no objection if this application is allowed subject to all just exceptions. Accordingly, the application, C.M No. 65 of 1980 is allowed subject to all just exceptions. The names of the widow and son i.e Smt. Kaushalya Rani Kansal and Deepak Raj Kansal widow and son of the deceased are ordered to be substituted in the memo of parties. Office may make necessary corrections in the memo of parties accordingly.

5. Mr. Bhatia, learned counsel for the petitioner contends that by inadvertance the words “and correct to my belief” in the verification of the affidavit were written, that no prejudice is going to be caused to the opposite party if these words are either allowed to be deleted or his clients are per mitted to file a fresh affidavit in support of the application for leave to defend filed on 21st March, 1977. He says that if these words are deleted the original affidavit dated 21st March, 1977 would be in accordance with Order 19 Rule 3 of the Code. Rule 3 of Order 19 of the Code reads as under:

“Rule 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.

(2) The costs of every affidavit which shall unnecessarily set forth matters of hearsay or argumentative matter, or copies of or extracts from documents, shall (unless the Court otherwise directs) be paid by the party filing the same”.

6. According to this provision, affidavits are required to confine to facts which the deponent is able to prove of his own knowledge. In the case of interlocutory applications statements based on belief may also be made by the deponent provided the grounds of such belief are mentioned therein. Mr. Bhatia says that an application for leave to contest is an interlocutory application in eviction proceedings, meaning thereby that this is an interim application for obtaining the leave to defend the eviction application and after obtaining the leave the main eviction application is to be decided in accordance with law. On the contrary, the learned counsel for the respondent submits that the application for leave to defend is not an interlocutory application but it is a substantive application as the decision of this application has two consequences; (i) if the application is rejected the order of eviction is consequently passed. In this way such an application according to him is a substantive application and not an interlocutory application. The other consequence is when this application for leave to contest is allowed and the eviction application is treated like any other eviction application. In that sense the application for leave to defend may be treated as an interlocutory application. I am of the view that if this application is allowed and final proceedings are to take place on the eviction application, such an application for leave to contest will be an interlocutory application and not substantive application. This application only determines whether the tenant should be granted leave to defend.

7. The next question is what should be the contents of the affidavit. Mr. Bhatia says that the affidavit is required to be verified by the deponent with regard to the facts true to his own knowledge. The learned counsel for the respondent however states that under the Rules and Orders of the Punjab High Court contained in Vol. IV Chapter 12-B Rules 9 and 15, the form of oath in an affidavit is as follows:

“I solemnly swear that this my declaration is true, that it conceals nothing, and that no part of it is false so help me God!” In those rules, the form of affirmation is as follows:

“I solemnly affirm that this my declaration is true, that it conceals nothing, and that no part of it is false.”

8. Under this form of verification a deponent has to declare the facts to be true and also that the affidavit conceals nothing and no part of it is false. Under Rule 3 of Order 19 of the Code the only requirement is whether the facts are true to his knowledge and if the facts are based on belief, then the source of information is to be disclosed i.e ground of belief is to be stated. These rules have been made by the Punjab High Court and are applicable to this court. It therefore appears that an affidavit filed in the Union Territory of Delhi where the rules contained in Vol. IV Chapter 12-B of the Rules and Orders of the Punjab High Court are applicable, the verification of the affidavit should be in the form as given in the said rules. Mr. Bhatia, learned counsel for the petitioner states that this objection was never taken before the Additional Controller and that for the first time it has been taken in this Court. He refers to the application dated 7th November, 1977 filed by the petitioner in the trial court for amendment of the affidavit and for leave to file the additional affidavit. Be that as it may, the question in short is what is the effect, when admittedly the original affidavit dated 21st March, 1977 is not in accordance with law because it verifies the facts contained in the affidavit true to knowledge and correct to belief. Learned counsel for the respondent submits that a valuable right has accrued to the respondent by the failure of the petitioner to file an affidavit in accordance with the requirement of law and therefore the petitioner-tenant should not be permitted either to amend the original affidavit or to file an additional affidavit. The Supreme Court in Jai Jai Ram Manohar Lal v. National Building Material Supply, Gurgaon, (1969) 1 SCC 869 : A.I.R 1969 S. C. 1267 has observed, “Rules of procedure are intended to be a handmaid to the administration of justice. A party cannot be refused just relief merely because of some mistake, negligence, inadver-tance or even infraction of the rules of procedure. The court always gives leave to amend the pleading of a party, unless it is satisfied that the party applying was acting mala fide, or that by his blunder, he had caused injury to his opponent which may not be compensated for by an order of costs. However, negligent or careless may have been the first ommission, and, however, late the proposes amendment, the amendment may be allowed if it can be made without injustice to the other side”. It is now settled law that there is power to allow amendment if injustice is not caused to the opposite party and the other party can be compensated with costs. In the present case, however, the question is whether an affidavit can be allowed to be amended subsequently. The affidavit which has been sworn before the Oath Comissioner is not a pleading but evidence and cannot be allowed to be amended. The parties can however be permitted to file additional affidavit removing the defect. In the present case, Mr. Kansal who sworn the affidavit dated 21st March, 1977 is dead leaving behind the widow and a son. They can be permitted to file an additional affidavit. The curx of the question therefore is when an affidavit which was not in accordance with law in support of the application for leave to defend, is rejected by the court whether the deponent or an body else on his behalf can be allowed to file a fresh affidavit although time for leave to file the affidavit has expired. In the case before me, application for leave to defend supported by a detailed affidavit containing all the allegations of the fact identical to the facts disposed in the leave application was filed. The only defect pointed out is about the verification. It seems to me that if the affidavit is not properly verified the parties must be allowed an opportunity to file an affidavit in accordance with law. It would not prejudice the right of the respondent. It appears that Mr. Kansal verified the affidavit inadvertantly. It is so stated in his application dated 7th November, 1977. No reply was filed on behalf of the respondent before the Additional Controller. It might be an inadvertant mistake. I am doubtful whether Mr. Kansal understood the distinction between the words ‘knowledge’ or ‘belief. To me it appears that it is a very formal and technical defect. Under Order 19 Rule 3 of the Code the deponent is required to state which paragraphs are true to his knowledge and which paragraphs are true to his belief and to disclose the source of information. It does not appear that this defect arose by any deliberate attempt on the part of Mr. Kansal. It also seems to me that the person who drafted or who filed the application for leave to contest and the affidavit did not take care whether the affidavit was in accordance with law or not. In any case when a defective affidavit is filed, and the defect is only to the extent that it doss not contain a proper verification and if the affidavit is allowed to be verfied in accordance with law, no prejudice is likely to be verified in accordance with law, no prejudice is likely to be caused to the opposite party. On account of procedural defect or technical defect, a party should not be non-suited. The Rent Control Act is for the protection of the tenant. If on this technical defect his application for leave to contest is thrown away it would cause him the greatest injustice. Then law requires that he should be protected if the protection is available’ under law. In Gurditta Mal v. Bat Sarup, 1980 Raj. Law Reporter 136 and Jagdish Pershad… v. Smt. Phoolwati Devi…., 1980 Raj. Law Reporter 367 this court has observed that the Additional Controller has inherent powers. These are cases of application for leave to contest. Thus it seems to me that the Additional Controller could have allowed the petitioner, tenant to file a fresh affidavit removing the defect in the verification. But he took the view that the provision for filing affidavit within a period of 15 days is mandatory and that time cannot be extended under any circumstances. I do not agree. It appears to me that if there was defect in the verification made inadvertantly by Mr. Kansal, be ought to have been Ranted an opportunity to file a fresh affidavit in accordance with law. Under these circumstances, I am of the view that the order passed by the Additional Controller is not in accordance with law. I, therefore, set aside the sajne. I direct the petitioners who are heirs of Kansal to file additional affidavit in support of the application for leave to contest dated 21st March, 1977 before the Additional Controller by the next date of hearing. Parties are directed to appear before the Additional Conttoller on 2nd December, 1980. After the filing of the additional affidavit the respondent may file a counter-affidavit. The eviction petition was filed in February, 1977. Its disposal may be expedited and decided within a period of eight months, if possible. The petitioner shall pay Rs. 200/- as costs to the respondent on the next date for filing additional affidavit. There will be no order as to costs in this revision petition.

9. Revision allowed.