(Querist) 01 October 2008
This query is : Resolved
well friends, i ve got a very important point to discuss with u, pls oblige by responding.
A files an Ejectment Petition under East Punjab Urban Rent Restriction Act against a tenant on the ground of personal necessasity of her son and secondly on the ground of delapidated condition of the shop in question. Petition is filed in April 2005 and finally argued in September 2008.
The Rent controller dismisses the petition on the ground that the affidavits produced in the form of affidavit are to be rejected because of defective verification, citing further reason that the petitioner and other witness have verified the affidavit as'....true and correct to the best of my knowledge and belief', and this is incorrect verification because it is not explained what portion is out of knowledge and what portion is out of belief. Order 19 Rule 3(1) CPC
Now, my query is when the affidavit was tendered into evidence, court scrutinised the same and found it correct thus taken on record, no objection was raised by the opposite counsel further the petitioner and the witness were subject to cross examination and no objection was taken then also even suggestion to this extent was never given. Whether the rejection of affidavits at this stage is correct? It is pertinent to mention here that the rent controller though read in to the cross examination of the petitioner and only that portion which was against the petitioner.
Whether another opportunity should ve been granted to file additional affidavits?
What is scope in appeal?
Whether CPC strictly applies to rent matters?
Whether appelate court can grant opportunity for additional evidence?
Whether procedural law shall affect the substantive rights?
When evidence is supposed to be on oath only then whether verification is necessary?
(Expert) 02 October 2008
Sir The importance of verification is to test the genuineness and the authenticity of the allegations and also to make the deponent responsible for the allegations. In essence, verification is required to enable the court to find out as to whether it will be safe to act on such affidavit. AIR 1970 SC 652.
It is just possible that the court entertains a doubt with regard to the very authorship or identity of the persons who gave a particular affidavit. To contend that the court has no power to clear its doubt, but that the court has to either submissively accept or arbitrarily reject the doubtful affidavit would tantamount to reducing the proceedings of the court to a mere mockery. 1981 (1) ALT 490 = AIR 1981 AP 406.
As in the case putforth by you it is clear that the deponents were examined under the oath before the court. Then the court cannot take such plea and if it thinks it is fatal then it ought to have directed the petitioner to file fresh affidavits.
Now coming to the part of the applicability of CPC in RCC cases as per the ruling 1967 (2) An. W. R 479 it was held that
It must be remembered that where one statute deals with a subject in general terms, such as CPC and another deals with a part of the same subject in the prescribed way such as Rent Control Act and the rules made there under, the two should be harmonized, if possible. But, if there is any conflict, the special or local law would naturally prevail. But in case the special or local law is silent on any particular aspect of the procedure, Section 4 of CPC does not stand in the way in having recourse to the relevant provision of the CPC
But this finding is under AP Rent Control Act.
J K Agrawal
(Expert) 05 October 2008
I fully agree with mr Shriniwas. It is to be noted that in case of an evidence produces by affidavit the provisions of Evidence Act is not applicable as per section 1 of it.
As far as I understand about the affidavits, the contents of affidavit are of two types. 1 Affidavit containing Those facts which the deponent is able of his own knowledge to prove and II affidavits containing those facts which he believes to be true. Type i affidavit is strictly required prove facts which are directly in issue in main case and the result of entire case may be effected by such a fact. Type II affidavit is required to prove the facts of interlocutory applications. in case of type II affidavit the deponent is required to state the grounds that how do he believe that fact.
Affidavit is in two parts first part is deposition of facts and the second part is verification. The affidavit completes as soon as first part is signed. only the things written in the first part are relevant. SECOND PART NOT REQUIRED AT ALL.
Now why the Second part?. Virtually the second part is a verification of first part and it is duty of the court or an oath commissioner to verify that the particular signatory has signed the first part. It is part of his duty that he verify the source of knowledge of the deponent. After satisfaction he gets signature of deponent before his presence by writting verification. Virtually the second part should be written under the instruction of officer administrating oath . So any fault in verification is not at all fault of deponant.
(Expert) 15 October 2008
Dear sirs, The court has committed manisfest error. Because 1) the filing of affidavit is only directory and not mandatory as per the supreme court in Salem Bar association's case. 2)If the court felt that the affidavit is not properly verified it ought to have given an opportunity to the deponent to file proper affidavit or to let in evidence directly. Even other wise, the once cross examination is allowed to be done based on the affidavit, it becomes evidence and the same cannot be rejected in toto that it is not properly verified. hence the affidavit cannot be rejected on this basis.
But unfortunately the appellate authority does not have the power to remand the Rent control petition. The only option is to get direction from the appellate forum to record fresh evidence and then send it to the appellate forum so that it can decide the matter based on the addition (fresh) evidence.
The procedural law will never affect or be allowed to affect the substantive rights. After all, the courts are there only to render substative justice.