L. Banerjee vs Dipak Dutta Choudhury

P.N. Mookerjee, J.—On May 4, 1949, the Appellant landlady instituted the present suit for ejectment of the tenant Defendant from the disputed premises, comprising inter alia, the "entire first floor and south west room of the ground floor of "Premises No. 8/1, New Boad, Calcutta". In the suit there was also a claim for damages or mesne profits against the Defendant.

The suit was instituted after service of the usual notice to quit and upon the allegation, inter alia, that the suit premises were required by the Plaintiff bona fide for her own use and occupation as contemplated in Section 11(i)(f) of the Rent Control Act of 1948 which was then in force. On receipt of summons the Defendant duly appeared in the suit and he vehemently contested the Plaintiff''s claims.

On November 24, 1949, several issues were framed and, on the Plaintiff''s petition, the court fixed January 4, 1950, for the hearing of the issue of bona fide requirement as a preliminary issue as laid down in Section 17 of the Rent Control Act of 1948. This issue was actually taken up for hearing on March 24, 1950 and, in the meantime, both parties had filed affidavits and also various documents and they had also cited and summoned witnesses.

The preliminary issue was heard on two dates, viz., March 24, 1950 and March 27, 1950, when witnesses were examined and documents were tendered in evidence and marked exhibits. On this latter date, the parties closed their respective cases and March 29, 1950, was fixed for arguments on the preliminary issue. Unfortunately, however, the arguments could not be finished and the hearing of the preliminary issue could not be concluded, before March 30, 1950, on which date the Rent Control Act of 1950 came into force and the earlier Rent Control Act of 1948- and along with it Section 17 of the said Act-stood repealed. This change of law has led to certain complications in the present case and the effect of this change on the subsequent proceedings in the Plaintiff''s suit is the matter for consideration in the present appeal.

On March 29, 1950, which, as already stated, was the date fixed for arguments on the preliminary issue, as required by the Rent Control Act of 1948, then in force, the Defendant''s arguments were heard in part and, on the joint prayer of the parties, the case was adjourned to April 5, 1950, for further arguments. Meanwhile, on March 30, 1950, the Rent Control Act of 1950 had come into force and, on the date fixed, namely, April 5, 1950, the court recorded an order which runs inter alia as follows:

* * * I fix April 10, 1950, for final hearing of the suit on all the issues.

Parties will be at liberty to adduce further evidence. There will be no judgment u/s 17 of the repealed Act. The Defendant will be permitted to file an additional written statement in view of the new Act * * * *

On April 25, 1950, the Defendant filed an additional written statement and the case was fixed for peremptory hearing on May 2, 1950. After two adjournments the case was taken up for hearing on May 22, 1950, when "further evidence" was taken and the Plaintiff and the Defendant who had already deposed at the time of hearing of the preliminary issue u/s 17 of the Rent Control Act of 1948, since repealed, were further examined and cross-examined and some more documents were exhibited by the parties. On this "further evidence" and on the evidence, taken earlier on March 24 and 27, 1950, at the time of hearing of the preliminary issue, and the affidavits filed by the parties in that connection, arguments were heard on several dates and, thereafter, on June 14, 1950, the court decreed the suit in part, namely, as to the claim for ejectment, by its judgment of that date. The Plaintiff''s claim for damages or mesne profits was dismissed as it was not pressed at the trial, it having been found that the Defendant had been regularly depositing ''rent'' under the relevant Rent Control Law.

The Defendant appealed before the learned District Judge, 24-Pargands, who, by his judgment, dated November 20, 1952, allowed the Defendant''s appeal and set aside the decree of the trial court upon the view that the affidavits, filed at the time of hearing of the preliminary issue, ceased to be legal evidence on the repeal of the Rent Control Act of 1948 and the decision of the trial court, based on those affidavits, which had meanwhile, as held by the learned Judge, become legally inadmissible in evidence or inadmissible in law as evidence, could not be sustained. The learned Judge further found that, if the affidavits be excluded, there would not be enough evidence to support the Plaintiff''s claim, but, as lie felt that, in the circumstances of the present case, it would not be just or proper to decide the suit only on the other materials on record he sent the case back to the trial court with a direction that the affidavit evidence be expunged and the suit be retried "on fresh evidence on all points". The propriety of this decision is now challenged by both the parties. The Plaintiff has appealed and the Defendant has filed a cross-objection.

In my opinion, in the facts and circumstances of the present case, the judgment of the learned District Judge, rejecting or excluding the affidavit evidence and setting aside the trial court''s decision on the ground that the said evidence ought to have been discarded, cannot be supported. It appears from the record that the witnesses who swore the affidavits in question were examined at the time of hearing on the preliminary issue and two of them, namely, the Plaintiff and the Defendant, were also recalled for further examination at the time of the final hearing of the suit. It is true that, at the earlier examination, the affidavits were treated by the court and by the parties themselves as evidence in chief, and so far as the deponents were concerned, they were tendered for cross-examination and cross-examined and in some cases re-examined. It is true also that, to the above procedure and to the reception of the affidavits as evidence at that time, no objection could have been raised in view of Section 17 of the then prevailing Rent Control Act of 1948. But, even when the matter came up for final hearing after the repeal of the said Act, that is, for the hearing of the suit as a whole under the general law neither party objected to the reception of the earlier evidence (including the affidavits) for purposes of the final trial and both parties proceeded with the suit on the said evidence and "further "evidence", adduced under the court''s order, dated April 5, 1950, evidently treating the earlier evidence (including the affidavits) as evidence in the case. There is also nothing in the record to show or suggest even that, when the court passed its order, dated April 5, 1950, treating the affidavits as evidence for the final hearing, either party desired cross-examination of the deponents. All that appears on the record merely indicates that the Plaintiff wanted to be recalled for "further examination" on the other issues, and, similarly, the Defendant also applied later on to be recalled for "further examination". I am also fairly convinced that, if either party had objected at the time, the affidavit evidence would have been replaced by the usual vive voce examination of the deponents.

In the above state of facts, it seems to me that the defect or error, if any, in the proceedings before the trial court constituted or led to what may, at the worst, be termed an irregularity which was liable to be waived and was actually waived by the parties and which, in any event, was curable-and has been cured, in the circumstances of the present case,-by or u/s 99 of the CPC and the learned District Judge was not right in setting aside the judgment and. decree of the trial court on account of such error, defect or irregularity when it is fairly clear, from the materials before the court, that neither party was prejudiced thereby and there has been no failure of justice or, in other words, when the "error, defect or "irregularity" in the proceedings has not affected "the merits of "the case."

The Indian Evidence Act does not apply to "affidavits "presented to any Court" (vide Section 1). Affidavits, filed before a civil court, are governed by the CPC and they may be treated as evidence u/s 30(c) of the Code, read with Order XIX. Section 30(c) merely says that-

Subject to such conditions and limitations as may be prescribed, the Court may at any time, either of its own motion or on the application of any party, order any fact to be proved by affidavit.

The relevant "conditions and limitations" are to be found in Order XIX of the Code, of which Rule 1 regulates the reception of affidavit evidence in suits and substantive proceedings and Rule 2 applies to interlocutory applications or proceedings while Rule 3 deals with the matter or contents of the affidavits and lays down the requirements of law in relation to the same. For my present purpose Rule 1 alone requires consideration. Rule 2 has obviously no application here and, as to Rule 3, namely, to what extent the affidavits have been validly made in conformity with that rule and how far they can be relied or acted upon under the said statutory provision (Rule 3), I deem it proper, in the circumstances of this case, to leave that question to the lower appellate court for necessary consideration at the re-hearing which we shall presently order by this judgment.

Rule 1 of Order XIX which alone, as already stated, is relevant for our present purpose, runs as follows:

Any Court may at any time for sufficient reason order that any particular fact or facts may be proved by affidavit, or that the affidavit of any witness may be read at the hearing, on such conditions as the Court thinks reasonable.

Provided that where it appears to the Court that either party bona flde desires the production of a witness for cross-examination, and that such witness can be produced, an order shall not be made authorizing the evidence of such witness to be given by affidavit.

The terms of the rule make it perfectly clear that, practically speaking, subject to the proviso quoted, the court has a discretion to receive affidavit evidence, though, in the exercise of this discretion, it can receive affidavit evidence only "for sufficient "reason". In the present case, as we have already seen, neither party desired the production of the deponents for cross-examination at the time when the court by its order, dated April 5, 1950, effectively accepted the affidavits as evidence for purposes of the suit, not u/s 17 of the Rent Control Act of 1948 which was no longer there and which had been expressly put aside by the court, so far as the present suit was concerned, but obviously under its general powers or under the general law, namely, Order XIX of the Code. I am, accordingly, of the opinion that the proviso to Rule 1 of Order XIX cannot be attracted to the case before us and the court''s action, in admitting the affidavits as evidence, will have to be judged under the main part of that rule which, as already pointed out, leaves it to the discretion of the court to accept affidavit evidence "for sufficient reason". I am further of the opinion that, in the circumstances of this case, particularly when either party had full opportunity to cross-examine the deponents and when they had already taken full advantage of that opportunity and when neither party was objecting to the course-but they were rather consenting to it,-the court had "sufficient reason" to accept the affidavit evidence and its action was apparently fully covered and justified by the provisions of Order XIX, Rule 1. In the above context and in the particular facts and circumstances of this case I am prepared to hold that the court was not oblivious of-but had in mind-the provisions of Rule 1, Order XIX of the Code when it admitted the affidavit evidence by its order, dated April 5, 1950 and that it really acted at the time under the said rule and its action was well or sufficiently within the authority of its provisions. In any event, so it seems to me-the error, defect or irregularity, if any, committed by the court under that rule, was open to waiver and was actually waived by the parties and, as, on my findings, made above, there is no question of prejudice to either party or failure of justice, and thus no question of any error, etc. "affecting the merits of the case", the defect, if any, in the proceedings was certainly curable and has been cured by Section 99 of the Code. The decision of the Privy Council (Pulu Kuri Katayya v. King Emperor (1946) L.R. 74 IndAp 65: 51 C.W.N. (P.C.) 474: AIR (1947) P.C. 67 on the analogous Section 537 of the Code of Criminal Procedure may be cited to show that such provisions are to be liberally construed and that any and every breach of a procedural code, even though the particular prevision may appear to be mandatory in form, will not be fatal to the validity of the trial and will not render invalid the court''s ultimate decision and, in my view, the present case was fully covered by Section 99 of the Code of Civil Procedure.

It is necessary to refer to one other provision of the Code of Civil Procedure, namely, Order XVIII, Rule 4. That rule provides as follows:

The evidence of the witnesses in attendance shall be taken orally in open Court in the presence and under the personal direction and superintendence of the Judge.

The rule, however, should, in my view, he read subject to Section 30(c) and Order XIX of the CPC which permit affidavit evidence,-and no exception is made there in the case of witnesses in attendance (in court),-under certain circumstances, and, if, as I have held above, no valid objection can be raised in this case to the admission of the affidavits as evidence under Order XIX, Rule 1, no question of contravention of Order XVIII, Rule 4, will also arise. Even assuming, however, that there has been such contravention, the defect if any, is one of procedure only-namely, the manner in which evidence is to be taken,-and it is certainly curable and, as a matter of fact, has actually been cured in the present case by waiver and/or Section 99 of the Code.

I may add also that, even apart from the strict rule of waiver and/or Section 99 of the Code, the Defendant''s objection at the appellate stage to the affidavit evidence in the present case is barred by the well-known doctrine of "approbate and reprobate". The Defendant certainly gained time and thus obtained benefit by reason of his consent or non-objection to the reception of the affidavit evidence in the trial court and put the Plaintiff to considerable loss of time and money by such conduct and he cannot be permitted to turn round at the appellate stage to the utter prejudice of the Plaintiff (vide in this connection Bhaja Chowdhury v. Chuni Lal Marwari and Anr. (1906) 5 C.L.J. 95, 105; Bama Charan Chakrabarti v. Nimai Mondal (1921) 35 C.L.J. 58, 60-61 and (1933) L.R. 60 I.A. 266 (Privy Council) . On this ground, too, this appeal must succeed and the decision of the learned District Judge rejecting the affidavit evidence and the censequential order of remand, passed by him, must be set aside.

In view of the conclusions, already reached, it is unnecessary for me to consider the Appellant''s argument that, the affidavits having been made evidence in the case u/s 17 of the Rent Control Act of 1948, they did not cease to be evidence by reason of its repeal, in view of Section 8(2) of the Bengal General Clauses Act. I may state, however, that I am not impressed by this argument. Section 8(b) of the Bengal General Clauses Act will have no application in the matter. There was nothing "duly "done or suffered" under the repealed Act within the meaning of the said section and, as the law of evidence is essentially a law of procedure, if the affidavits were evidence only u/s 17 of the Rent Control Act of 1948, they would cease to be so upon it repeal and Section 8(b) of the Bengal General Clauses Act will not protect them. This argument, therefore, does not appear to be of much substance. The appeal, however, as already stated, succeeds on other grounds and I need not pursue this question further.

In the above view of the matter I hold that the decision of the learned District Judge cannot be supported and the case must go back to him for a re-hearing and a proper decision in accordance with law on the entire evidence on record (including the affidavit evidence) in the light of the observations I have made above. This appeal will, accordingly be allowed to that extent.

As to the cross-objection it is enough to say that, in view of the order, passed in the appeal, the cross-objection must fail. I may point out, however, that, even if the appeal had failed, I would have had little hesitation in dismissing the cross-objection. Having regard to the attitude of the Respondent in the trial court on the question of the affidavit evidence, it is clearly not open to him to contend that the affidavits should be rejected and the case should be tried out on the other evidence on record. There is little doubt that he also was largely responsible for the absence of the oral, or viva voce examination-in-chief of the deponents of the affidavits and he cannot be permitted at a later stage particularly when the suit has already been decided against him by the trial court, to take advantage of the absence of such examination. The cross-objection must, therefore, fail and it will be dismissed.

In the circumstances of this case, I would not make any order for costs either in the appeal or in the cross-objection.

SEN, J.: This Miscellaneous Appeal is directed against the order of Sri S.C. Chakravarty, District Judge, 24-Parganas, remanding Title Suit No. 82 of 1948 of the first court cf the Subordinate Judge, Alipore, for fresh trial according to law on fresh evidence on all points. The Plaintiff Mrs. L. Banerjee instituted the suit for ejectment of the Defendant, Dipak Dutta Chaudhury, from the premises located at No. 8/1, New Road, Alipore. The Defendant is in occupation of the whole of the first floor and a portion of the ground floor at the rent of Rs. 185 per month. The Plaintiff instituted the suit on May 4, 1949, alleging that she required the premises in occupation of the Defendant for her own bona fide use and occupation as she had to live in the house with her son who had been suffering from Paranoia and it was not possible for her to keep her son peacefully in the house if there was a portion of the house in occupation of the Defendant as a tenant. The suit was contested by the Defendant contending that the Plaintiff did not have bona fide requirement for the entire premises and that the three rooms in her occupation were sufficient for the needs of the Plaintiff and her son. The Defendant also questioned the sufficiency and validity of the notice.

The learned Subordinate Judge held that the notice served was valid and sufficient and that though normally a mother with an unmarried son would not require more than three rooms for her use and occupation, the case of the Plaintiff was different because her son was suffering from Paranoia, and for living in peace, it was necessary for the Plaintiff to obtain possession of the entire house. On these findings the learned Subordinate Judge decreed fhe suit in respect of the prayer for ejectment giving the Defendant six months'' time to vacate. This decree was passed on June 14, 1950.

The Defendant preferred an appeal to the District Judge, Alipore, and at the appeal the point was taken that the learned Subordinate Judge has wrongly used as evidence the affidavits which had been filed in the suit for determining the preliminary point whether there was sufficient cause to proceed with the suit. As already mentioned, the suit was filed on May 4, 1949, when the West Bengal Premises Rent Control Act, 1948, was in force; and under the special procedure prescribed by Section 17 of that Act, the preliminary issue, viz., "Are the premises in suit bona fide "required for the use and occupation of the Plaintiff" was first taken up for hearing so that the court might decide whether there was sufficient cause to proceed with the suit; and the affidavits filed by the two parties were treated as evidence and there was cross-examination and re-examination of the parties and other witnesses were examined orally and their depositions recorded. This hearing of the preliminary issue took place on March 24, 27 and 28, 1950; arguments were also heard in part on March 29. Then with effect from March 30, 1950, the 1948 Act was repealed and the West Bengal Premises Rent Control Act, 1950, came into force; the special procedure prescribed by Section 17 of the 1948 Act was omitted; and so the learned Subordinate Judge on April 5, 1950 passed an order that he would hear the whole suit at once and would pass no separate order on the preliminary issue; he directed the parties to produce such further evidence as they wanted, thus implying that the evidence already taken on the preliminary issue would be treated as evidence for the whole case. There was no objection by either party to the course proposed; the Plaintiff and the Defendant decided to give further evidence and were examined and further cross-examined. The suit was disposed of on the evidence taken in connection with the preliminary issue including the affidavits and the further evidence taken as aforesaid. The learned District Judge held that this was illegal, because when the suit was being heard as a whole, under the procedure prescribed by the Code of Civil Procedure, there could be no substitution of affidavits for oral evidence taken before the court; he referred to the admission made before him by the learned lawyer for the Plaintiff, that if the affidavits were excluded, there would not remain sufficient evidence to support the judgment of the trial court. The learned District Judge, therefore, directed that the case should go back for fresh trial in accordance with law on fresh evidence on all points.

Against that decision, the Plaintiff has preferred this appeal, contending that the affidavits were legal evidence in the circumstances of the particular case and that even if there was any irregularity, that was cured by Section 99 of the CPC and that the learned Judge should not have remanded the case on the point that the suit had been decided on inadmissible evidence.

As regards the first point urged, viz., that the affidavits were legal evidence in the circumstances of the particular case, I must hold against the Plaintiff Appellant. Under the Indian Evidence Act, evidence means all statements which the court permits or requires to be made before it by witnesses in relation to the matter under inquiry and all documents produced for the inspection of the court. Section 1 of the Act lays down that the Indian Evidence Act does not apply to "affidavits presented to any "court" though they may be admitted as documentary evidence for the purpose of corroboration or contradiction. Order XVIII, Rule 4 of the CPC provides that the evidence of witnesses in attendance should be taken orally in open court in the presence and under the personal direction of the Judge. Under Order XIX of the Code no doubt the Judge may under certain conditions and limitations use affidavits as evidence, but such use must come within the terms of that Order. Rule 2 of the Order refers to application and not to suits. Rule 1 of the Order is in general terms and reads as follows:

Any court may at any time for sufficient reason order that any particular fact or facts may be proved by affidavit, or that the affidavit of any witness may be read at the hearing, on such conditions as the court thinks reasonable.

Provided that where it appears that either party bona fide desires the production of a witness for cross examination, and that such witnesses can be produced, an order shall not be made authorising the evidence of such witness to be given by affidavit.

In the present case, there was no order passed by the court that any particular fact or facts might be proved by affidavit, or that the affidavit of a witness be read as evidence at the hearing. The affidavits were quite rightly treated as evidence when the court was hearing the preliminary issue under the special procedure prescribed by Section 17 of the Rent Control Act, 1948; and when the special procedure was abolished, and the court decided to hear the whole suit at once, the court merely decided to use the evidence already taken in connection with the preliminary issue, without apparently considering whether the affidavits continued to be legal evidence. The learned advocate for the Appellant has urged that as the affidavits were legally admitted in evidence under the then existing procedure, they could not subsequently become inadmissible owing to a change in the procedure introduced by a subsequent law. In this connection he has referred to Section 8(b) of the Bengal General Clauses Act, 1899, which provides that when any Act repeals any enactment, then unless a contrary intention appears, the repeal shall not affect the previous operation of any enactment so repealed or anything done or suffered thereunder. It does not appear to me, however, that the clause of the General Clauses Act above referred to has any application to the present question. If the learned Subordinate Judge had decided the preliminary issue before the repeal of the 1948 Act, that decision would not be affected by the repeal of the 1948 Act before the final disposal of the suit; it would be something duly done under the repealed Act. But the mere admitting of the affidavits as evidence for the preliminary issue, though something duly done under the repealed Act, is of no avail when the preliminary issue no longer falls to be tried separately; admission for the trial of a preliminary issue under a special procedure is not equivalent to admission for the trial of the whole case under the general procedure.

I must, therefore, hold that the affidavits could not properly be considered as legal evidence for the whole case tried under the general law. When a witness is present in court, there is no scope under Order XIX, Rule 1, for giving part of the evidence by affidavit; Order XVIII, Rule 4 will apply in such case; and while the Judge may order that the affidavit of a witness be read at the hearing, such affidavit may only be used for corrobaration or contradiction when the witness is present in court and is examined before the court.

The next point urged by the learned advocate for the Appellant is that in any case, this was an irregularity not affecting the merits of the case or the jurisdiction of the court and that the irregularlity is therefore curable u/s 99 of the Code and the learned District Judge should not, therefore, have remanded the case merely for such irregularity. In this case, even when the preliminary issue was being heard, the Plaintiff as well as the Defendant appeared in court and was cross-examined and re-examined, the affidavit of each party being treated as the examination-in-chief; and at the hearing of the whole case, the Plaintiff as well as the Defendant again appeared and gave further evidence and was again cross-examined. I am, therefore, satisfied that no prejudice was caused to the either side by the irregularity in the procedure which was accepted by both parties without any protest. The learned District Judge was applying the principle enunciated in Section 167 of the Evidence Act when he, observed that if the affidavits are excluded there would not remain sufficient evidence to support the judgment and therefore, a remand must be made. But the present case is not a case where evidence intrinsically inadmissible was admitted. When the affidavits were first tendeded as evidence, they were admissible as evidence, though only for the trial of the preliminary issue. At the subsequent stage the parties were again before the court and were undoubtedly ready to depose verbally on the whole case; but the parties agreed to disperse with such full deposition and to accept the evidence already taken and spoke only on points not covered by the evidence previously taken. If either party had objected at that stage to the use of the affidavits as evidence on the ground that the special procedure -prescribed by Section 17 of the 1948 Act was no longer in force, the court would undoubtedly have directed fresh evidence to be recorded in full. In any case, the appellate court would have been fully justified in giving such a direction. But when the parties accepted the procedure adopted by the court without any demur, they cannot subsequently be allowed to object that a part of the evidence was not properly taken. The trial court certainly had jurisdiction to try the case and the irregularity in the manner of taking the evidence is not one affecting the merits of the case. In the circumstances, I hold that this was an irregularity curable u/s 99 of the Code of Civil Procedure, and the learned District judge should not have remanded the case merely on account of this irregularity.

I, therefore, agree with the order passed by my learned brother allowing this appeal and remanding the appeal from the decree of the trial court to the District Judge for disposal of the same on merits. I also agree that the Respondent''s cross-objection, must iiecessarily be dismissed.