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Case Number

W.P No. 1020 of 2008

Attorney(S)

A.S Killor
A. Shelat

Judges

A.H Joshi, J.

Acts

Act, 1969 read with Rules 4 and 5 of Order XIV,
Rule 4 of Order 18 of Civil Procedure Code.27.
Rule 4 of Order 18 of Civil Procedure Code
SECTION 99 CIVIL PROCEDURE CODE
Rule 5 of Order 18

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Smart Summary

Structured Summary of the Opinion

Factual and Procedural Background

The landlord (respondent) sought eviction of the tenant on the ground of bona fide personal requirement. The trial court decreed the suit. The tenant appealed; the appeal was dismissed by order dated 31-12-2003. The tenant then filed the present petition before this Court. The respondent-landlord was present by caveat. A rule was issued and made returnable forthwith. Learned Advocate Mr. Shelat waived service for the respondent. The tenant's petition contended, inter alia, that (1) the landlady filed an affidavit of oral evidence but did not prove the same in evidence (relying on FDC Ltd. v. Federation of Medical Representatives (2003 (3) Mh. L.J 327)); (2) the landlady did not examine her sons to prove their need for the premises though she deposed that the premises were required by her two sons (both doctors) for a hospital; and (3) it was not shown that the small room in the tenant's possession was genuinely required when much of the ground floor was already in possession of the landlord's sons.

Legal Issues Presented

Whether an affidavit filed as the plaintiff's examination-in-chief, without formal reiteration/confirmation of the affidavit by the witness in the witness box (signature and contents being formally proved), is admissible and can be treated as the witness's examination-in-chief in a case where an appeal lies by law (issue raised with reference to FDC Ltd. v. Federation of Medical Representatives).
Whether the landlord proved bona fide personal requirement for eviction—specifically, whether the landlord's two sons genuinely required the premises (including a small 10 × 10 ft room) for hospital/operation theatre purposes.
Whether the tenant established hardship or lack of alternative accommodation sufficient to defeat the eviction claim on the ground of bona fide personal requirement.

Arguments of the Parties

Tenant's (Petitioner's) Arguments

The landlady filed an affidavit of oral evidence but did not prove the signature and contents of the affidavit in her evidence; relying on FDC Ltd. v. Federation of Medical Representatives (2003 (3) Mh. L.J 327), the tenant contended that the affidavit is not evidence and must be ignored.
The landlady deposed about the need of the suit shop block for her two sons (doctors) who allegedly required the shop for their hospital, but the landlady did not examine either son to prove this need; the evidence of the landlady (Preetam Kaur) was said to be neither sufficient nor satisfactory.
The tenant argued that it was not proved that the small room (10 × 10 ft.) in his possession was genuinely needed for the sons' hospital when, according to the tenant, the entire ground floor (except two shop blocks) was already in possession of the sons who were conducting business there.
The tenant also asserted that he had paid rent for which no rent receipts were issued by the landlady (fact asserted by tenant in petition).

Landlord's (Respondent's) Arguments

The objection based on the FDC Ltd. decision was a "chance submission" raised after the case was already heard and decided; the point was not raised in the trial Court and, though taken in the appeal memo, is not shown to have been pressed in the Appellate Court.
The affidavit was tendered as the plaintiff's examination-in-chief; the plaintiff did step into the witness box, was administered oath and was cross-examined on the foundation of the affidavit without any objection that the affidavit had not been formally confirmed or reiterated as the plaintiff's examination-in-chief.
The affidavit was sworn and verified pursuant to the Oaths Act, and Rules 4 and 5 of Order XIV (referred to in the opinion as Rule 4 and Rule 5 of Order 18/Order XIV interchangeably), so the affidavit should be read and given appropriate value as an affidavit of examination-in-chief.
The defendant (tenant) having cross-examined the witness on the basis that the affidavit was examination-in-chief is estopped from now raising an objection to its validity.
In view of section 99 of the Civil Procedure Code, the alleged defect does not go to the root of the case, does not vitiate the judgment, and ought not to be entertained.
The ground in the memo of appeal concerning validity and reiteration of oath was not pressed as a ground of appeal and thus the landlord was denied an opportunity to meet and rectify the objection at the earliest occasion.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
FDC Ltd. v. Federation of Medical Representatives, 2003 (3) Mh. L.J 327	The requirement that an affidavit filed as examination-in-chief must be proved in evidence by the witness confirming signature and contents; absence of such proof renders the affidavit not evidence.	The Court considered FDC Ltd. but held that where the witness is before the Court, is administered oath and is cross-examined on the foundation that the affidavit is the examination-in-chief, the formal reiteration is a matter of form. The Court treated the objection as procedural and, on the facts (oath on record, cross-examination without objection), found substantial compliance so as not to vitiate the testimony contained in the affidavit.
Ameer Trading Corpn. Ltd. v. Shapoorji Data Processing Ltd., (2004) 1 SCC 702 (AIR 2004 SC 355)	Referenced by the petitioner (exact principle relied on is not elaborated in the opinion).	The opinion records that this judgment was relied upon by the petitioner, but the Court's decision does not elaborate or apply this case beyond noting that it was cited.
Shaikh Salim Haji Abdul Khayumsab v. Kumar, (2006) 1 SCC 46 (referred as 2006 (1) Mh. L.J (SC) 178)	The Court cited observations that procedural principles should not obstruct administration of justice; the Supreme Court approved the view taken in FDC Ltd. but directed that Rule 4 be read with Rule 5 in appellate cases so that witnesses be called for cross-examination and recorded in the manner prescribed in Rule 5.	The Court relied on this precedent to justify that where the witness was called and cross-examined, Rule 5 of Order 18 was substantially complied with and that the absence of a formal reiteration of the affidavit did not nullify the testimony if oath was on record and cross-examination occurred without objection.

Court's Reasoning and Analysis

The Court proceeded by separating the issues and examining the central procedural objection first (the affidavit issue). The sequence of analysis as explicitly set out in the opinion is:

The Court noted the parties' competing factual assertions: the petitioner contended that the landlady filed an affidavit but did not step into the witness box to confirm it (signature and contents), whereas it was also recorded as common ground in the proceedings that in appeals where evidence by affidavit is permitted the plaintiff had stepped into the witness box and was cross-examined on the foundation of the affidavit.
The petitioner relied primarily on the FDC Ltd. judgement to argue that an affidavit not formally proved by the witness ought not to be treated as evidence. The petitioner also relied on two other judgments including Ameer Trading and Shaikh Salim.
The respondent countered with multiple submissions: that the objection was raised late (a chance submission), that no objection was taken at trial when the affidavit was used as examination-in-chief and the witness was cross-examined, that the affidavit was sworn under the Oaths Act and in terms of Rules 4 and 5, that the tenant was estopped from objecting after cross-examination, and that section 99 CPC covers such defects as not going to the root of the case.
The Court accepted that the sanctity of an oath cannot be brushed aside as merely procedural, but observed that the present case did not present an absence of oath; rather, the affidavit bore an oath on record and the witness had been cross-examined on the affidavit as examination-in-chief without objection being taken.
The Court relied on the Shaikh Salim decision which, while upholding the view in FDC Ltd., emphasized that Rule 4 must be read with Rule 5 in cases where an appeal lies: once the witness is called for cross-examination, Rule 5 of Order 18 is substantially complied with. Applying that reasoning, the Court held that where the witness was in fact before the Court, administered oath and cross-examined on the foundation that the affidavit was the examination-in-chief, the failure to elicit a formal reiteration of the affidavit in further examination-in-chief is a deficiency of form rather than substance.
The Court concluded that where the affidavit went on record unobjected and was the basis for cross-examination, the defect in not formally showing the signature and obtaining confirmation was procedural and did not nullify the testimony contained in the affidavit. The presence of oath on the affidavit satisfied the requisite compliance envisaged by Rule 4 of Order 18 (as construed with Rule 5), and therefore the affidavit could be read as the examination-in-chief.
On the merits of the eviction claim (bona fide personal requirement and hardship), the Court accepted the Appellate Court's findings: the Appellate Court had examined the nature of need and found that the two sons required the premises for an operation theatre and that the landlord was the best judge of her requirements. The Appellate Court also found that the tenant had not proved efforts to find alternate accommodation and had independent accommodation for residence; these factual findings were not shown to be perverse or contrary to record and thus were not open to challenge in the writ petition.
Having found the procedural objection to be without merit on the facts, and with the Appellate Court's factual findings intact and unchallenged as perverse, the Court dismissed the petition and discharged the rule.

Holding and Implications

Final Holding: The petition is dismissed and the rule is discharged.

Direct consequences for the parties:

The dismissal affirms the eviction decree as sustained by the Appellate Court: the bona fide personal requirement and hardship findings in favour of the landlord remain undisturbed on the record before this Court.
The petitioner (tenant) was granted one week within which to make an application for time to vacate, upon giving a standard undertaking; the learned Advocate for the respondent agreed to stay execution of the decree for a period of one week.

Broader implications:

The opinion applies and reconciles the procedural requirement in FDC Ltd. with the approach endorsed in Shaikh Salim that Rule 4 and Rule 5 must be read together in appellable cases, and it treats the absence of formal reiteration of an affidavit as a deficiency of form (not substance) where the witness has been sworn and cross-examined on the affidavit without objection. The opinion does not purport to lay down a novel legal precedent beyond applying these authorities to the facts of the case; consequently, the direct practical effect is limited to the parties involved and the Court noted no broader change in law in the text of the opinion.

Disposition in the original opinion: "Petition dismissed." (Rule discharged). The Court also recorded administrative directions regarding an application for time to vacate and a one-week stay of execution by agreement between counsel.

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Dilip v. Pritam Kaur

1. The respondent-landlord is present by caveat.

2. Rule. Rule is made returnable forthwith.

3. Learned Advocate Mr. Shelat waives service for the respondent.

4. The landlord sought eviction on the ground of bona fide personal requirement, and the suit has been decreed.

5. The tenant preferred the appeal, which has been dismissed by order dated 31-12-2003.

6. The tenant is before this Court filing the present petition. The tenant's contention as seen from the petition are as follows:

(1) The landlady filed her affidavit of oral evidence but did not prove the same in her evidence. It was mandatory to prove the signature and contents of affidavit and if that is not proved her affidavit is not evidence and has to be ignored as laid down in the case of FDC Ltd. v. Federation of Medical Representatives, reported in 2003 (3) Mh. L.J 327.

(2) The Landlady has deposed in her affidavit about need of the suit shop block in possession of the tenant for her two sons who are Doctors and are lucrative practice. They required the shop premises for their Hospital. The plaintiff has not examined any of her son to prove their need and the evidence of the landlady Preetam Kaur neither sufficient nor satisfactory to prove the need of her son. The landlady never issued rent receipt for the rent received and it is the case of the tenant that he had paid the rent to the landlady for which no receipt was given to him by the landlady.

(3) It is not proved that the landlady really needed the small room measuring 10 × 10 ft. in possession of the tenant for the Hospital purpose of her son, when in fact, the entire ground floor was in possession of her sons who are already doing business there.”

7. It would be convenient to deal with the factual grounds quoted as items (2) and (3) in the foregoing paragraph first in order, and are dealt with in the paragraphs to follow.

8. The First Appellate Court has discussed in paragraph 10 of the judgment at pages 42 and 43 of the paper book about bona fide personal requirement. The Court has dealt with the nature of need.

9. The Appellate Court has found and confirmed the finding that the plaintiff's two sons Dr. R.S Madan and Dr. Manmit Madan need the said premises for an Operation Theatre. The Court accepted the bona fide personal requirement in the background that though entire ground floor, except two shop blocks, including one with defendant which are in possession of tenants, the plaintiff has proved the need of one more room for using as Operation Theatre as the genuine need. The Appellate Court held that the landlord is the best Judge of his requirements.

10. The finding of fact recorded in para 10 of the judgment of Appellate Court is challenged on the ground of lack of adequacy of evidence.

11. The findings are not challenged on the ground of perversity or failure to consider any evidence, the question of bona fide personal requirement, and need of eviction on that ground is duly proved.

12. So far as the second aspect of hardship is concerned, the first Appellate Court has discussed this aspect, and recorded a finding in paras 11 and 12 that the tenant has not proved that he has made any efforts to seek any alternate accommodation. Moreover, admittedly, the defendant's brother also does the same business. The defendant has independent accommodation for his residence, and considering this aspect, the Appellate Court recorded a finding that the aspect of hardship also favours the landlord and not the tenant. The finding of fact on this point is not shown to be contrary to record. Tenor of submissions does not reveal that any serious challenge is made to this finding.

13. So long the findings are not challenged as perverse or otherwise illegal, the question of sufficiency of evidence is not open for challenge in a writ petition.

14. Moreover, these grounds are not seriously pressed as much as first point discussed hereinafter has been pressed.

15. The first point noted in para No. 6 above relied upon by the petitioner is analysed for convenience as follows:—

(a) The plaintiff has tried to prove her case by filing affidavit as examination-in-chief.

(b) After production of affidavit, the plaintiff has not stepped into the witness box to state that the said affidavit is signed by her, drafted and drawn as per her instructions.

(c) In absence of this compliance, the said affidavit is not an evidence worthy of consideration as evidence at all, since the present is a case where the appeal is permitted by law. This step or stage was mandatory in view of the reported Judgment in case of FDC Ltd. v. Federation of Medical Representatives, reported in 2003 (3) Mh. L.J Page No. 327.

16. Learned Advocate for the petitioner then relied upon two reported judgments as namely:—

(1) (2004) 1 SCC 702 : AIR 2004 SC 355, Ameer Trading Corpn. Ltd. v. Shapoorji Data Processing Ltd.. (2) 2006 (1) Mh. L.J (SC) 178 : (2006) 1 SCC 46, Shaikh Salim Haji Abdul Khayumsab v. Kumar.

17. It is a common ground that the suit being one where appeal was provided by law, the trial Court had allowed the evidence by affidavit, the plaintiff had stepped into the witness box and she was cross-examined on the foundation of the affidavit to be her examination-in-chief.

18. The objection raised by the present tenant in the present petition has been answered by the respondent by urging the following submissions:

(a) The objection based on the judgment in case of FDC Ltd. (supra) is a chance submission since when the case was already heard and decided. This point was not available to the petitioner as the field was not governed by the said judgment. However, on facts, it is clear that this objection was not raised in trial Court. It was taken in Appeal Memo, but it is not shown that it was pressed in Appellate Court.

(b) When the affidavit was tendered as evidence, as the examination-in-chief of the plaintiff, she had stepped into the witness box was administered oath and was cross-examined on the basis of the said affidavit. This was done without any grudge or demur or without raising any objection that the witness had not formally confirmed or reiterated the contents of the affidavit, which was the plaintiff's examination-in-chief.

(c) The affidavit was sworn and verified furtherance to the provision of Oath Act, and therefore, though the formal confirmation or reiteration could be considered to be necessary, in view of case of FDC Ltd. (supra), nevertheless, the sanctity attached to the oath under Oaths Act, 1969 read with Rules 4 and 5 of Order XIV, confers upon the said affidavit the appropriate value of being read as an affidavit of examination-in-chief.

(d) The defendant had cross-examined the witness on the said affidavit on the foundation that affidavit was examination-in-chief, without any grudge and demur and in the result, is now estopped from raising this objection.

(e) In view of mandate of section 99 of the Civil Procedure Code, the defect does not go to the root of the case, does not vitiate the judgment, and ought not be entertained.

(f) The ground No. 9 in the memo of appeal raising the ground of validity and legality of oath, and formally reiterating the contents was not pressed as a ground of appeal thereby the landlord was denied an opportunity to meet this objection and rectify or overcome the same at an earliest occasion.

19. Learned Advocate for the respondent Shri Shelat strongly relies on the observations contained in para 9 and para 14 of the judgment in case of Shaikh Salim Haji Abdul Khayumsab v. Kumar, urging that ‘the procedural principles are hand made and not the mistreous lubricant, not a resistance in the administration of justice’.

20. The fact of oath is even not denied. The objection based on FDC Ltd., case is that the oath has not been reiterated. It is not a case where there is total absence of oath. Had it been a case of said nature, the objection would not have been just procedural. This Court, therefore, considers that the sanctity of oath cannot be brushed aside as a procedural matter, yet on facts admittedly, it is a case where any objection is not raised at any stage as to oath being properly administered.

21. After considering the respective submissions, this Court finds that the ground of objection raising the question of legality or correctness of finding that petitioner's ground of objection is a procedural matter, is the ground now raised by the petitioner as a chance submission based on judgment in case of FDC Ltd. (supra). Moreover, the Hon'ble, Supreme Court in case of Shaikh Salim Haji Abdul Khayumsab v. Kumar (cited supra), while putting a seal of approval on the view taken on FDC Ltd., case, has also considered that Rule 4 will have to be construed in joint reading with Rule 5 in appellable cases meaning thereby that the witnesses will have to be called for cross-examination and it be recorded in such manner prescribed in Rule 5. Once the witness is called for cross-examination, Rule 5 of Order 18 gets substantially complied with.

22. Therefore, the stage of need of witness coming into the witness box to assert and confirm own affidavit shall be rendered odious once the witness steps into the witness box, is administered bath and opposite party cross-examines the witness on the foundation that contents of the affidavit in the examination-in-chief, even in absence of exploration of formal confirmation and reiteration from the witness.

23. In the situation like in present case where the witness, parties and the advocates proceed on assumption that the affidavit has been allowed to go on record un-objected as examination-in-chief, the deficiency of formal confirmation of affidavit to be one of the witnesses own, becomes a deficiency of ‘form’ than of content.

24. As the affidavit has gone on record un-objected, it now becomes an objection as to the deficiency in complying with the need of showing to the witness the signature on the affidavit, and have it confirmed from him.

25. The need of reiteration in terms of the observation contained in the FDC Ltd., case cannot be applied with the same rigour and in retrospective operation as its substantial compliance will be deemed to have been done once the witness is before Court, is administered oath and is cross-examined on a foundation that the affidavit in Examination-in-chief is filed furtherance to Rule 4 of Order 18 of Civil Procedure Code without raising any objection. The failure to elicit from him that it is his affidavit by way of further examination-in-chief does not vitiate, destroy or nullify his testimony contained in said affidavit.

26. In the present case, the fact of existence of oath on record on the affidavit relied upon for the purpose of evidence by the plaintiff answers and satisfies the requisite compliance of the said affidavit being considered as “affidavit” of examination-in-chief within the connotation of the term as contemplated by Rule 4 of Order 18 of Civil Procedure Code.

27. In this background, the point now raised, and urged before the Court does not merit any weightage. The petition has no merit, it is dismissed. Rule discharged.

28. At this stage, the learned Advocate for the petitioner Shri A.S Killor prays for time to vacate. The petitioner is free to make an application for time to vacate by giving standard undertaking. One week time is granted for furnishing such application, and move it before this Court.

29. Learned Advocate for the respondent Shri Shelat agrees to stay hand and not to execute the decree for a period of one week.

Petition dismissed.

Dilip v. Pritam Kaur

Structured Summary of the Opinion

Factual and Procedural Background

Legal Issues Presented

Arguments of the Parties

Tenant's (Petitioner's) Arguments

Landlord's (Respondent's) Arguments

Table of Precedents Cited

Court's Reasoning and Analysis

Holding and Implications

Dilip v. Pritam Kaur

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