Search in selected Domain

MANU/DE/0335/1988

Equivalent Citation: AIR1989Delhi144, 37(1989)DLT88

IN THE HIGH COURT OF DELHI

Second Appeal Nos. 378 and 379 of 1987

Decided On: 27.10.1988

Appellants: Rajeshwarhwa
Vs.
Respondent: Sushma Govil

Hon'ble Judges:
P.K. Bahri, J.

Counsels:
V.N. Kaura, Girdhar Govind, Arun Kumar and Vijayesh Roy, Advs

Subject: Tenancy

Subject: Law of Evidence

Acts/Rules/Orders:
Delhi Rent Control Act, 1958 - Section 15(1); Notaries Act, 1952 - Section 11; Indian Evidence Act, 1872 - Section 57

Cases Referred:
T. Govindraraj Mudaliar v. The State of Tamil Nadu and Ors. decided by the Supreme Court of India; Bank of India v. Ajaib Singb, Suit No.
671177, dated 20-4-1979 decided by the High Court of Delhi, New Delhi; Fatelal Shah and Ors. v. Dayalal Bishrambhai, AIR 1949 Nagpur 218;
Padma Vithoba Chakkayya v. Mohd. Multani and Anr., AIR 1963 SC 70; Satish Chand Makhan and Ors. v. Govardhan Das Byas and Ors., 1984
1 SCC 369; Mangal Singh v. Tek Ram and Ors., 1975 AIR(Del) 267; J.N. Banerjee v. S.L. Bhargava, 1971 0 AIR(Del) 243; Shalimar Tar
Products India Ltd. v. H.C. Sharma, 1974 1 ILR(Del) 389; Rana Vidya Bhushan Singh v. Rati Ram, 1969 UJ SC 86; Biswabani Privats Limited
v. Santosh Kuniar Dutta and Ors., 1980 1 RCR 263; Rawal Singh v. Kwality Stores and Anr., 1986 2 RCR 499; Lachhmi Devi v. Satya Wati,
1985 1 RCR 189; Kesa v.Ganesh and Ors., 1981 2 RCR 276; Haji Abdul Gaffar v. Madan L. Khanddwal, 1986 2 ILR(Calcutta) 235; Interads
Advertising Private Limited v. Bentrex & Company and Ors., 1983 53 CCD 464; National and Grindlays Bank Limited v. World Science News
and Ors., 1976 AIR(Del) 263; Jugraj Singh and Anr. v. Jaswant Singh and Ors., AIR 1971 SC 761; R.C. Cooper v. Union of India, AIR 1970 SC
465; K.K. Kochuni v. State of Punjab, AIR 1960 SC 1030; Ballabhdas Mathuradas Lakhani and Ors. v. Municipal Committee, Malkapur, AIR
1970 SC 1002; Bharat Kala Bhandar v. Mluicipal Committee of Dhamangaon, AIR 1966 SC 249; Ambika Prasad Mishra v. Stflte of Uttar
Pradesh and Ors., AIR 1980 SC 1762; Municipal Corporation of Delhi v. Gurnam Kaur, 1988 4 JT 11; K.K. Ray (Private) Limited, AIR 1967
Calcutta 636; Abdul Jabbar and Ors., AIR 1980 Allahabad 369; Allah Bakhsh and Anr. v. Municipal Committee of Rohtak, AIR 1926 Lahore
223; Danish Mercantile Co. Ltd. and Ors. v. Beaumont and Anr., 1951 1 Ch D 680; Subbiah Pillai @ S.S.M. Subramania Pillai v.
Sankarapandiam Pillai and Ors., AIR 1948 Madras 369; Dahyabhai Girdhardas v. Bobaii Dahyaji Kotwal and Ors., AIR 1953 Bombay 28;
Nadella Satyanarayana v. Yamanoori Venkata Subbiah, AIR 1957 Andhra Pradesh 172; All India Reporter Limited v. Ram Chandra Dhondo
Datar, AIR 1961 Bombay 292; Ashok Kumar Dev and Anr. v. Gobinda Chandra Dev and Ors., AIR 1984 Calcutta 337; Secretary, Notified Area
Committee, Okara v. Kidar Nath and Ors., AIR 1932 Lahore 388; Punjab Zamindars Bank Ltd. v. Madan Mohan Singh and Ors., AIR 1936
Lahore 321
Case Note:

Tenancy - non-payment of rent - Section 15 (1) of Delhi Rent Control Act, 1958, Section 11 of Notaries Act, 1952 and Section 57 of Indian
Evidence Act, 1872 - eviction petition by respondent-landlord against appellant for non-payment of rent - eviction Orders passed against
appellant challenged - notices of demand duly served on appellant - appellant failed to deposit arrears of rent within stipulated time
period - no reply sent to notices of demand - ground of non-payment well made out - appellant did not care to enjoy benefit of Section 14
(2) by complying with Order made under Section 15 (1) - appeal liable to be dismissed.

JUDGMENT

P.K. Bahri, J.

(1) This judgment shall dispose of both the appeals brought under said applications but no reply was filed. On January 5, 1987, no
Section 39 of the Delhi Rent Control Act. Two eviction petitions one appeared on behalf of the appellant and defense of the
were brought by the respondent against the appellant on the ground appellant in both the cases was struck out as the appellant had not
of non-payment of rent. The complete ground floor of house No. deposited even single paisa in compliance with the. orders made
E-36, Kalindi Colony, New Delhi, was stated to have been let out under Section 15(1). After recording the statement of M. S.
to the appellant at the rental of Rs. 2400 per mouth. Initially the Chaturvedi, father of the respondent who also claimed to be
letting took place vide lease agreement dated July Ii, 1980, and the attorney of the respondent the eviction orders were passed against
same was renewed vide agreement dated July 1, 1982. The arrears the appellant which were challenged by filing the appeals before
of rent was stated to be due with effect from January 1, 1984. the Tribunal. The Tribunal while admitting the appeals granted
which were allegedly not paid by the appellant in spite of service stay of dispossession of the appellant in both the case subject to the
of notice of demand dated March 12, 1985. In the second eviction appellant depositing the entire arrears of rent and month to month
petition, it was pleaded that the complete basement of the same rent. The appellant, in order to save himself from being
money stood let out to the appellant a the rental of Rs. 1,000 per dispossessed, admittedly deposited the arrears of rent and month to
month vide lease deed dated October 1. 1982, with a stipulation month rent in both the cases. Ultimately the Tribunal came to
that the rent was to be increased to Rs. 1,200 per month with effect dismiss both the appeals vide judgment dated October 13, 1987.
from January 1, 1983, and it was pleaded that arrears of rent were
due with effect from January 1, 1984, which were neither paid nor
(3) Counsel for the appellant has, at first, contended that interim
tendered in spite of service of notice of demand dated March 12,
order under Section 15(1) should not have been made inasmuch as
1985. The ground of misuse covered by clause (c) of proviso to
the appellant had disputed the existence of relationship of landlord
sub-section (1) of Section 14 of the Delhi Rent Control Act was
and tenant between him and the respondent in both the cases and if
also pleaded but that ground was negatived and no longer survives
both the orders are set aside then the eviction orders also have to
for decision in these appeals.
fail because no final order had been made under Section 15(1)
requiring the appellant to deposit the arrears of lent within one
(2) In the first case, the appellant pleaded that he, in fact, was not month. It is now settled law that an order under Section 15(1) in an
the tenant on the ground floor of the s.:id building and the premises eviction petition brought on the ground of non-payment of rent can
were actually let out to M/s. Wadbrow India (P) Limped and thus, be made on the prima facie view of the disputed facts pleaded
the eviction petition against him was not maintainable. On merits, before the Controller. In the first case, the respondent had placed
the plea taken was that the rate of rent was Rs. 2,000 per month on record the agreement of lease duly signed by the appellant and
and there were no arrears payable as alleged in the petition. The by respondent's father on behalf of the respondent which clearly
receipt of the notice of demand was also denied. Similarly, in the shows that the appellant is the tenant. He has been described in the
second petition, the appellant took the plea that in fact, M/s. lease deed as Managing Director of M/s. Wadbrow India (P) Ltd.
Spectra India is the tenant and he took the plea that the rate of rent but the whole of the lease-deed makes it evident that it is the
is Rs. 1,000 per month and no arrears of rent, as claimed in the appellant who is the tenant in the premises and not the company. It
petition, were due. In replications, the respondent controverter the was contended by the learned counsel for the appellant that the
pleas of the appellant and reiterated her own pleas and in the other lease-deed being not executed on a proper stamp paper and being
case she pleaded that M/s. Spectra India is not a legal entity as the not registered could not have been looked into for any purpose.
appellant is the proprietor of the said firm. It was controverter in The lease-deed was impounded and the duty and the penalty have
respect of the first petition that M/s. Wadbrow India (P) Ltd. is the been paid. So, it could be taken into consideration. The only point
tenant. In both the cases separate orders under Section 15(1) of the to be seen is whether the unregistered lease-deed could be taken
Delhi Rent Control Act were made on October 18, 1986. The into consideration or not in order to see the nature of possession,
appellant filed appeals against those orders but ultimately he meaning thereby whether a particular person is in possession as a
withdrew those appeals which came to be dismissed as withdrawn tenant or not? Under Section 49 of the Registration Act, an
vide orders of the Rent Control Tribunal dated November 24, unregistered lease-deed, which in law is required to be registered
1986. However, the Tribunal granted time till December 31, 1986, compulsorily, could be seen for collateral purposes i.e. to see the
for complying with the order made under Section 15(1). The nature and character of the possession.
appellant did not deposit any rent whatsoever in compliance with
the said orders made under Section 15(7). Applications under
Section 15(1) of the Delhi Rent Control Act were moved for 3(a). Counsel for the appellant has cited
striking out the defense of the appellant in both the cases. In spite Fatelal Shah & others v. Dayalal
of the fact that adjournments were sought for filing the reply to the
Bishrambhai MANU/NA/0043/1948 in which it seeks to create. That is an interest in
support of his contention that an immovable property. The document being
unregistered lease-deed cannot be seen unregistered is inadmissible. But for the
whether the possession of the appellant is nature of possession reference can certainly
that of tenant or not? It is true that in this be made to the document. It can be read in
judgment it has been observed that the evidence. A reading of the document shows
question as to who is the tenant and on what that the defendant's possession is
terms he has been created a tenant are not permissive. They admitted that the land on
collateral facts and they are important terms which they had built the mud huts belongs to
of the contract of tenancy which cannot be the plaintiffs. They agreed to become
proved by admission of an unregistered tenants under the plaintiffs. thereforee, in
lease-deed into evidence. However it is no order to explain the present possession of
possible to countenance to the view the defendants and its nature and character
expressed in this judgment as it has been the document can be admitted in evidence.
laid down repeatedly by the Supreme Court This will be a collateral purpose."
that the nature arid character of the
possession of the premises is a collateral (4) In the courts below, two judgments have been referred to in
coming to the conclusion that the unregistered lease-deed can be
purpose. In Padma Vithoba Chakkayya v. looked into to see as to who has been inducted as a tenant but those
Mohd. Multani & Another Air 1963 Sc 70, it judgments appear to be somewhat distinguishable. In Biswabani
Private Limited v. Santosh Kumar Dutta & Others, 1980 (1) Rcr
was observed as fellows : "Proof as to the 263, the ratio laid down by the Supreme Court was that even
nature or character of a person's possession though an unregistered lease-deed which is required to be
compulsorily registered is inadmissible in evidence, still the
is really a proof of a transaction showing in relationship of landlord-tenant can be proved by subsequent
what character a person has come upon the conduct of the parties showing the payment of month to month rent
which would bring about a lease from month to month. In Rawal
land. Such a transaction is really a collateral Singh v. Kwality Stores & Another 1986(2) Rcr 499. the question
one which by itself does not require to be which arose for decision was as to whether unregistered lease-deed
could be looked into or not to see whether the roof was part of the
effected by a registered deed. An demised premises. It was held that the lease-deed could be looked
unregistered document is, thereforee, held to into for this purpose because the same was collateral purpose. In
Lachhmi Devi v. Satya Wati, 1985(1) Rcr 189 the Punjab &
be admissible as evidence of the nature or Haryana High Court also held that an unregistered lease-deed,
character of a person's possession." which is required to be registered compulsorily, can be looked into
to determine the nature and character of possession of the tenant in
view of proviso to Section 49 of the Registration Act as the same is
Seine view has been reiterated in Satish Chand Makhan & Others a collateral purpose. In Kesa v. Ganesh & Others, 1981(2) Rcr 276
v. Govardhan Das Byas & Others, . In Mangal Singh v. Tek Ram the same proposition of law has been laid down by Rajasthan High
& Others, MANU/DE/0202/1975 : AIR1975Delhi267 , a similar Court. I entirely agree with the law laid down by this Court in
question arose and Avadh Behari, J., after making reference to the Mangal Singh (supra) and held that the unregistered lease-deed in
aforesaid judgment of the Supreme Court and two judgments of the present case could be looked into to see as to who ha/ been
this Court in J. N. Banerjee v. S. L. Bhargava, inducted as a tenant. I, hence, repel the first contention of the
MANU/DE/0053/1971 : AIR1971Delhi243 , Shalimar Tar learned counsel. So, there is no merit in this contention that the
Products India Ud. v. H. C. Sharing MANU/DE/0333/1973 and to Rent Controller was not legally right in making an interim order
an unreported decision of the Supreme Court in Rana Vidya under Section 15(1) of the Delhi Rent Control Act. In the second
Bhushan Singh v. Rati Ram, 1969 U.T (SC) S6 (7), clearly held case, it is, indeed. not in dispute that the appellant is the sole
'that in cider to see whether a person has come into possession as proprietor of the firm M/s. Spectra India and thus, for all intents
atenant, an unregistered document can be seen under proviso to and purposes the appellant admittedly is the tenant in view of the
Section 49 of the Registration Act. In the cited case, a fact that a sole proprietary firm is not a legal entity.
panchayatnama had been executed which purported to create a
permanent lease. The question which arose was whether a person
who came into possession of the immovable property on the basis 4(a). Counsel for the appellant has
of the said panchayatnama was a tenant or not? This Court held as vehemently argued that both the eviction
follows:
petitions were not proved to have been
The Panchayatnama in the present case, instituted by any duly authorised person on
thereforee, is not admissible in evidence for behalf of the respondent and thus, the
the purpose of proving the permanent lease eviction petitions should have been
dismissed on that score alone. He has
pointed out that both the eviction petitions a Notary of the U.S.A. cannot be taken cognisance of in India by
any courts and the presumptions which are available under
have been signed by the respondent's father Sections 57 & 85 of the Indian Evidence Act would not at all be
as General Attorney while no valid power of applicable lo the powers of attorneys in question. He has argued
that the Act being a special Act would apply and in view of
attorney has been proved in his favor. Section 11 of the Act any reference to a Notary Public in any other
Hence, he had no authority to sign the law has to be construed as a reference to a Notary entitled to
practice under the Act and thus, reference to Notary Public under
eviction petitions and institute the same. Sections 57 & 85 would bo construed to mean reference to
Before I deal with this contention of the Notaries entitled to practice under the Act. It has been further
argued by the learned counsel for the appellant that even if it is to
learned counsel for the appellant, I may refer be held that a power of attorney attested by a Notary Public of the
to the facts as they have been proved on the U.S.A. is admissible in evidence, and necessary presumptions can
be drawn in respect of such a document under Sections 57 & 85 of
record. In both the cases the lease-deeds the Evidence Act, even then such presumptions are not available to
have been signed by the appellant as lessee the first power of attorney produced in the proceedings inasmuch
as that power of attorney is not authenticated and attested so as to
and the respondent's father as attorney of the draw the necessary presumptions under the Evidence Act. So, he
respondent. So, it is evident that it is has argued that if the power of attorney is held to be not admissible
in evidence the eviction petitions filed by respondent's father are
respondent's father, who had inducted the nut maintainable as they have not been instituted by any duly
appellant as tenant in the premises in both authorised person. He has further argued that even though it is held
that these power of attorneys are admissible in evidence even then
the cases. In these cases, the respondent had unless and until it. is proved that the person who purported to sign
acted through her father in letting out the as Notary Public is proved to be Notary Public, the necessary
presumption under Sections 57 & 85 of the Evidence Act cannot
premises. After the appellant who had been be raised. He has also argued that the second power of attorney
inducted in the premises in question by even if it is held to be admissible in evidence and presumptions
under Sections 57 & 85 of the Evidence Act are liable to be drawn
respondent's father on the basis of the lease- even then the said power of attorney would not have the effect of
deeds executed by respondent's father on validating the illegal institution of the two eviction petitions.

behalf of the respondent he cannot, in my (6) Counsel for the respondent on the other hand, has vehemently
opinion, in law take the plea that the argued that there has been reciprocity in practice that the matarial
respondent's father had no power of attorney acts of the Notaries Public of India and of U.S.A. are recognised
respectively in each other's country and thus even though no
in his favor to file the eviction petitions. notification had been issued by the Central Government under
Accepting the respondent's father as attorney Section 14 of the Act even then the matarial acts of the Notary
Public of U.S.A. are recognisable in India on account of previous
of the respondent-landlady the appellant practice and procedure and so, the provisions of Sections 57 & 85
took the advantage of having the premises of the Evidence Act are applicable. He has argued that even though
the first power of attorney is not properly attested and
on lease and the appellant should be deemed authenticated by the Notary Public, yet once it is shown that the
to be estopped from taking the plea that the second power of attorney has been duly authenticated and attested
by a Notary Public, the same would have the effect of validating
respondent's father is not the duly the acts of the respondent's father in instituting the eviction
constituted attorney of the respondent. petitions on her behalf inasmuch as the second power of attorney
clearly mention that the respondent validates the acts of her father
taken on her behalf in instituting the said eviction petitions. The
(5) During the proceedings before the Additional Rent Controller, first point, hence, which is required to be decided in this context is
a photo copy of the power of attorney marked A1 was proved. The whether the matarial acts of the Notary Publics of the U.S.A. arc
original power of attorney was also brought in Court. It appears recognisable in India or not and whether before such acts are given
that the original power of attorney dated September 3, 1985, as legal recognition by the courts and authoriteis in India, is it
signed by Notary Public of New Jersey and a seal of the said mandatory that the Central Government must issue a notification
Notary Public stood also affixed on it. It was not mentioned in the under Section 14 of the Act in this regard. Before coming into
said power of attorney as to whether the same had been force of the Notaries Act, 1952. there was no statutory law laid
authenticated and attested by the said Notary. During the pendency down for appointment of Notaries Public in India except for the
of the appeals before the Rent Control Tribunal, another power of purposes of Negotiable Instruments Act, 1980-81 but under
attorney dated August 31, 1987, was produced which had the due Section 138 of the Negotiable Instrument Act. 1980-81 the
authentication and attestation by the same Notary Public of New Government could appoint Notaries Public in India only for the
Jersey and seal of the said Notary Public also stood affixed on the limited purposes of performing functions under that Act. However.
said power of attorney. The contention raised by the learned by virtue of an ancient English statute, the Master of Faculties in
counsel for the appellant is that both the power of attorneys are not England used to appoint Notaries Public in India for performing all
admissible in evidence inasmuch as there has been issued no recognised matarial functions and even after India became
notification by the Central Government as required by Section 14 independent, such Notaries Public appointed under the English
of the Notary Act, 1952 (for short 'the Act') for recognising the statute continued to function in India, the object of the bill was to
material acts of the notaries of the United States of America in employer the Central and State Governments to appoint Notaries
India. He has argued that unless and until a notification under the generally for all recognised matarial purposes and to regulate the
Act is issued, the power of attorneys attested and authenticated by profession of such Notaries. Section 2(d) of the Act defines
'Notaries' to Mean a person appointed as such under the Act. the court noticed the provisions of Sections 11 & 14 of the
Section 3 empowers the Central and State Governments to appoint Notaries Act. The. court also noticed that certain notifications have
the Notaries. Section 4 requires the respective Governments to been issued under Section 14 by the Central Government in respect
maintain such register of the Notaries. Section 8 enumerates the of certain other countries and then placing reliance on the case of
functions to be performed by a Notary. Section 9 places a bar of Abdul Gaffar (Supra) and opining that the impact of Section 14 of
any person to practice as Notary unless he is duly appointed. the Notary Act having been not noticed in the case of National &
Section 10 deals with the procedure for removing the Notaries so Grindlays Bank (supra) the court did not give any opinion
appointed. Section 11 reads as follows: mentioning that as full dress arguments have not been advanced he
would not go into the matter. So. this judgment does not lay down
any ratio contrary to what has been laid down by Yogeshwar Dayal
Ally reference to a Notary Public in any J. in the case of National & Grindlays Bank (supra). It is true that
other law shall be construed as a reference to the impact of Section 14 of the Act was not specifically considered
in the said judgment and even in the judgment given by the
a Notary entitled to practice under this Act." Supreme Court. referred to above, the provisions of Section 14 of
the Act were not referred to or discussed.
(7) Counsel for the appellant has argued that the Notary Public
mentioned in Sections 57 & 85 of the Evidence Act should mean to (9) Counsel for the appellant has vehemently argued that the
make reference to a Notary entitled to practice under this Act. decision of the Supreme Court has been given on different point
There is a fallacy in this argument. Supposing a notification had and the point now being raised by him in these appeals being not
been issued under Section 14 of the Act by the Central raised and considered by the Supreme Court, this, judgment of the
Government to the affect that matarial acts of Notaries of a Supreme Court is of no help in showing that in absence of any
particular foreign country shall be recognised within India, in that notification under Section 14 of the Act 'he powers of attorneys
situation how it could be drought into cognisance the said Notaries endorsed by Notary Publics of a foreign country would be
Public of said foreign countries in line with the provisions of admissible in evidence. The question which arose for consideration
Section 11. Obviously the Notaries appointed in foreign country before the Supreme Corn was as to whether in case a particular
are not entitled to practice under the provisions of the Notaries Act, power of attorney has been endorsed by a Notary Public, a
1952. Section 11 obviously makes reference to Notaries Public of presumption could be raised or not that it has been duly executed.
India. If any statute makes reference to a Notary Public practicing In the cited case, one Verrion Seth executed a power of attorney in
in India, obviously Section 11 would come into play and such California in favor of Sardar Kartar Singh authorising him to sell
Notary Public would be construed to have a reference to a Notary his property in India. This power of attorney was witnessed by one
entitled to practice under this Act. Section 14 is the enabling Daniel. Kartar Singh executed a sale deed and presented it for
provision. No provision in this statute lays down that previous registration and the sale deed was registered. The property was
practice and procedure of matarial acts being recognised in India in subject to mortgage. The vendees brought a suit for redemption of
respect of the Notaries of foreign countries are not to be recognised mortgage. A plea was taken that the sale deed was invalid as it has
henceforth after the enforcement of the Notaries Act, 1952. A been executed by a person who was not legally authorised attorney
number of rulings have been cited on both sides' in support of their of the vendor. During the pendency of the suit another power of
respective contentions to which I shall now presently refer. attorney executed by the vendor in favor of Kartar Singh was
produced which validated the acts of Kartar Singh in executing and
registering the sale deed on behalf of the vendor. That power of
(8) Counsel for the appellant has cited Haji Abdul Gaffar v. Madan
attorney had a certificate in accordance with laws of California
L. Khandelwal (1066) 2 Cal 35. In this case, a power of attorney
appended to it showing that it had been subscribed and sworn in
attested and authenticated by a notary of Pakistan was sought to be
presence of the Notary Public of the State of California. A
relied upon. After referring to the provisions of Section 14 of the
contention was raised that the Notary Public before attesting the
Notaries Act, the court gave a finding that unless and until a
power attorney should have satisfied himself that the person
noti'fication is issued by the Central Government the said power of
signing the power of attorney is the real person and he had signed
attorney attested and authenticated by Notary Public of Pakistan
the power of attorney in his presence. It was argued that as the first
cannot be taken cognisance of and no presumption can be raised in
power of attorney did not on the face of it, show that it had been so
respect of such power of attorney under Section 85 of the Evidence
authenticated by the Notary Public, hence, it was invalid and it was
Act. The reason given for coming to this ratio is that there is no
contended that the second power of attorney though duly
reciprocal arrangement between India and Pakistan regarding the
authenticated would not validate the sale deed executed by the
power of attorneys of respective countries being recognised in each
attorney on the basis of invalid power of attorney. The Supreme
other's country. Then reference is made to Interads Advertising,
Court held that the first power of attorney did not comply with the
Private Limited v. Bentrex & Company & Other.,, (1983) 53 Delhi
requirement of law, so it would not have the effect of living the
646 wherein a power of attorney notarised ' by a Notary Public of
power to the attome to execute the sale deed and present it for
Singapore was produced and the said power of attorney had not
registration as the said power of attorney was not authenticated in
been authenticated by Indian High Commission at Singapore. An
accordance with law. Under Section 33 of the Indian Registration
objection was raised that the courts in India cannot take judicial
Act, it was incumbent that an Indian residing abroad should get the
notice of the power of attorney authenticated by a Notary Public
document authenticated by a Notary .Public. The first power of
abroad. An argument was raised that till a Notary Public of a
attorney did not even show that the person who signed as a witness
foreign country is recognised in India such a power of attorney is
was a Notary Public even and there was no endorsement of
not admissible in evidence. On the other hand, it was contended
authentication by the Notary Public. As regards second power of
that Section 85 of the Evidence Act would be applicable to a power
attorney, the Supreme Court held that it was executed before a
of attorney endorsed by a Notary Public of a foreign country and
Notary Public who complied with the laws of California and
presumption under Section 85 should be raised. Reliance was
authenticated the document a? required by that law. It was held
placed in support of this contention on National and Grindlays
that although the Notary Public did not say in his endorsement that
Bank Limited v. M/s. World Science News & Others,
the executant had been identified to his satisfaction, still the same
MANU/DE/0106/1976 : AIR1976Delhi263. After analysing the
inference would flow from the fact that the Notary had endorsed
judgment given in National & Grindlays Bank which was based on
on the document that it had been subscribed and sworn before him
a ratio given by the Supreme Court in Jugraj Singh & Another v.
and the court held that the said power of attorney is valid and
jaswant Singh & Others, MANU/SC/0413/1970 : [1971]1SCR38
effective both under Section 85 of the Evidence Act and Section 33 considered had not been raised or considered. There is no dispute
of the Indian Registration Act. It was also held that it would have abut the principle of law as laid down in Ballabhdas Mathuradas
also the effect of validating the act of the agent of executing the Lakhani & others v. Municipal Committee, Malkapur,
sale-deed and setting it registered on behalf of the vendor as the MANU/SC/0391/1970 : AIR1970SC1002 that a decision of the
principal could always ratify such an act of his agent. Supreme Court on a particular point is binding on the High Court
and it cannot be ignored on the ground that the relevant provision
was not brought to the notice of the Supreme Court. A question
(10) It is clear that the point whether there exists any reciprocity
which fell for decision was whether a suit for refund of tax paid to
between the U.S.A. and India for recognising respective acts of
the Municipality is maintainable, or if the suit is maintainable,
Notaries of respective countries was not urged and decided. It was
whether the levy of the tax by the municipality was valid in law?
also not urged as to what could be the impact of Section 14 of the
The first question stood concluded by the judgment of the Supreme
Notaries Act. So, it cannot be held that any binding ratio of law has
Court in Bharat Kala Bhandar v. Municipal Committee of
been laid down by the Supreme Court by this aspect of the matter
Dhamangaon, MANU/SC/0267/1965 : [1966]59ITR73(SC) By
which has been urged by the learned counsel for the appellant in
that judgment the Court held levy of tax in excess of the amount
the present appeals.
prescribed by Article 276 of the Constitution by the Municipal
Committee as invalid as the municipality has no authority to levy
(11) Counsel for the respondent has, however, argued that the ratio the tax in excess of the rate permitted by the Constitution and the
of law laid down by the Supreme Court in the aforesaid case is suit for refund of tax in excess of the amount permitted by Article
binding under Article 14 of the Constitution of India en this Court. 276 was maintainable. The High Court did not follow that
He has argued that even though a particular argument has not been judgment as it thought that the relevant provisions were not
raised on a point before the Supreme Court, still it should be brought to the notice of the Supreme Court. It was held that once
inferred that the said argument must have been in the mind of the the Supreme Court gives a decision on a particular point that
Supreme Court when deciding a particular point and oil such a decision on that the said decision had been given. without
ground the judgment of the Supreme Court cannot be ignored. He considering a particular argument or particular provision of law.
has cited T. Govindaraja Mudaliar v. The State of Tamil Nadu & Reference was made to Ambika Prasad Mishra v. State of U.P. &
Others, (16) in which it was laid down that even if certain aspects Others, : [1980]3SCR1159 where it was held that every new
of a question were not brought to toe notice of the court, the court discovery or argumentative novelty cannot undo or compel
would decline to enter upon reexamination of the question since reconsideration of a binding precedent. That is correct. But where a
the decision had been followed in other cases. The Supreme Court particular point was never raised and argued, it cannot be inferred
had referred to the legal position existing when some previous that a decision has been given on that particular point. As already
judgments had been given by the Supreme Court while referring to mentioned above, that if in deciding a particular point, some
well-known case of P. C. Cooper v. Union of India, argument has not been advanced or some provision has not been
MANU/SC/0011/1970 : [1970]3SCR530 It was mentioned that brought to the notice of the Supreme Court, still decision on that
before that cane it was not possible to challenge- chapter IV-A of point would be binding. The Supreme Court has clarified the
the Motor Vehicles Act as being vocative of Article 19(l)(f) owing position in Municipal Corporation of Delhi v. Gurnam Kaur,
to the decision of the Supreme Court that Article 19(l)(f) could not MANU/SC/0323/1988 : AIR1989SC38 In this judgment it has
be invoked when a case fell within Article 31 and that was the been held that a decision is per inquirium if given in ignorance of a
reason why the Supreme Court in all the previous decisions statute or rule having a force of statute. It was observed that the
relating to the validity of Chapter IV-A proceeded on an precedent ab silentio and without argument are of no moment. It
examination of the argument whether there was infringement of was further observed that the doctrine of precedent is that a matter
Article 19(1)(g) and clause (f) of that Article could not possibly be that has once been fully argued and decided should not be allowed
invoked. Then, Court referred to K. K. Kochuni v. State of Madras, to be reopened, and weight accorded to dicta varies with the type
MANU/SC/0019/1960 : [1960]3SCR887 and held that after the of dicta. If where the decision is given on a totally different point,
said case no doubt was left that the authority of law seeking to then the same cannot be considered binding if another point arises
deprive a person of his property otherwise than by way of for decision which was never urged before the Supreme Court. So,
acquisition or requisition was open to challenge on the ground that this Court has to independently consider whether in absence of any
it constituted infringement of the fundamental rights guaranteed by notification under Section 14 of the Notaries Act the power of
Article 19(1)(r). The question which was being considered by the attorneys endorsed by Notaries Public of Usa are admissible in
Supreme Court was whether the previous judgment given between evidence or not Counsel for the respondent has cited In re : K. K.
the parties was rest judicata? The question was sought to be re- Ray (Private) Limited. MANU/WB/0150/1967 : AIR1967Cal636
opened on the ground that ill view of the previous interpretation In the cited case. an affidavit attested by Notary of New York
given by the Supreme Court, a challenge could not be made to (U.S.A.) was sought to be relied upon. The Court referred to the
Chapter IV-A on the ground that it infringed Article 19(1)(f). The practice of recognition of matarial acts of foreign countries based
Supreme Court repelled this argument and held that such a on history and tradition and observed as follows:
challenge was available when the previous case was decided in
view of the ratio laid down in Kochuni's case (supra) and in that
connection the Supreme Court held that even if certain aspects of a The Notary Public is an institution of very
question were not brought to the notice of the Court, the Court
would decline to enter upon re-examination of the question since
ancient origin. It is an institution of great
the decision had been followed in other cases. It held that the utility and the Notary Public is an officer
binding effect of a decision does not depend upon whether a
particular argument was considered therein or not provided that the
recognised by the whole commercial world
point with reference to which an argument was subsequently and a certificate by a Notary Public,
advanced was actually decided. In the present case the point which
is being raised in the present appeals as to the impact of Section 14
competent to administer an oath to persons
of the Notaries Act was never raised before the Supreme Court. So, making declarations or affidavits, is
it cannot be held that the Supreme Court has given any ratio on
that particular point. It may be that if a particular point is decided
sufficient evidence of the execution of the
by the Supreme Court then the said decision is binding even instrument to which it refers. The Court
though some arguments which could have been raised and
further observed as follows : "It is common required by statute or statutory rule, take
knowledge that the office of a Notary Public judicial notice of the seal and signature of a
had its original in the civil institutions of Notary Public, for instance, under the
ancient Rome. Subsequently, the Notaries English Commissioners for Oaths Act, 1889
found their way in England and were or old Rules of the Supreme Court, England
regarded as originally officers of the civil Order 38, Rule 6. ".....In Brooke's Treatise
and the canon law, and acted by imperial which is an authority on this subject and
and Papal authority. The records of Edward which I have just quoted, this point is
the Confessor mention deeds attested by a discussed at pp. 52-53. It is said there :
Notary. In a deed by King John dated A.D. "Where, thereforee, an affidavit affirmation,
1199 it was supposed to be written and declaration, etc. is sworn or taken before any
attested by one Master. Philip, a notary, who of the persons mentioned in this rule no
was described as a Notary of the Pope. verification of the seal or signature is
Many of the Notaries at that time were necessary; but where it is sworn or taken in
created by the counts palatine, who not only a country not under the dominion of His
made the appointments themselves but also Majesty, before a foreign notary, or before a
delegated their powers to English person authorised by foreign law, the
churchmen. Matters of a commercial nature authority and the signatures of the notary or
gradually came to dominate the work of the other person must be verified. The
Notary Public, and there grew up a verification required is a certificate annexed
separation from their ecclesiastical origin. It to the affidavit, or other document,
is also common knowledge that the certifying that the person before whom it
functions of an English Notary are not was sworn or taken was duly authorised to
defined by any statutory provision or rule. administer oaths in the country in which it
Generally speaking no person in England is was sworn or taken, and such certificate
entitled to practice as a Notary Public or do must be signed by a British consul or vice-
any matarial acts unless he has been duly consul, or verified by the seal of the High
sworn, admitted and enrolled in the Court of Court or of a Local Court of Record of the
Faculties belonging to the Arch Bishop of said country." Indeed, the learned Editor of
Canterbury. A part of Indian legal history is Brooke's Treatise, 8th Edition, at p. 182
that it was these persons before the year goes on to observe further and more clearly
1952 who practiced as Notary Public in on this point in the following terms :
India. In the year 1952 the Indian Notaries "Powers of attorney executed by foreign
Act came into operation to which I shall companies should, in addition to an affidavit
make a reference presently. Brooke's verifying execution, have attached to them
Treatise on the Office and Practice of a an affidavit, made preferably by a notary
Notary of England, 8th Ed. p. 19, points public before a British consular Official,
out : "From a remote period English notaries proving (1) that the company is duly
have exercised the right to administer oaths constituted and registered in accordance
and take affidavits. These affidavits are, for with the local law of the foreign country; (2)
the most part, intended for use in the British that A, B and , the signatories, are
dominions abroad and in foreign countries respectively directors and Secretary as the
where matarial acts are recognised. They case may be, of the said company and (3)
may also act as commissioners for oaths that the company is bound and engaged by
under commissions granted by colonial and the signatures of A, B and C, in accordance
foreign authorities : English Courts, when with the statutes or articles of association of
the said company and the local law." Now eviction petitions was duly ratified in the second power of
attorney. Such ratification can be done is obvious from the law laid
all these formalities have been fully satisfied down by the Supreme Court in the case of Jugraj Singh (supra).
in the present case. Indeed, in that authority Counsel for the appellant tried to distinguish that judgment by
arguing that the ratio laid down in that judgment could not apply to
just quoted above again at pp. 52-53 certain institution of the eviction petitions or suits. I do not see any reason
decisions are noted. Out of those decisions, I as to why the said ratio should not be given full effect. After all,
what has been laid down by the Supreme Court is that an act of the
shall select some as appropriate and relevant agent, although shown to be unauthorised when the act was
for the point under decision before this committed, still the Principal can subsequently execute a document
ratifying the said act.
Court."
(15) Counsel for the respondent also cited a number of judgments
(12) The Court also noticed the provisions of Section 14 of the to show that even though initial institution of suits is bad, still the
Notaries Act and satisfied itself at first whether there is reciprocity same could be remedied by subsequent act of the principal. In
of matarial acts of Notaries of India being recognised in U.S.A. Allah Bakhsh and Another v. Municipal Committee of Rohtak Air
and vice versa and it held that such a matarial act of Notary of 1926 Lah 223 it was laid down that the person, on whose behalf an
U.S.A. is recognisable in India and thus, the said document is appeal is filed, has accepted or ratified the action of the person
admissible in India. The Court also advised that it is high time that who filed the appeal on his behalf, the person filing the appeal
the Central Government should issue necessary notifications also would be considered to have the authority to file the appeal. In
under Section 14 of the Notaries Act. It is the contention of the Danish Mercantile Co. Ltd. & Others Beaumont & Another (1951)
learned counsel for the respondent that Notaries Act had not made 1 Ch.68U 27 same principal was enunciated wherein it was laid
illegal and well-established previous practice of recognising the down that it is open at any time to the purported plaintiff to ratify
matarial acts of Notaries of U.S.A. or England by the Indian Courts the act of the solicitor who started the action without authority and
when such acts of Notaries of India are recognised by the said also to adopt the proceedings which had already taken place. It was
countries as well. Yogeshwar Dayal, J., in the case of National & observed that when that has been done, then, in accordance with
Grindlays Bank (supra) has held such a power of attorney to be the ordinary law of principal and agent, and in accordance with the
admissible in evidence and presumptions under Sections 57 & 85 ordinary doctrine of ratification, the defect in the proceedings as
of the Evidence Act were held to be available to such a document originally constituted is cured, and it is no longer open to the
although he relied upon the case of Jugraj Singh (supra) for giving defendant to object that the proceedings then ratified and adopted
that finding. Sultan Singh, J., in Suit No. 671/77, Bank of India v. were in the first instance brought without proper authority. In
Ajaib Singh, decided on April 20:. 1979, (24) followed the above Subbiah Pillai @ S. S. M. Subramania Pillai v. Sankarapandiam
case for giving the same opinion. However, independently of these Pillai & others MANU/TN/0293/1947 : Air 1948 Mad 369 a plaint,
two decisions of two Judges of this Court, I hold that the which was filed without signatures of 'ihe plaintiff, was held to be
provisions of Section 14 of the Notaries Act do not place any bar validly filed when the defect was cured by permitting the plaintiff
in recognising the matarial acts of such countries wherein the to sign the plaint later on. This defect was removed at the stage of
matarial acts of Notaries of India are recognised. Even in Abdul appeal. In Dahyabhai Girdhardas v. Bobaji Dahyaji Kotwal &
Jabbar & Others, MANU/UP/0256/1980 : AIR1980All369 it was Others, MANU/MH/0051/1953 : AIR1953Bom28 a son of the
held that Section 85 of the Evidence Act applies equally to plaintiff had signed the plaint who had no authority to do so
documents authenticated by Notaries Public of other countries and initially but the defect was allowed to be cured by allowing the
there is no reason to import the provisions of Notaries Act for plaintiff to sign the plaint and it was held that the plaint would be
interpreting the provisions of Section 85 of the Evidence Act. I deemed to be instituted validly from the very beginning. Similarly,
agree with these observations. Hence, I repel this contention of the Nadella Satyanarayana v. Yamanoori Venkata Subbiah, Air 1957
learned counsel for the appellant that the said power of attorneys Andhra Pradesh 172, (30) a Full Bench of the said High Court held
endorsed by Notary Public of U.S.A. by themselves arc not that even if an execution application has been filed by a pleader
admissible in evidence. who is not duly appointed, still the act of the pleader could be
ratified by the litigant subsequently. Same ratio has been laid down
in All India Reporter Limited v. Ram Chandra Dhondo Datar,
(13) Counsel for the appellant has, then, contended that till It is
MANU/MH/0071/1961 : AIR1961Bom292 In Ashok Kumar Daw
proved that the person who signed the said power of attorney was
& Another v. Gobinda Chandra Dev & Others,
the duly appointed attorney, the court cannot draw any
MANU/WB/0076/1984 : AIR1984Cal337 where the proceedings
presumption under Sections 57 & 85 of the Evidence Act. I am
have been initiated without There being a power of attorney in
afraid that the very purpose of drawing presumption under
favor of the counsel concerned fnd subsequently the power of
Sections 57 & 85 of the Evidence Act would be nullified if proof is
attorney was given. It was held that the effect of filing of the power
to be had from the foreign country whether a particular person who
of attorney subsequently v. could be that the appellants had ratified
had attested the document as a Notary Public of that country is in
or are ratifying all acts done or actions and steps taken by the said
fact a duly appointed Notary or not. When a seal of the Notary is
counsel. Counsel foe the appellant has cited Secretary, Notified
put on the document, Section 57 of the Evidence Act comes into
Area Committee, Okara v. Kidar Nath & Others. Air 1932 Lah
play and a presumption can be raised regarding the genuineness of
388(33), which appears to be contrary to the view laid down by so
the seal of the said Notary, meaning thereby that the said document
many cases above. So, the same cannot be considered to be a good
is presumed to have been attested by a competent Notary of that
law. He has also referred to Punjab Zamindars Bank Ltd. v. Madan
country.
Mohan Singh & Others, Air 1936 Lahore 321, (34) where it was
held that the ratification done by the principal after the expiry of
(14) It is true that the first power of attorney was not duly limitation is of no effect. Such is not the case in the present
authenticated by the Notary, hence, the same was not valid to give appeals. There was no question of limitation in the cases in hand.
any authority to the attorney to act on behalf of the respondent.
However, the second power of attorney produced at the stage of
(16) So, in view of the above discussion, I hold that the valid
first appeals clearly was a valid document and the contents of the
power of attorney produced in the appeals, the contents of which
said document show that the act of the agent in instituting the
clearly show that the respondent had ratified and validated the act
of her father in instituting the eviction cases against the appellant,
cures the initial defect, if any, and it must be held that the eviction
petitions were instituted by a duly authorised person. So, I find no
force in this contention of the learned counsel. for the appellant.

(17) Lastly, it has been contended by the learned counsel for the
appellant that the defense of the appellant should not to have been
struck out under Section 15(7) of the Delhi Rent Control Act and
he has contended that at least at the time when during the pendency
of the appeals before the Rent Control Tribunal the. appellant had
admittedly deposited the entire arrears of rent and up-to-date rent
and also continued to deposit month to month rent, the Rent
Control Tribunal should have set aside the order of the Additional
Rent Controller by which the defense of the appellant was struck
out. He has urged that there is a discretion vested in the lower
courts for not striking.out the defense if some good cause is shown
for non-deposit of rent in. compliance with the order made under
Section 15(1) earlier. It is true that the courts have discretion in the
matter but that discretion has to be exercised is a judicial manner.
In the present case, the appellant has been guilty of contumacious
act. He had the opportunity of depositing the rent a number of
times. At first, an order was made under Section 15(1) by the Rent
Controller giving him necessary time for depositing the rent, the
appellant did not deposit the rent. The matter was taken to the Rent
Control Tribunal against the interlocutory order made under
Section 15(1). The appeals were withdrawn and further time was
obtained from the Rent Control Tribunal for depositing the rent,
yet no rent was deposited. Moreover, after an application under
Section 15(7) was moved, again the appellant got the opportunity
at least to file some reply to that application and before filing any
such rep]y the appellant could still deposit the rent but the
appellant neither deposited the rent nor filed any reply to the
application under Section 15(7). No reason whatsoever as such was
furnished to the Controller for this willful contumacious defaults
being committed by the appellant in not at all complying with the
order made under Section 15(1). In such a case, it is too much to
say that the discretion ought to have been exercised in favor of the
appellant. It is to be remembered that when the eviction orders had
been made by the Controller, the appellant filed the appeals against
the said eviction orders and obtained a conditional order of stay
and then, for complying with the condition he deposited the rent.
The appellant is guilty of contumacious conduct and has willfully
not complied with the order made under Section 15(1) and thus,
there could be no occasion for the Rent Control Tribunal to have
set aside the order of the Controller striking out the defense of the
appellant in both the eviction cases.

(18) No other point has been urged. The orders of eviction are well
based because on merits it is not disputed that the notices of
demand were duly served on the appellant. The appellant failed to
either deposit or tender the arrears of rent within two months of the
service of notices of demand. No reply was sent to the notices of
demand. The ground of non-payment of rent was well made out
and the appellant did not care to enjoy the benefit of Section 14(2)
of the Delhi Rent Control Act by complying with the order made
under Section 15(1) of the said Act.

(19) I, hence, dismiss both the appeals with costs. Counsel's fee Rs.
500.00 in each appeal.

© Manupatra Information Solutions Pvt.