J S BHALLA Vs. G J BHAWANI

JUDGEMENT

(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. Briefly the facts arc that the respondent G. J. Bhawnani through his wife as attorney filed, a petition for eviction alleging that the appellant was inducted as a tenant in his property 5/16, Shanti Niketan, New Delhi with effect from 19th June, 1971 on a monthly rent of Rs. 400.00 excluding water and electricity charges, that the premises were let for residential purposes and were required for the residence of himself and his wife that he had no other reasonably suitable residential accommodation, 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 purpoes. It was also denied that the respondent bona fide required the it premises or that he had no other reasonably suitable accommodation in Delhi. It was alleged that the respondent was a permanent resident of U.K.. holding British Passport and settled in London for the last several years, that his family and children own 2-3 houses in U K., that the desire of the respondent was either abnormal increase in rent or to dispose of the property after getting it vacated, that previously an eviction 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 of years in London but wanted to stay and live in his own country, that he was not interested to increase the rent, that he was prepared to give an undertaking not to let out the house to anyone, that earlier petition was dismissed on the technical ground for want of valid notice of eviction. The Additional Controller by his judgment dated 28th February, 1979 passed the order of eviction under Section 14(l)(c) of the Act which was confirmed by the Rent Control Tribunal.

(2.) Learned counsel for the appellant submits that the eviction petition was filed by the attorney of the respondent but there was no dulystamped power of attorney in favour 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 months of its receipt in India as provided in the proviso (b) to Section 32 of the Indian Stamp Act, and therefore therefore the eviction petition was liable to be dismissed on this short ground.

(3.) It is not disputed that the power of attorney was executed in London on 8th November, 1977 and that it was not stamped within the period in of three months of its receipt in India. There was an objection as to the admissibility of the said document. The Additional Controller impounded the document and directed 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 evidence, the same cannot be called in question at any subsequent stage of the proceedings as provided in Section 36 of the said Act. The argument of the learned counsel for the appellant however is that the payment of stamp duty and penalty docs not make document executed out of India admissible in evidence after the expiry of three months from the date of its receipt in India. He relies upon Section 31 and 32 of the Indian Stamp Act. But in my opinion Section 32 of the said Act is not at all applicable to the facts of the present case. Sections 31 and 32 of the Indian Stamp Act are as under:-