PRAVIN S SHAH Vs. GOVIND K SHARMA

JUDGEMENT

(1.) Appellant is and was residing at Bombay. He had let the suit premises to respondent 1 through his agent who was residing in neighbouring house for Rs. 235.00. A lease deed was drawn up which was sent to Bombay for appellant's signature. Consent to sub-let was given on condition of enhancement of rent to Rs. 250.00. After about 5 years appellant sued respondent for unlawful sub-letting stating in the petition that a lease deed was executed between the parties. Later alleging that no such deed was written, he applied for permission to amend the petition which was refused. The controller and the Tribunal hied that such a deed was written and the landlord through his agent had given consent to sub-let. Appellant appealed to the High Court.] Para 12 onwards the Judgement is : -

(2.) In the present case the landlord admitted unequivocally in his petition for eviction that there was an agreement of tenancy between himself and the tenant (respondent 1). That was clearly an admission of the existence of a document in writing executed between himself and the tenant. The said admission itself is sufficient proof of the execution of the document, and no further proof was called for in view of the provision in section 58 of the Indian Evidence Act it is, therefore, not necessary to go into the question as to whether the statement of R,W. 4 was sufficient proof of the execution of the document or not. In the decisions referred to by the learned counsel, there was no such admission as there is in the present case and so they are not of any assistance. Further, the Additional Controller and the Rent Control Tribunal had given concurrent findings of fact, and the same have to be regarded as binding on this court in the present Second Appeal under section 39 of the Delhi Kent Control Act, as the learned counsel has not been able to show any legal infirmity in the said concurrent findings which calls for interference under the aforesaid section. The first contention of the learned counsel for the appellant thus tails and cannot be accepted.

(3.) The second contention of the learned counsel was that even if there was a written agreement of tenancy or lease, secondary evidence of the same was not admissible as (a) the document was not properly stamped and (b) the document was unregistered. The agreement of tenancy was admitted by the landlord, but the document was not produced by him. He pleaded subsequently that no such agreement was ever executed which plea hat, however, been rejected. The non-availability of the original document was thus obvious, and secondary evidence of the contents of the document could, therefore, be adduced by the tenant, During the examination of L.K.Joshi, R.W. 2. the learned counsel for the tenant sought permission to adduce secondary evidence of the terms of the agreement of tenancy, and the Additional Controller granted permission, in my opinion rightly, in view of the admission of the landlord about the agreement of tenancy and its non-production by the landlord. The appellant, therefore, cannot have any grievance on that ground. The argument of Mr.Suri, however, was that the original document was not properly stamped and was not registered and, therefore it was not admissible in evidence, and that consequently secondary evidence of the contents of the document was also not admissible. This objection was raised before the Additional Controller during the examination ot R.W. 2, and the same was noted by the Additional Controller in recording the statement of R. W. 2. As regards the stamp duty, Mr. Suri pointed out that the rent agreed upon was Rs. 250.00 per month i.e. Rs. 3,000.00 per year or Rs. 30,000.00 for ten years, that according to Article 35 read with Article 23 of the Indian Stamp Act, the stamp duty payable on the document was about Rs. 300.00, and that according to R.W. 2 and R.W. 4, the document in question was typed on a stamp worth about Rs. 10.00 or Rs. 20.00 or Rs. 30.00. It is true that it the original document was not duly stamped, it could not be admitted in evidence in view of the provision in section 35 of the Indian Stamp Act. But, the defect was curable under proviso (a) to the said section, and the non-production of the document by the landlord prevented the same. As already stated, the landlord admitted the existence of the document in his petition for eviction, but resiled from it subsequently. The result was that the document was not available and as such the tenant was prevented from curing the defect by paying deficit stamp duty under proviso (a) to section 35. In the circumstances, the landlord cannot be permitted to lake advantage of his own action to the detriment of the opposite party. It has, therefore, to be held that it is not open to the landlord to plead in admissibility of the original document on the ground that it was not duly stamped.