Mool Singh vs Ram Nath and Another

R.S. Pathak, C.J.—This is a tenant's revision petition u/s 15(5) of the East Punjab Urban Rent Restriction Act, 1949, against an order of the Appellate Authority dismissing his appeal as barred by time.

The Respondent applied u/s 13 of the East Punjab Urban Rent Restriction Act for the eviction of the Petitioner from the premises No. 110, Krishan Nagar, Simla. By his order dated April 29, 1974, the Controller, Simla, allowed the petition and directed the Petitioner to put the Respondent in possession of the premises. An appeal was filed by the Petitioner before the Appellate Authority, Simla on July 5, 1974. If regard be had to the date of the order of the Controller, the appeal had to be treated as barred by time in as much as on that basis the limitation expired on May 14, 1974. But in paragraph 5 of the memorandum of appeal the Petitioner asserted that when the case was taken up on April 25, 1973 (this appears to be an error for April 24, 1974), the Controller had told the Petitioner that he would call his counsel when Judgment would be announced and that the Petitioner need not come and that "no date was fixed for announcing the judgment". In the same paragraph, the Petitioner adds that on May 18, 1974, he was informed by the Controller that the eviction order had been made against him on April 29, 1974. The Petitioner further stated that he had submitted before the Controller that neither he nor his counsel had been informed of the date of the order nor had they been sent for at the time the order was announced. Upon this, the Petitioner says, the Controller told him that he was merely required to announce the order in court and not to send for counsel for the parties and inform them of the order. Subsequently, an affidavit was also filed by Shir S.S. Ahuja, Advocate, who appeared as counsel for the Petitioner before the Controller, that on April 25, 1974 (this again is an error for April 24, 1974) the Controller did not fix any date for decision but had reserved Judgment and it was to be communicated later to counsel or the parties. Shri Ahuja has also averred that the order was never communicated to him or announced in his presence. The appeal was resisted by the Respondent on the ground that it was barred by limitation. An application was made by the Respondent for an order dismissing the appeal. Paragraph 4 of that application states that according to the record the Controller never told the Petitioner that he would call his counsel when judgment was announced, and that on April 24, 1974, the Controller stated that he would announce the order on April 29, 1974. Paragraph 5 of the application states that the Petitioner was informed by the Respondent on 2nd or 3rd of May, 1974, of the order of the Controller. The paragraph has been sworn partly to the personal knowledge of the Respondent Om Parkash and partly on information derived from the record.

The Appellate Authority has dismissed the appeal, holding that the Petitioner had not established that the order dated April 24, 1974, fixing April 29, 1974, for pronouncement of Judgment had not been announced in the presence of counsel for the Petitioner and that instead Judgment had been reserved.

In this revisions petition, it is urged by Learned Counsel for the Petitioner that having regard to the state of the affidavits the appellate authority erred in holding that the appeal was barred by time. After hearing Learned Counsel for the parties, I am of opinion that the contention is well-founded. The Appellate Authority has taken the view that a statement recorded in the order sheet by the Controller is final and no evidence can be entertained to show that it is erroneous. The law is that a statement of fact made in the Judgment or order of a court or tribunal in regard to what happened in the proceeding should be presumed to be correct, but the presumption of correctness is Open to rebuttal. The Appellate Authority should have weighed the material before it and then decided whether counsel for both parties were present before the Controller on April 24, 1974. When one turns to the material on the record, it appears that the statement in paragraph 5 of the memorandum of appeal that no date was fixed for announcement of the judgment and that the Controller had told the Petitioner that he would call counsel when Judgment was to be announced and that the Petitioner need not come, is supported by an affidavit sworn to the personal knowledge of the deponent of the affidavit. The averment to the contrary made in the application filed by the Respondent contains two paragraphs, paragraph 4 being sworn on the record of the case and paragraph 5 being sworn partly to the personal knowledge of the Respondent Om Parkash and Partly on the record of the case. So far as paragraph 4 is concerned, the record is before me, and therefore the paragraph is of little importance. Paragraph 5, having regard to the manner in which it has been sworn, has no probative value. It is not possible to discern which part of the paragraph is true to the personal knowledge of the deponent and which on the record of the case. The purpose of verification by affidavit is that the deponent should assume responsibility for the statement made by him, and unless the verification is clear and categorical, no value can be attached to the averment. It is for this reason that the courts insist on appropriate verification of individual averments, and have adopted a form now settled by long usage indicating whether an averment is true to the personal knowledge of the deponent or is true on information derived from the records or is true on information received from some one else. Each individual averment must be verified on the basis of a distinctly stated source of knowledge. Where that is not done it cannot be said that the deponent has taken responsibility for the averment. Accordingly, it is not possible to rely on paragraph 5 of the application filed by the Respondent, having regard to the manner in which it has been verified by affidavit.

Accordingly, the case set out by the Petitioner in paragraph 5 in the memorandum of appeal must be accepted and it must be held that the Controller did not on April 24, 1974,fix April 29, 1974, as the date on which Judgment was to be pronounced, in the presence of counsel for the parties.

A perusal of the order sheet of the Controller betrays a peculiar practice. In some instances, where a date was fixed for the next hearing in the case, a line appears under the date so fixed. Other entries in the order "sheet where the date has been fixed do not disclose such a line. It seems to be that when the Controller recorded the order for the case to come up again, if he had not yet determined what date should be fixed for that purpose he entered a line in place of the date fixed and it was subsequently that the date was entered. It does not appear that the date was fixed at the time when the order was recorded. At times, for example in the order dated November 9, 1973, when this was done by the Controller he obtained the signature of counsel appearing in the case. On other occasions no such step was taken. The signature of counsel would have been necessary because the date fixed was entered subsequently and not initially when the order was originally recorded. The practice of entering a date subsequently must be deplored. The order when recorded should be a complete order. The practice followed by the Controller has resulted in wholly unnecessary litigation with consequent waste of public time and money.

Being of pionion, that the appeal cannot be treated as arred by limitation, I set aside the order of the Appellate Authority made on March 19, 1976.

It is urged by Learned Counsel for the Respondents that as the entire case is before me in revision it is open to me to dispose of the merits of the case also. Having regard to the long period during which the petition for eviction has remained pending, one would be tempted to adopt that course. Learned Counsel for the Respondents has placed before me Navnitlal Chunilal Vs. Baburao (No. 2), and The Great Eastern Shipping Co. Ltd. v. S. Mohammed Samiullah Saheb and Co. AIR 1959 Mad. 367, in support of the plea that this Court has jurisdiction to decide the case on the merits. Reference has also been made to Manohar Lal v. Mohan Lal 1957 PLR 38, But it seems to me that in a case where the appeal has been dismissed by the Appellate Authority solely on the ground of limitation and the Appellate Authority has not applied its mind at all to the merits of the appeal before it, it is not desirable that this Court should take upon itself to dispose of the case on its merits. It is settled principle that the highest court of the State should have the benefit before it of the finding of the lower courts, and it is in a very rare case that the highest court will, notwithstanding that it possesses wide jurisdiction in that behalf, undertake the task of deciding in the first instance the issues on the merits between the parties. In my opinion, this case does not fall within that exception.

The alternative course suggested is that this Court should call for findings from the Appellate Authority on issues not considered by it and then dispose of the case. It seems to me that having regard to the manner in which the Appellate Authority has disposed of the appeal, the proper course would be to set aside the order of the Appellate Authority and remand the case to it for fresh decision of the appeal.

In the circumstances, the revision petition is allowed, the order of the Appellate Authority dated March 19, 1976, is set aside, and the case is remanded to the Appellate Authority for decision on the merits of the Appeal. It is necessary that the Appellate Authority should dispose of the appeal expeditiously. At the request of Learned Counsel for the parties, June 15, 1977, is fixed for appearance in the case before the Appellate Authority. In the circumstances, there is not order as to costs.