1970 Supreme(Del) 55

High Court Of Delhi
JAMIL AHMED TABAN - Appellant
Versus
KHAIR-UL-NISA - Respondent
SECOND APPEAL 16D of 1963
Decided On : 03/16/1970

The provisions of Orders 26 and 39 of the Code of Civil Procedure are available to the Controller under the Delhi Rent Control Act, 1958, and the reports of a local commissioner appointed under those provisions are admissible in evidence under section 157 of the Evidence Act, 1872, even if they are not admissible under Order 26, rule 10(2) of the Code of Civil Procedure due to non-compliance with the provisions of Order 26, rule 18(1).

Headnote:

RENT CONTROL - APPOINTMENT OF LOCAL COMMISSIONER - VALIDITY - DELHI RENT CONTROL ACT, 1958 - SECTIONS 36, 37 - CODE OF CIVIL PROCEDURE, 1908 - ORDERS 26, 39 - RULES 9, 10, 18 - EVIDENCE ACT, 1872 - SECTION 157.

Fact of the Case:

The appellants were tenants against whom two separate proceedings were instituted for their ejectment on the ground of subletting or parting with possession of the premises without the written consent of the landlord. An application was made to the Rent Controller under Order 26, rule 9 and Order 39, rule 7 read with section 151 of the Code of Civil Procedure praying that a local commissioner be appointed to go to the spot and report as to who was in occupation of the premises. The order appointing the local commissioner was passed ex parte and in terms of rule 9 of Order 26. The eviction petitions in both the cases were dismissed by the Additional Rent Controller but the appeals filed against his orders were accepted by the Rent Control Tribunal based on the reports submitted by the local commissioner.

Finding of the Court:

The court held that the provisions of Orders 26 and 39 of the Code of Civil Procedure were available to the Controller under the Delhi Rent Control Act, 1958. The court further held that the reports of the local commissioner were admissible in evidence under section 157 of the Evidence Act, 1872, even though they were not admissible under Order 26, rule 10(2) of the Code of Civil Procedure due to non-compliance with the provisions of Order 26, rule 18(1). However, the court held that the statements in the reports relating to subletting and the time of subletting were beyond the scope of the order appointing the local commissioner and could not be relied upon as having been duly proved.

Issues: 1. Whether the provisions of Orders 26 and 39 of the Code of Civil Procedure were available to the Controller under the Delhi Rent Control Act, 1958? 2. Whether the reports of the local commissioner were admissible in evidence? 3. Whether the statements in the reports relating to subletting and the time of subletting were admissible in evidence?

Ratio Decidendi: 1. The court held that the provisions of Orders 26 and 39 of the Code of Civil Procedure were available to the Controller under the Delhi Rent Control Act, 1958, because: * Section 36(2)(c) of the Act, which provides for the issue of commissions by the Controller, does not exclude the applicability of the provisions of the Code. * Section 37(2) of the Act, which provides for the procedure to be followed by the Controller, incorporates the practice and procedure of a Court of Small Causes, which includes the provisions of Orders 26 and 39 of the Code. * Rule 23 of the Delhi Rent Control Rules, 1959, provides that the Controller and the Rent Control Tribunal shall be guided by the provisions of the Code of Civil Procedure in deciding any question relating to the procedure not specially provided by the Act and the rules. 2. The court held that the reports of the local commissioner were admissible in evidence under section 157 of the Evidence Act, 1872, even though they were not admissible under Order 26, rule 10(2) of the Code of Civil Procedure due to non-compliance with the provisions of Order 26, rule 18(1), because: * The reports were documents which had been produced as primary evidence and the proof by the commissioner of their execution proved their contents under section 61 of the Evidence Act. * The commissioner had been appointed to inspect the property and collect the information as required by the order of the Controller, which was a valid order under clause (e) of Rule 7 of Order 39. * The commissioner had inspected the property, collected the information, and recorded it in his reports. * The commissioner had been examined as an ordinary witness and had proved the two reports as having been made by him. * No question was put to the commissioner in cross-examination challenging the truthfulness of the contents of the reports. 3. The court held that the statements in the reports relating to subletting and the time of subletting were beyond the scope of the order appointing the local commissioner and could not be relied upon as having been duly proved, because: * The commissioner was appointed only to inspect the premises and ascertain the persons who were in possession of the premises. * The statements relating to subletting and the time of subletting were not within the scope of the order.

Final Decision: The court set aside the orders of the Tribunal in both the appeals and remanded the cases back to the Tribunal for re-appraisal of the evidence to determine, in the light of the judgment, whether the respondent had proved unauthorized subletting.