IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Civil Revision No.3103 of 1990 Date of decision:03.03.2009 Parveen Sharma (deceased) through his L.Rs. ...Petitioner versus Hari Singh Estate Education and Charitable ...Respondent Trust, Milap Chowk, Jalandhar. CORAM: HON'BLE MR. JUSTICE K.KANNAN Present: Mr. Animesh Sharma, Advocate for the petitioner. Mr.Saurabh Chugh, Advocate for Mr.Anupam Gupta, Advocate for the respondent. ---- 1. Whether reporters of local papers may be allowed to see the judgment ? 2. To be referred to the reporters or not ? 3. Whether the judgment should be reported in the digest ? K.Kannan, J.(Oral) 1. The petitioner is ready and the counsel for the respondent seeks for time on the ground that he has misplaced the record. However, I have heard the counsel for the petitioner after declining the prayer for adjournment by the respondent. 2. The petition for eviction was filed on the grounds of non-payment of rent and two other grounds which are not relevant, since the other grounds were found against the landlord on the issue of non- payment of rent for the period from 01.11.1974 to 31.07.1985, the Rent Controller found against the landlord and dismissed the petition. The decision was reversed in appeal by the Appellate Authority finding that the tenant had not paid the rent as directed at the first hearing. The so called payment making up the entire arrears as determined by the Court fell in the shape of a payment through a demand draft by the Civil Revision No.3103 of 1990 - 2 - tenant to the landlord. According to the Appellate Court, no permission had been taken by the tenant to tender secondary evidence through a photocopy of a demand draft and therefore, the document was liable for rejection. The Appellate Authority therefore found fault with the reasoning of the Rent Controller and upheld the contention of the landlord that there had been non-payment of rent with reference to amount of about Rs.2250/- covered under the so called demand draft and ordered eviction. 3. Learned counsel appearing for the petitioner submits on a point of law that the rent note on the basis of which the landlord claimed Rs.100/- as the rent payable was not admissible being an unregistered document. On the issue regarding the non-payment of rent and which according to the counsel is mixed question of law and fact which depended on the consideration of the admissibility of the photocopy of the demand draft, the Appellate Authority had erroneously found that the tenant had not paid the entire rent as determined by the landlord. 4. As regards the first contention that the rent note was not admissible as evidence, I find no merit in the contention since the document purported to be for a period of less than 12 months. The interdict against the admissibility contemplated under Section 107 of the Transfer of Property Act and Section 17 read with section 49 of the Registration Act operates only in respect of lease for a period in excess of one year. The nomenclature in the document itself according the learned counsel is erroneous for the document spells out mutual rights Civil Revision No.3103 of 1990 - 3 - and obligation signed by both the parties and attested by witness and hence it was considered only as a lease Deed. The nomenclature in the document notwithstanding, the main question is the fact that the period mentioned in the document is what governs the registrability or otherwise of the instrument. The retention of possession by a tenant beyond a period of one year does not itself make the document due for registration. The consideration of this issue need not deter us for long since the issue that falls for consideration is what was the rent payable by the tenant and whether there was any default in the payment. 5. The Rent Controller as well as the Appellate Authority have considered the fact that all the rent receipts which had been produced showed a rent of Rs.75/- as having been paid per month. It appears that there were proceedings by the Income Tax Department against the landlord and the rent payments by the tenant had also be attached. During all the relevant period, when the landlord claimed that there had been non-payment of rent by the tenant, the amounts had been remitting @ Rs.75/- per month. The Rent Controller as well as the Appellate Authority determined the issue of non-payment of rent only by taking into account that the amount of rent was only Rs.75/- per month. While the Rent Controller found that there had been no default in the payment of the tenant, the Appellate Authority found a cause for reversal on the ground that all the payments alleged to have been made by the tenant had not been established. Civil Revision No.3103 of 1990 - 4 - 6. The procedure that the Rent Controller shall follow in the case where there is a dispute with reference to the rent is to determine the amount that is payable provisionally and if the amount is not paid at the first hearing, then the tenant would be liable for ejectment. The trial Court recorded that the landlord was entitled to an amount of Rs.75/- per month and finding there had been a claim by the landlord for 129 months, directed the tenant to pay Rs.2250/-. On a reckoning of the arrears calculated for 129 months, the amount that fell to be paid was Rs.5635/- and according to the tenant the entire amount had been paid. Payments made to the Income Tax Department as well as to the Municipal Committee, besides a payment through a draft alleged to have been made on 06.05.1982 were duly given credit. While the Rent Controller accepted the contention of the tenant, the Appellate Authority held that the alleged payment through a draft on 06.05.1982 as not having been established. According to the Appellate Authority, the document Ex.RW1/13 was a photocopy of the draft and being a secondary evidence, it could not have been admitted as proof of payment. 7. The central issue for decision would therefore be whether the Appellate Authority was justified in rejecting the evidentiary value of Ex.RW1/13. Admittedly, the document had been tendered in evidence through Ex.RW1 and exhibited as such evidence without any objection at the trial. The reception of secondary evidence would be possible under the various circumstances enumerated under Section 65 of the Indian Evidence Act. Among other instances, the circumstance that Civil Revision No.3103 of 1990 - 5 - original is shown or appears in the possession of the person against whom a document sought to be proved would be a justification for production of secondary evidence. A draft which is drawn in the name of Hari Singh Estate who is the landlord ought to expected to be in the custody on payment only with the landlord. A photocopy of a draft which is a reproduction by a mechanical process which would ensure the accuracy of the copy satisfies the test of secondary evidence set out under Section 65(1) of the Act. The reasoning of the Appellate Authority for rejection of the document, inter alia, was that there was no particular reference to the so called payment to the draft in the written statement. The contention by the tenant had been that the entire amount during the relevant period payable as rent had been paid to the landlord, and the manner of payment and when such payments were made would be essentially a matter of evidence. 8. In my view, the rejection of the Appellate Authority of the photocopy of the draft exhibited RW1/13 was wholly unjustified. There is no particular requirement under that provision of the Evidence Act that any separate application should be filed seeking for permission for production of secondary evidence, though it may be a matter of practice in some Courts that such permission is obtained. The justification for production of secondary evidence is what obtains in the chief examination itself. The inadmissibility for want of any of reasons for production of the primary evidence shall be a matter for cross- examination of the witness who tenders secondary evidence. I hold that the explanation given by a party in evidence for production of secondary Civil Revision No.3103 of 1990 - 6 - evidence in the chief examination is itself sufficient to lay the foundation for production of secondary evidence. The non-filing of petition seeking for such permission is not a necessary legal requirement. Even without such permission, if justification could be seen as existing by reference to Section 65 of the Evidence Act, such document ought to be permitted. There is another reason also as to why secondary evidence ought to be accepted. It is a matter of record that the document itself was not objected at the time when it was tendered in evidence through Ex.RW1. The Supreme Court has also laid down in R.V.E. Venkatachala Gounder Versus Arulmigu Viswesaraswami and V.P. Temple and others, A.I.R. 2003 S.C. 4548, that a photocopy of a rent note which was admitted into evidence without objection at the trial could not be objected at a later point of time. After all, the landlord is a trust and being a public body ought to have maintained accounts. Nothing would have been easier than production of their own accounts to discredit testimony placed the evidence of RW1 and the evidentiary value of RW1/13, that such payment had never been made and not found in the accounts maintained in its usual course of business. The finding of fact rendered by the Appellate Authority has arisen from improper rejection of a document which is a mixed question of fact and law and the finding of short payment to the tune of Rs.2250/- is therefore not tenable and accordingly set aside. 9. It is admitted by the counsel appearing for revision petitioner that the rent was subsequently being paid @ Rs.100/- as contended by the landlord and there has been no objection regarding the Civil Revision No.3103 of 1990 -7 - same. In the light of what is stated above, the eviction sought for by the landlord on the ground of non-payment of rent does not accord with law or evidence and the eviction order made by the Appellate Authority is set aside. 10. The revision is allowed in the above terms. There shall no directions as to costs. (K.KANNAN) JUDGE 03.03.2009 sanjeev