In Rajni Shukla Vs. Special Judge Banda 2007(40 AWC 4176 a learned Single Judge of this court while considering the provision of Section 120 of the Evidence Act vis-a-vis the above decision of the Supreme Court in Janki Vasdev Bhojwani (Supra) concluded and held the husband and wife can depose for one another and as such directed that husband of the plaintiff to give oral evidence which shall be confined to the facts within his knowledge.
In view of above decision, there is no bar on part of the husband to depose on behalf of the plaintiff wife but his statement has to be confined to the facts within his knowledge.
Case :- WRIT - A No. - 11660 of 2009
Petitioner :- Smt. Munni Devi
Respondent :- Smt. Sona Devi And Others Order Date :- 9.9.2014
Hon'ble Pankaj Mithal,J.
Petitioner is the owner and landlord of house No.1167/16A (Old) present No.1244/3, situate in Gondu Ka Hata, Civil Line, Sipri Bazar, Jhansi.
Petitioner has purchased the aforesaid house vide sale deed dated 22.4.1992 and had given information of the said purchase to the sitting tenant respondent No.1 vide notice dated 28.5.1992 which was replied on 02.06.1992. Despite the above, respondent No.1 started depositing rent under Section 30 of U.P. Act No.13 of 1972 (hereinafter referred to as the Act) on the ground that there is a bona fide doubt as to the person entitle to receive rent.
Petitioner vide notice dated 22.1.01 demanded the arrears of rent and determined the tenancy of the respondent No.1. When the respondent No.1 failed to tender rent despite notice, petitioner instituted a suit in the small causes court for arrears of rent and eviction of respondent No.1on the basis of the aforesaid notice. The suit has been dismissed on the ground that the petitioner herself has not entered the witness box either to prove the notice or the service of the notice.
The above finding has been affirmed by the revisional court.
The judgment and order of the court of first instance dated 22.08.05 and that of the revisional court dated 27.09.08 have been impugned by the petitioner by means of this writ petition.
The submission of Sri K.K. Dubey, learned counsel for the petitioner is that the notice and the service of the notice was duly proved by the oral evidence of the husband of the petitioner. The courts below are not justified in discarding the evidence of the husband on the basis of the decision of the Supreme Court AIR 2005 SC 439 : 2005(2) SCC 217 Janki Vasdev Bhojwani Vs. Indu Sindh Bank Ltd. inasmuch as Section 120 of the Indian Evidence Act, 1872 permits the husband to depose on behalf of wife.
Shri B.N. Agarwal defends the orders of the courts below contending that the husband was only the power of attorney holder of the petitioner who is not entitle to appear as witness for the principal.
The petitioner in paragraph 4 of the plaint has clearly stated that he had issued and sent a notice dated 22.1.01 to the respondent No.1 which was got prepared by the Advocate Abhay Kumar Bhartiya and the said notice was served upon the respondent No.1 on 24.1.01 by refusal.
The respondent No.1 in reply to paragraph 4 of the plaint vide paragraph 4 of the written statement has stated that he had not received any notice and that he has not refused to accept any notice. The service by refusal has been manipulated by the petitioner in connivance with the postal authorities.
A plain reading of the above averments of the plaint and the written statement demonstrates that the respondent No.1 only denied the service of the notice and has not set up invalidity of the notice as a defence.
It has been settled in D.N. Mushi Vs. Gayatri Devi, 1961 A.L.J. 353, that the Courts can legitimately draw an inference that a notice purported to have been given by an Advocate on behalf of a party was so given unless the contrary is pleaded and proved. Therefore, there is presumption of a valid notice unless contrary is pleaded and proved.
The pleadings demonstrate that the respondent No.1 had not questioned the notice. He only disputed its service. Therefore, the giving of notice and its validity was accepted/admitted which required no evidence to prove it.
This apart the husband of the petitioner who has entered the witness box as PW1 clearly stated that the notice was got drafted by Abhay Kumar Bhartiya Advocate. It was signed by him in his presence. The carbon copy of said notice is paper No.7C. His wife ie the petitioner has accompanied him to the office of the Advocate for getting the notice dated 22.1.01 prepared and drafted. His wife instead of signing puts a thumb impression and that the notice bears her thumb impression.
The above notice was sent to the respondent No.1 by registered post receipt paper No.8C. It was sent at her correct address. The envelop containing the notice 9C as returned contains the correct and full address of respondent No.1. It bears the endorsement of refusal in the hand of postman.
The above statements of the PW1 the husband of the petitioner is also sufficient to prove the notice and its service but the issue is whether his evidence is admissible.
The Apex Court in Janki Vasdev Bhojwani (supra) which has been followed in Man Kaur (Dead) by LRs. Vs. Hartar Singh Sangha (2010) 10 SCC 512 has held that the plaintiff has to enter the witness box and state his own case on oath and if he does not do so to depose or to get cross-examined adverse inference can be drawn against him. The power of attorney holder of the plaintiff may also enter in the witness box but he cannot depose about the facts of which he has no personal knowledge.
The ratio of the above authorities is that the power of attorney holder of the plaintiff cannot depose about the facts which are within the personal knowledge of the plaintiff or which are not within the personal knowledge of the power of attorney holder. The above authorities are not on the proposition that the husband cannot depose on behalf of the wife or that power of attorney cannot appear as a witness at all for the plaintiff.
On the contrary Section 120 of the Indian Evidence Act, 1872 provides for the deposition of the husband and wife as witnesses. It reads as under:-
"120. Parties to civil suit, and their wives or husbands, Husband or wife of person under criminal trial-In all civil proceedings the parties to the suit, and the husband or wife of any party to the suit, shall be competent witnesses. In criminal proceedings against any person, the husband or wife of such person, respectively shall be competent witness."
The above provision clearly provides that in all civil proceedings the husband or wife of any party to the suit shall be a competent witness.
The aforesaid provision permits the husband to depose for the wife and the vice versa.
The above Rule of law has been enunciated on the well founded Indian mythology wherein husband and wife are believed to be one person and not a separate. It is in consonance with the concept of 'Ardhnariswar'. Even in western culture, wife is referred as a better half meaning to be part of the same person.
In Rajni Shukla Vs. Special Judge Banda 2007(40 AWC 4176 a learned Single Judge of this court while considering the provision of Section 120 of the Evidence Act vis-a-vis the above decision of the Supreme Court in Janki Vasdev Bhojwani (Supra) concluded and held the husband and wife can depose for one another and as such directed that husband of the plaintiff to give oral evidence which shall be confined to the facts within his knowledge.
In view of above decision, there is no bar on part of the husband to depose on behalf of the plaintiff wife but his statement has to be confined to the facts within his knowledge.
A similar view has been expressed by Bench of Andra Pradesh High Court in the case of Ved Pal Vs. Shakuntala @ Aruna Andhra Pradesh Law Times 35 wherein it has been categorically laid down that Section 120 of the Evidence Act permits the husband to speak on behalf of wife and that the husband can always speak about the factual circumstances in order to establish the case.
In K. Saroja Vs. Valliammal and others 1996 M.L.J. 199 it has been held that under Section 120 of the Evidence Act, the husband is a competent witness for the wife in civil proceedings.
This is exactly what has been done by the husband of the petitioner in the present case he has deposed about the facts within his personal knowledge. The statement made by the husband of the petitioner as PW1 is in respect of the facts which are within his knowledge pertaining to the issuance of notice through the advocate concerned.
Thus, in view of the aforesaid facts and circumstances and the legal position as enunciated above, the evidence of the husband of the petitioner so as to prove the notice and its service upon the respondent No.1 is admissible under Section 120 of the Evidence Act and the courts below manifestly erred in law in brushing it aside on the basis of the decision of the Supreme Court in Janki Vasdev Bhojwani (Supra) case and in dismissing the suit.
A distinction has to be made between deposition made by the power of attorney holder and that by the husband or the wife of the plaintiff. The evidence of the power of attorney holder may be limited and not to the standard of that of not in certain circumstances be competent to the husband or the wife of the plaintiff who can always depose on his/her behalf to prove the case though the said evidence may not be stretched to the facts beyond the personal knowledge of the deponent.
The last submission of Sri B.N. Agarwal, learned counsel for the respondent No.1. is that the respondent has denied the service of the notice and the husband of the petitioner cannot make any statement regarding it. The presumption under Section 27 of the General Clause Act is attracted where a notice is sent to the addressee at his correct address by registered post and the notice is deemed to be served in the normal course of business until and unless contrary is proved. The presumption therein is rebuttable in nature and it is open to the party rebutting the presumption to prove that the notice was not actually served by examining the postman, if necessary or by adducing other evidence.
The issuance of notice and its service as stated earlier was within the personal knowledge of the husband of the petitioner and he has discharged the burden of proving the same by his statement which has been held to be admissible in evidence in view of Section 120 of the Evidence Act. The respondents have done nothing or very little to rebut the presumption and to prove contrary to it. No evidence was adduced to deny the service of notice except for the bald statement that the respondent No.1 has not denied receiving it or that the service by refusal has been manipulated. The submission thereof is bereft of any merit.
Accordingly, the impugned orders dated 29.09.08 and 22.08.05 are quashed and the matter is remanded to the court of first instance for retrial in accordance with law and it is expected that the court will do well to decide the suit afresh as expeditiously as possible preferably within a period of six months from the date of production of the certified copy of this order.
Order Date :- 9.9.2014
Print Page
In view of above decision, there is no bar on part of the husband to depose on behalf of the plaintiff wife but his statement has to be confined to the facts within his knowledge.
Case :- WRIT - A No. - 11660 of 2009
Petitioner :- Smt. Munni Devi
Respondent :- Smt. Sona Devi And Others Order Date :- 9.9.2014
Hon'ble Pankaj Mithal,J.
Petitioner is the owner and landlord of house No.1167/16A (Old) present No.1244/3, situate in Gondu Ka Hata, Civil Line, Sipri Bazar, Jhansi.
Petitioner has purchased the aforesaid house vide sale deed dated 22.4.1992 and had given information of the said purchase to the sitting tenant respondent No.1 vide notice dated 28.5.1992 which was replied on 02.06.1992. Despite the above, respondent No.1 started depositing rent under Section 30 of U.P. Act No.13 of 1972 (hereinafter referred to as the Act) on the ground that there is a bona fide doubt as to the person entitle to receive rent.
Petitioner vide notice dated 22.1.01 demanded the arrears of rent and determined the tenancy of the respondent No.1. When the respondent No.1 failed to tender rent despite notice, petitioner instituted a suit in the small causes court for arrears of rent and eviction of respondent No.1on the basis of the aforesaid notice. The suit has been dismissed on the ground that the petitioner herself has not entered the witness box either to prove the notice or the service of the notice.
The above finding has been affirmed by the revisional court.
The judgment and order of the court of first instance dated 22.08.05 and that of the revisional court dated 27.09.08 have been impugned by the petitioner by means of this writ petition.
The submission of Sri K.K. Dubey, learned counsel for the petitioner is that the notice and the service of the notice was duly proved by the oral evidence of the husband of the petitioner. The courts below are not justified in discarding the evidence of the husband on the basis of the decision of the Supreme Court AIR 2005 SC 439 : 2005(2) SCC 217 Janki Vasdev Bhojwani Vs. Indu Sindh Bank Ltd. inasmuch as Section 120 of the Indian Evidence Act, 1872 permits the husband to depose on behalf of wife.
Shri B.N. Agarwal defends the orders of the courts below contending that the husband was only the power of attorney holder of the petitioner who is not entitle to appear as witness for the principal.
The petitioner in paragraph 4 of the plaint has clearly stated that he had issued and sent a notice dated 22.1.01 to the respondent No.1 which was got prepared by the Advocate Abhay Kumar Bhartiya and the said notice was served upon the respondent No.1 on 24.1.01 by refusal.
The respondent No.1 in reply to paragraph 4 of the plaint vide paragraph 4 of the written statement has stated that he had not received any notice and that he has not refused to accept any notice. The service by refusal has been manipulated by the petitioner in connivance with the postal authorities.
A plain reading of the above averments of the plaint and the written statement demonstrates that the respondent No.1 only denied the service of the notice and has not set up invalidity of the notice as a defence.
It has been settled in D.N. Mushi Vs. Gayatri Devi, 1961 A.L.J. 353, that the Courts can legitimately draw an inference that a notice purported to have been given by an Advocate on behalf of a party was so given unless the contrary is pleaded and proved. Therefore, there is presumption of a valid notice unless contrary is pleaded and proved.
The pleadings demonstrate that the respondent No.1 had not questioned the notice. He only disputed its service. Therefore, the giving of notice and its validity was accepted/admitted which required no evidence to prove it.
This apart the husband of the petitioner who has entered the witness box as PW1 clearly stated that the notice was got drafted by Abhay Kumar Bhartiya Advocate. It was signed by him in his presence. The carbon copy of said notice is paper No.7C. His wife ie the petitioner has accompanied him to the office of the Advocate for getting the notice dated 22.1.01 prepared and drafted. His wife instead of signing puts a thumb impression and that the notice bears her thumb impression.
The above notice was sent to the respondent No.1 by registered post receipt paper No.8C. It was sent at her correct address. The envelop containing the notice 9C as returned contains the correct and full address of respondent No.1. It bears the endorsement of refusal in the hand of postman.
The above statements of the PW1 the husband of the petitioner is also sufficient to prove the notice and its service but the issue is whether his evidence is admissible.
The Apex Court in Janki Vasdev Bhojwani (supra) which has been followed in Man Kaur (Dead) by LRs. Vs. Hartar Singh Sangha (2010) 10 SCC 512 has held that the plaintiff has to enter the witness box and state his own case on oath and if he does not do so to depose or to get cross-examined adverse inference can be drawn against him. The power of attorney holder of the plaintiff may also enter in the witness box but he cannot depose about the facts of which he has no personal knowledge.
The ratio of the above authorities is that the power of attorney holder of the plaintiff cannot depose about the facts which are within the personal knowledge of the plaintiff or which are not within the personal knowledge of the power of attorney holder. The above authorities are not on the proposition that the husband cannot depose on behalf of the wife or that power of attorney cannot appear as a witness at all for the plaintiff.
On the contrary Section 120 of the Indian Evidence Act, 1872 provides for the deposition of the husband and wife as witnesses. It reads as under:-
"120. Parties to civil suit, and their wives or husbands, Husband or wife of person under criminal trial-In all civil proceedings the parties to the suit, and the husband or wife of any party to the suit, shall be competent witnesses. In criminal proceedings against any person, the husband or wife of such person, respectively shall be competent witness."
The above provision clearly provides that in all civil proceedings the husband or wife of any party to the suit shall be a competent witness.
The aforesaid provision permits the husband to depose for the wife and the vice versa.
The above Rule of law has been enunciated on the well founded Indian mythology wherein husband and wife are believed to be one person and not a separate. It is in consonance with the concept of 'Ardhnariswar'. Even in western culture, wife is referred as a better half meaning to be part of the same person.
In Rajni Shukla Vs. Special Judge Banda 2007(40 AWC 4176 a learned Single Judge of this court while considering the provision of Section 120 of the Evidence Act vis-a-vis the above decision of the Supreme Court in Janki Vasdev Bhojwani (Supra) concluded and held the husband and wife can depose for one another and as such directed that husband of the plaintiff to give oral evidence which shall be confined to the facts within his knowledge.
In view of above decision, there is no bar on part of the husband to depose on behalf of the plaintiff wife but his statement has to be confined to the facts within his knowledge.
A similar view has been expressed by Bench of Andra Pradesh High Court in the case of Ved Pal Vs. Shakuntala @ Aruna Andhra Pradesh Law Times 35 wherein it has been categorically laid down that Section 120 of the Evidence Act permits the husband to speak on behalf of wife and that the husband can always speak about the factual circumstances in order to establish the case.
In K. Saroja Vs. Valliammal and others 1996 M.L.J. 199 it has been held that under Section 120 of the Evidence Act, the husband is a competent witness for the wife in civil proceedings.
This is exactly what has been done by the husband of the petitioner in the present case he has deposed about the facts within his personal knowledge. The statement made by the husband of the petitioner as PW1 is in respect of the facts which are within his knowledge pertaining to the issuance of notice through the advocate concerned.
Thus, in view of the aforesaid facts and circumstances and the legal position as enunciated above, the evidence of the husband of the petitioner so as to prove the notice and its service upon the respondent No.1 is admissible under Section 120 of the Evidence Act and the courts below manifestly erred in law in brushing it aside on the basis of the decision of the Supreme Court in Janki Vasdev Bhojwani (Supra) case and in dismissing the suit.
A distinction has to be made between deposition made by the power of attorney holder and that by the husband or the wife of the plaintiff. The evidence of the power of attorney holder may be limited and not to the standard of that of not in certain circumstances be competent to the husband or the wife of the plaintiff who can always depose on his/her behalf to prove the case though the said evidence may not be stretched to the facts beyond the personal knowledge of the deponent.
The last submission of Sri B.N. Agarwal, learned counsel for the respondent No.1. is that the respondent has denied the service of the notice and the husband of the petitioner cannot make any statement regarding it. The presumption under Section 27 of the General Clause Act is attracted where a notice is sent to the addressee at his correct address by registered post and the notice is deemed to be served in the normal course of business until and unless contrary is proved. The presumption therein is rebuttable in nature and it is open to the party rebutting the presumption to prove that the notice was not actually served by examining the postman, if necessary or by adducing other evidence.
The issuance of notice and its service as stated earlier was within the personal knowledge of the husband of the petitioner and he has discharged the burden of proving the same by his statement which has been held to be admissible in evidence in view of Section 120 of the Evidence Act. The respondents have done nothing or very little to rebut the presumption and to prove contrary to it. No evidence was adduced to deny the service of notice except for the bald statement that the respondent No.1 has not denied receiving it or that the service by refusal has been manipulated. The submission thereof is bereft of any merit.
Accordingly, the impugned orders dated 29.09.08 and 22.08.05 are quashed and the matter is remanded to the court of first instance for retrial in accordance with law and it is expected that the court will do well to decide the suit afresh as expeditiously as possible preferably within a period of six months from the date of production of the certified copy of this order.
Order Date :- 9.9.2014
No comments:
Post a Comment