SHAM LAL Vs. MUNI LAL

JUDGEMENT

(1.) THIS petition for revision of the order dated the 1st of April, 1971, passed by shri. N. S. Bhalla, Senior Subordinate Judge, Jullundar in a preemption suit pending in his Court has arisen in these circumstances. In pursuance of an agreement of sale dated the 19th of December, 1966, Om Parkash respondent No. 5 sold a house situated at Jullundur to respondents Nos. 1 to 4 by means of a sale deed dated the 6th of March, 1967. At the time of the sale the petitioners were in occupation of the ground-floor of the house as tenants and instituted the said suit for possession of the whole house on the basis of preemption. The case set up by respondents Nos. 1 to 4 in their written statement was that on the 1st of October, 1966, respondent No. 5 had rented out the upper storey of the house to them, that they had been in occupation thereof as tenants over since and that, therefore, the petitioner's right of pre-emption was not superior to their own. These facts were controverted by the petitioners in their replication with the statement:--"it is absolutely wrong that the vendee-defendants were the tenants of the vendor at any time. " on the 1st of January, 1968, the trial Court framed the issues in the case and the main issue was: -"whether the plaintiffs have a superior right of pre-emption over defendants Nos. 1 t 4. " on the 11th of January, 1968, the petitioners placed on the file a copy of an extract from the register of births maintained by the Municipal Committee, jullundur, according to which a daughter was born in the house in dispute to the wife of respondent No. 5 on the 21st of November, 1966. The case lingered on at the evidence stage for one reason or the other till, on the 1st of January, 1970, the petitioners made an application to the Court praying that the said copy be admitted in evidence as it required no formal proof. That application was originally rejected by the learned trail Judge on the ground that an order of the High Court passed in revision on the 23rd of July, 1969, precluded him from accepting any evidence other than the depositions of two witnesses. The petitioners came up in revision to this Court and Sodhi, J. , directed on the 18th of December, 1970, that the earlier order of this Court did not stand in the way of the learned trial Judge accepting the said application which should be disposed of on merits. The learned trial Judge then heard the parties in relation to the application but rejected the application by means of the impugned order on the ground that the copy above mentioned was inadmissible in evidence in as much as its original was not shown to be an entry falling within the ambit of Section 35 of the Indian Evidence Act which runs thus:-

(2.) THE relevant portion of Section 188 of the Act runs thus:--

(3.) CLAUSE (1) of S. 57 of the Indian Evidence Act, 1872 states that the Court shall take judicial notice of "all laws in force in the territory of India" and Section 56 thereof lays down that no fact of which the Court will take judicial notice need be proved. Now if the bye-laws above-mentioned constitute a "law" within the meaning of Clause (1) of Section 57 of that Act, the Court will take judicial notice thereof and they need not be proved. The word "law" has not been defined in the indian Evidence Act but it is by now well settled that it includes not only legislative enactments but also regulations or orders which have the force of law provided they are in their nature legislative and not executive; so that an order of a legislative character which is made by an authority in exercise of the power conferred by a legislative provision owes its legal efficacy to that provision and in the eye of law, therefore, it has the force of a law made by the legislature itself (Edward Mills Co. Ltd. , Beawar v. State of Ajmer, AIR 1955 SC 25; The State of bombay v. F. N. Balsara, AIR 1951 SC 318 and State v. Gopal Singh, AIR 1956 Madh bha 138 (FB) ). In the present case the bye-laws were framed by the Municipal Committee in exercise of the powers conferred on it by Cl. (c) of Section 188 of the Act. They have thus the same force as that section itself and, being provisions of a legislative character, must be held to constitute a "law" within the meaning of section 57 of the Indian Evidence Act; and no question of the petitioners being asked to "prove" them arises. The Court must take judicial notice thereof which means that the Court is itself duty-bound to hunt them up and apply them to the facts of this case even though the parties or their counsel fail to produce them. In this connection see Mazhar Ali v. Hakimuddin, AIR 1965 Pat 489.