Whether deficiency of formal confirmation of affidavit by oath vitiates whole proceeding?

IN THE HIGH COURT OF BOMBAY (NAGPUR BENCH)

W.P. No. 1020 of 2008

Decided On: 01.04.2008

Appellants: Dilip S/o Madanlal Jain
Vs.
Respondent: Smt. Pritam Kaur Wd/o Late Dr. M.S. Madan

Hon'ble Judges/Coram:
A.H. Joshi, J.

Civil - Affidavit - Petitioner challenged eviction order passed against him by Trial Court as well as Appellate - Whether deficiency of formal confirmation of affidavit by oath vitiates whole proceeding? - If contents of affidavit were duly proved and it has been allowed to go on record unobjected then deficiency of confirmation of affidavit would be deficiency of form than of content - Held,order of Trial Court as well as Appellate Court accordingly upheld - Petition dismissed

Citation: 2008(4)ALLMR575, 2008(5)MhLj48

1. The respondent-landlord is present by caveat.

2. Rule. Rule is made returnable forthwith.

3. Learned Advocate Mr. Shelat waives service for the respondent.

4. The landlord sought eviction on the ground of bona fide personal requirement, and the suit has been decreed.

5. The tenant preferred the appeal, which has been dismissed by order dated 31-12-2003.

6. The tenant is before this Court filing the present petition. The tenant's contention as seen from the petition are as follows:

(1) The landlady filed her affidavit of oral evidence but did not prove the same in her evidence. It was mandatory to prove the signature and contents of affidavit and if that is not proved her affidavit is not evidence and has to be ignored as laid down in the case of FDC Ltd. v. Federation of Medical Representatives reported in MANU/MH/0038/2003 : AIR2003Bom371 .

(2) The Landlady has deposed in her affidavit about need of the suit shop block in possession of the tenant for her two sons who are Doctors and are lucrative practice. They required the shop premises for their Hospital. The plaintiff has not examined any of her son to prove their need and the evidence of the landlady Preetam Kaur neither sufficient nor satisfactory to prove the need of her son. The landlady never issued rent receipt for the rent received and it is the case of the tenant that he had paid the rent to the landlady for which no receipt was given to him by the landlady.

(3) It is not proved that the landlady really needed the small room measuring 10 x 10 ft. in possession of the tenant for the Hospital purpose of her son, when in fact, the entire ground floor was in possession of her sons who are already doing business there.

7. It would be convenient to deal with the factual grounds quoted as items (2) and (3) in the foregoing paragraph first in order, and are dealt with in the paragraphs to follow.

8. The First Appellate Court has discussed in paragraph 10 of the judgment at pages 42 and 43 of the paper book about bona fide personal requirement. The Court has dealt with the nature of need.

9. The Appellate Court has found and confirmed the finding that the plaintiffs two sons Dr. R.S. Madan and Dr. Manmit Madan need the said premises for an Operation Theatre. The Court accepted the bona fide personal requirement in the background that though entire ground floor, except two shop blocks, including one with defendant which are in possession of tenants, the plaintiff has proved the need of one more room for using as Operation Theatre as the genuine need. The Appellate Court held that the landlord is the best Judge of his requirements.

10. The finding of fact recorded in para 10 of the judgment of Appellate Court is challenged on the ground of lack of adequacy of evidence.

11. The findings are not challenged on the ground of perversity or failure to consider any evidence, the question of bona fide personal requirement, and need of eviction on that ground is duly proved.

12. So far as the second aspect of hardship is concerned, the first Appellate Court has discussed this aspect, and recorded a finding in paras 11 and 12 that the tenant has not proved that he has made any efforts to seek any alternate accommodation. Moreover, admittedly, the defendant's brother also does the same business. The defendant has independent accommodation for his residence, and considering this aspect, the Appellate Court recorded a finding that the aspect of hardship also favours the landlord and not the tenant. The finding of fact on this point is not shown to be contrary to record. Tenor of submissions does not reveal that any serious challenge is made to this finding.

13. So long the findings are not challenged as perverse or otherwise illegal, the question of sufficiency of evidence is not open for challenge in a writ petition.

14. Moreover, these grounds are not seriously pressed as much as first point discussed hereinafter has been pressed.

15. The first point noted in para No. 6 above relied upon by the petitioner is analysed for convenience as follows:

(a) The plaintiff has tried to prove her case by filing affidavit as examination-in-chief.

(b) After production of affidavit, the plaintiff has not stepped into the witness box to state that the said affidavit is signed by her, drafted and drawn as per her instructions.

(c) In absence of this compliance, the said affidavit is not an evidence worthy of consideration as evidence at all, since the present is a case where the appeal is permitted by law. This step or stage was mandatory in view of the reported Judgment in case of FDC Ltd. v. Federation of Medical Representatives reported in MANU/MH/0038/2003: AIR2003Bom371 .

16. Learned Advocate for the petitioner then relied upon two reported judgments as namely:

(1) MANU/SC/0943/2003: AIR2004SC355 Ameer Trading Corporation Ltd. v. Shapoorji Data Processing Ltd. (2) MANU/SC/2518/2005 : AIR2006SC396 Shaikh Salim Haji Abdul Khayumsab v. Kumar and Ors.

17. It is a common ground that the suit being one where appeal was provided by law, the trial Court had allowed the evidence by affidavit, the plaintiff had stepped into the witness box and she was cross-examined on the foundation of the affidavit to be her examination-in-chief.

18. The objection raised by the present tenant in the present petition has been answered by the respondent by urging the following submissions:

(a) The objection based on the judgment in case of FDC Ltd. (supra) is a chance submission since when the case was already heard and decided. This point was not available to the petitioner as the field was not governed by the said judgment. However, on facts, it is clear that this objection was not raised in trial Court. It was taken in Appeal Memo, but it is not shown that it was pressed in Appellate Court.

(b) When the affidavit was tendered as evidence, as the examination-in-chief of the plaintiff, she had stepped into the witness box was administered oath and was cross-examined on the basis of the said affidavit. This was done without any grudge or demur or without raising any objection that the witness had not formally confirmed or reiterated the contents of the affidavit, which was the plaintiffs examination-in-chief.

(c) The affidavit was sworn and verified furtherance to the provision of Oath Act, and therefore, though the formal confirmation or reiteration could be considered to be necessary, in view of case of FDC Ltd. (supra), nevertheless, the sanctity attached to the oath under Oaths Act, 1969 read with Rules 4 and 5 of Order XIV, confers upon the said affidavit the appropriate value of being read as an affidavit of examination-in-chief.

(d) The defendant had cross-examined the witness on the said affidavit on the foundation that affidavit was examination-in-chief, without any grudge and demur and in the result, is now estopped' from raising this objection.

(e) In view of mandate of Section 99 of the Civil Procedure Code, the defect does not go to the root of the case, does not vitiate the judgment, and ought not be entertained.

(f) The ground No. 9 in the memo of appeal raising the ground of validity and legality of oath, and formally reiterating the contents was not pressed as a ground of appeal thereby the landlord was denied an opportunity to meet this objection and rectify or overcome the same at an earliest occasion.

19. Learned Advocate for the respondent Shri Shelat strongly relies on the observations contained in para 9 and para 14 of the judgment in case of Shaikh Salim Haji Abdul Khayumsab v. Kumar and Ors. urging that 'the procedural principles are hand made and not the mysterious lubricant, not a resistance in the administration of justice'.

20. The fact of oath is even not denied. The objection based on FDC Ltd., case is that the oath has not been reiterated. It is not a case where there is total absence of oath. Had it been a case of said nature, the objection would not have been just procedural. This Court, therefore, considers that the sanctity of oath cannot be brushed aside as a procedural matter, yet on facts admittedly, it is a case where any objection is not raised at any stage as to oath being properly administered.

21. After considering the respective submissions, this Court finds that the ground of objection raising the question of legality or correctness of finding that petitioner's ground of objection is a procedural matter, is the ground now raised by the petitioner as a chance submission based on judgment in case of FDC Ltd. (supra). Moreover, the Hon'ble, Supreme Court in case of Shaikh Salim Haji Abdul Khayumsab v. Kumar and Ors. (cited supra), while putting a seal of approval on the view taken on FDC Ltd., case, has also considered that Rule 4 will have to be construed in joint reading with Rule 5 in appealable cases meaning thereby that the witnesses will have to be called for cross-examination and it be recorded in such manner prescribed in Rule 5. Once the witness is called for cross-examination, Rule 5 of Order 18 gets substantially complied with.

22. Therefore, the stage of need of witness coming into the witness box to assert and confirm own affidavit shall be rendered odious once the witness steps into the witness box, is administered oath and opposite party cross-examines the witness on the foundation that contents of the affidavit in the examination-in- chief, even in absence of exploration of formal confirmation and reiteration from the witness.

23. In the situation like in present case where the witness, parties and the advocates proceed on assumption that the affidavit has been allowed to go on record un-objected as examination-in-chief, the deficiency of formal confirmation of affidavit to be one of the witnesses own, becomes a deficiency of 'form' than of content.

24. As the affidavit has gone on record un-objected, it now becomes an objection as to the deficiency in complying with the need of showing to the witness the signature on the affidavit, and have it confirmed from him.

25. The need of reiteration in terms of the observation contained in the FDC Ltd., case cannot be applied with the same rigour and in retrospective operation as its substantial compliance will be deemed to have been done once the witness is before Court, is administered oath and is cross-examined on a foundation that the affidavit in Examination-in-chief is filed furtherance to Rule 4 of Order 18 of Civil Procedure Code without raising any objection. The failure to elicit from him that it is his affidavit by way of further examination-in-chief does not vitiate, destroy or nullify his testimony contained in said affidavit.

26. In the present case, the fact of existence of oath on record on the affidavit relied upon for the purpose of evidence by the plaintiff answers and satisfies the requisite compliance of the said affidavit being considered as "affidavit" of examination-in-chief within the connotation of the term as contemplated by Rule 4 of Order 18 of Civil Procedure Code.

27. In this background, the point now raised, and urged before the Court does not merit any weightage. The petition has no merit, it is dismissed. Rule discharged.

28. At this stage, the learned Advocate for the petitioner Shri A.S. Killor prays for time to vacate. The petitioner is free to make an application for time to vacate by giving standard undertaking. One week time is granted for furnishing such application, and move it before this Court. Learned Advocate for the respondent Shri Shelat agrees to stay hand and not to execute the decree for a period of one week.

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