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J.S. Bhalla Verus G.J. Bhawnani

1982 (10) TMI 215 - DELHI HIGH COURT

Dated:- 18-10-1982 - Sultan Singh, J. JUDGMENT Sultan Singh, (1) The appellant in this second appeal under Section 39 of the Delhi Rent Control Act, 1958 (here in after referred to as 'the Act' challenges the judgment and order of the Rent Control Tribunal dated 2nd August,1980 a ffirming in appeal the judgment of the Additional Controller dated 28th February, 1979 passing an order of eviction against him on the ground mentioned in clause (e) of the proviso to Section 14(1) of the Act. B .....

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ation, that he was the owner of the premises, that he was aged more than 71 years, that he intended to reside in his oldage in the suit property. Eviction was also claimed on various other grounds but those are not miterial for the purpose of this second appeal. The appellant in the written statement denied that the respondent was the owner of the property and alleged that the premises were not let to him specifically for residential purpose and he had the right to use the premises for all purpo .....

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petition on the ground of bona fide requirement was filed which was dismissed on 19th January, 1977, In the replication it was pleaded that the premises were let to the respondent for residential purposes and the same were situated in residential colony, that the appellant had no right to use premises for purposes other than residence. It was asserted that the respondent had no accommodation for his residence at Delhi except the suit premises. It was admitted that he had been living for a number .....

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the appellant submits that the eviction petition was filed by the attorney of the respondent but there was no dulystamped power of attorney in favor of the attorney. His submission is that the original power of attorney was executed out of India on 8th November, 1977 and it was not stamped within three months of its receipt in India as required under Section 18(1) of the Indian Stamp Act, 1899, that the Collector cannot make endorsement under Section 32 of the Act after the expiry of three month .....

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rected the respondent to pay the stamp duty and penalty prescribed under Section 35 of of the Indian Stamp Act. The stamp duty and penalty payable under the said Section has since been paid. Section 35 of the Indian Stamp Act provides that on payment of proper stamp duty and penalty the document shall be admitted in evidence. Thus I am of the opinion that after payment of the stamp duty and the penalty, the document became admissible in evidence and when once an instrument had been admitted in e .....

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plicable to the facts of the present case. Sections 31 and 32 of the Indian Stamp Act are as under:- "31(1)When any instrument, whether executed or not and whether previously stamped or not, is brought to the Collector, and the person bringing it applies to have the opinion of that officer as to the duty (if any) with which it is chargeable, and pays a fee of such amount (not exceeding five rupees and not less than (fifty naye paisa) as the Collector may in each case direct, the Collector s .....

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pplication until such abstract and evidence have been furnished accordingly :- Provided that:- a) no evidence furnished in pursuance of this section shall be used against any person in any civil proceeding, except in any inquiry as to the duty with which the instrument to which it relates is chargeable; and b) every person by whom any such evidence is furnished, shall, on payment of the full duty with which the instrument to which it relates, is chargeable, be relieved from any penalty which he .....

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mined, has been paid. the Collector shall certify by endorsement on such instrument that the full duty (stating the amount) with which it is chargeable has been paid. (2) When such instrument is, in his opinion, not chargeable with duty, the Collector shall certify in manner aforesaid that such instrument is not so chargeable. (3) Any instrument upon which endorsement has been made under this Section, shall be deemed to be duly stamped or not chargeable with duty, as the case may be; and, if cha .....

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xpiration of three months after it has been first received in (India); (c) any instrument chargeable (with a duty not exceeding ten naye paise), or any bill of exchange or promissory note, when brought to him, after the drawing or execution thereof, on paper not duly stamped". 31 provides for adjudication of proper stamp duty on a document and for that purpose the document is sent to the Collector to obtain his opinion. Section 32 provides for a certificate to be endorsed by the Collector i .....

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is no body's case that anybody wanted to have endorsement from the Collector within the meaning of Sections 31 or 32 of the said Act. Further under Section 33 of the said Act any person having authority to record evidence is entitled to impound the document if the same was not duly stamped. Section 35 provides for admission of a document in evidence after payment of the stamp duty and the penalty. Section 39 provides that admission of a document in evidence shall not be questioned subsequen .....

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India and not stamped within three months of its receipt in India under Section 18 of the Stamp Act can be impounded and admitied in evidence on payment of stamp duty and penalty payable on the document under Section 35 of the Stamp Act. Thus there is no substance in this objection. (5) Learned counsel for the appellant next submits that there is no evidence on record to prove the purpose of Jetting. The repondent pleaded that the premises were let for use as residence. The appellant, on the oth .....

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rding to the deed the plot is a residential plot and a residential building was to be erected for private dwelling The respondent in his Statement, it is true, did not depose that the premises were let for residential purposes. It is however admitted by the appellant-tenant that the building had always been used for residential purposes. There is no agreement of tenancy between the appellant and ihe respondent. The purposes of letting is therefore to be determined by other circumstances of the c .....

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or residential purposes from the inception of the tenancy. He has not discharged the onus that he has used or can use the property for any purpose other than residence. When the landlord pleads that the property was let for residential purpose and the tenant in reply pleads that the premises could be used for all purposes, the onus would be upon the tenant to show that he had a right to use the premises for purposes other than residence. It is admitted by him that he had always been using the pr .....

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o him and that Ex. A.W. 1/1 was the lease deed with respect to the plot over which he erected the house. The objection of the learned counsel is that the contents of the lease deed Ex. A.W. 1/1 have not been proved. He submits that the Executant of the lease deed ought to have appeared as a witness to depose about the correctness of its contents. The lease deed is in favor of the respondent. It was executed on his behalf by his attorney. He has deposed that he was the owner of the plot and that .....

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another, wherein it has been observed that proof of signature of executant could not prove the contents of the document, that the content of the documents could only be proved by the executant. In that case the sale deed was held to be in admissible in evidence in view of the failure to examine the executant. The facts of these cases are not applicable to the facts of the present case. In the instant case, the owner has appeared, who, as already stated, has deposed that he was the owner and the .....

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ellant's counsel alleges that the respondent was a British National settled in London with his family. He submits that the respondent would not like to settle in Delhi when there is no body to look after him and that the respondent has not got its assets transferred from London to Delhi, It is in evidence that the respondent does not own any property in Delhi except the property in suit. The respondent wants to occupy the same with his wife. It is also alleged that the respondent's daugh .....

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