Full Judgment Text
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CASE NO.:
Appeal (civil) 5300 of 2001
PETITIONER:
RAJINDER PERSHAD (DEAD) BY LRS.
RESPONDENT:
SMT. DARSHANA DEVI
DATE OF JUDGMENT: 10/08/2001
BENCH:
SYED SHAH MOHAMMED QUADRI & S.N. PHUKAN
JUDGMENT:
JUDGMENT
2001 Supp(1) SCR 442
The following Order of the Court was delivered :
Leave is granted.
This is tenant’s appeal, by Special Leave, against the judgment and order
dated 2.8.1999 of the High Court of Judicature at New Delhi dismissing
Second Appeal No. 41 of 1998 filed by the appellants-tenants and confirming
the order of eviction from the suit premises passed against him in
landlady’s eviction case.
In this order the parties will be referred to as the tenant and the
landlady. The case of the landlady is that the tenant did not pay the rent
of the suit premises from I 7.85 in spite of service of notice of demand
Exhibit AW 1/6 dated 5.8.86 and committed three consecutive defaults in
payment of rent. The tenant contested the case. He denied service of demand
notice. The Rent Controller. Delhi, on the basis of the evidence on record
found that the tenant refused to receive notice and there was default in
payment of rent and, therefore, ordered eviction of the tenant from the
suit premises on 1.7.1996. The tenant’s appeal presented to the Rent
Control Tribunal, was dismissed. He then carried the case in Second Appeal
before the High Court which was also dismissed by the judgment and order
under challenge in this appeal.
The only point urged albeit strenuously on behalf of the appellant, by Mr.
P S. Mishra, the learned senior counsel, is that as there has been no valid
service of notice so all proceedings taken on the assumption of service of
notice are illegal and void. He has invited our attention to the judgment
of the learned Rent Control Tribunal wherein it is recorded that Exhibit
AW1/6 dated 5.8.86 was sent by registered post: and the same taken by the
postman to the address of the tenant on 6.8.86, 8.8.86, 19.8.86 and 20.8.86
but on those days the tenant was not available; on 21.8.86 he met the
tenant who refused to receive the notice. This finding remained undisturbed
by both the Tribunal as well as the High Court. Learned counsel attacks
this finding on the ground that the postman was on leave on those days and
submits that the records called for from the post office to prove that
fact, were reported as not available. On those facts submits the learned
counsel, it follows that there was no refusal by the tenant and no service
of notice. We are afraid we cannot accept these contentions of the learned
counsel. In the Court of the Rent Controller, the postman was examined as
A.W.2. We have gone through his cross-examination. It was not suggested to
him that he was not on duty during the period in question and the
endorsement "refused" on the envelope was incorrect. In the absence of
cross-examination of the postman on this crucial aspect his statement in
the chief-examination has been rightly relied upon. There is an age old
rule that if you dispute the correctness of the statement of a witness you
must give him opportunity to explain his statement by drawing his attention
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to that part of it which is objected to as untrue, otherwise you can not
impeach his credit. In State of U.P. v. Nahar Sing (dead) and Ors., [1998]
3 SCC 561, a Bench of this Court (to which 1 was a party) stated the
principle that Section 138 of the Evidence Act confers a valuable right to
cross-examination a witness tendered in evidence by opposite party. The
scope of that provision is enlarged by Section 146 of the Evidence Act by
permitting a witness to be questioned, inter alia, to test his veracity. It
was observed.
"The oft-quoted observation of Lord Herschell, L.C. in Browne v. Dunn
clearly elucidates the principle underlying those provisions. It reads
thus:
"I cannot help saying, that it seems to me to be absolutely essential to
the proper conduct of a cause, where it is intended to suggest that a
witness is not speaking the truth on a particular point, to direct his
attention to the fact by some questions put in cross-examination showing
that that imputation is intended to be made and not to take his evidence
and pass it by as a matter altogether unchallenged, and then, when it is
impossible for him to explain, as perhaps he might have been able to do if
such questions had been put to him, the circumstances which, it is
suggested, indicate that the story he tells ought not to be believed, to
argue that he is a witness unworthy of credit. My Lords, I have always
understood that if you intend to impeach a witness, you are bound, whilst
he is in the box, to give an opportunity of making any explanation which is
open to him; and, as it seems to me, that is not only a rule of
professional practice in the conduct of a case, but it is essential to fair
play and fair dealing with witnesses."
For the afore-mentioned reason no exception can be taken to the impugned
judgment and order of the High Court. The appeal fails and it is
accordingly dismissed. No costs.