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Madhya Pradesh High Court · body

2005 DIGILAW 307 (MP)

Bashir v. Hussain Bana

2005-02-28

S.K.GANGELE

body2005
ORDER 1. This is the non-applicant-petitioner revision filed u/s 23E of M.P. Accommodation Control Act (hereinafter called as 'the Act') against the order of eviction dated 10.7.2003 passed by the Rent Control Authority (hereinafter called 'as Authority') on an application filed by the applicant-respondent-landlady. 2. The landlady submitted before the Authority that suit house No. 8/2, Kadwghat, Indore was rented out to the petitioner on a monthly rent of Rs. 325/-, consisting of five rooms, two on first floor, 3 on ground floor, needed for herself and her family members, son Mohammad Iqubal and grandsons Chand Mohammad, Zia-ul-Hasan, granddaughter Shagufta Bano. She was residing in a small room at Kadwghat and her family members in a rented premises. Her two grandsons and granddaughter were schoolgoing children. She was old lady aged about 75 years, wanted to live with her family members in her own suit house. Her husband had died. Earlier she filed civil suit for eviction against the non-applicant which was dismissed in default on 13.2.2000. 3. The petitioner denied the pleadings of landlady and submitted that her need was not bona fide, she had sufficient accommodation, earlier also she filed an eviction suit which was dismissed in default, it shows that she had no genuine need and prayed for dismissal of the eviction application. 4. On the pleading of both the parties, the Authority framed issues with regard to bona fide need of applicant and her family members and availability of alternate accommodation and weather provisions of Order 9 Rule 9 of the Civil Procedure Code are attracted in the proceedings. After analysing the evidence, pleadings documents on record of the case, the Authority- has held that bona fide need of the applicant and her family members is genuine, she had no other alternate accommodation at Indore City for aforesaid purpose and provisions of Order 9 Rule 9 CPC are not attracted and passed an order of eviction in favour of landlady. 5. The learned senior counsel Shri Chaphekar for the petitioner has submitted that findings of the Authority with regard to bona fide need are perverse and contrary to the evidence of the case. The Authority relied on the evidence of power-of-attorney holder of the applicant who tendered his evidence on behalf of the applicant. 5. The learned senior counsel Shri Chaphekar for the petitioner has submitted that findings of the Authority with regard to bona fide need are perverse and contrary to the evidence of the case. The Authority relied on the evidence of power-of-attorney holder of the applicant who tendered his evidence on behalf of the applicant. The evidence cannot be admitted because he had no right to depose on behalf of applicant as per provisions of Order 3 Rule 1 & 2 of the Civil Procedure Code. In support of his contentions he relied on a decision of the Supreme Court reported in AIR 2005 SC 439 - Janki Vashdeo Bhagwani and another v. Indus Ind. Bank Ltd. and others. The Hon'ble Supreme Court has held as under : "Order 3 Rule 1 and 2 empowers the holder of power of attorney to 'act' on behalf of the principal. The word 'acts' employed in Order 3 Rule 1 and 2, confines only in respect of 'acts' done by the power of attorney holder in exercise of power granted by the instrument. The term 'acts' would not include deposing in place and instead of the principal. If the power of attorney holder has rendered some 'acts' in pursuance to power of attorney he may depose for the principal in respect of such acts, but he cannot depose for the principal for the acts done by the principal and not by him. Similarly, he cannot depose for the principal in respect of the matter which only the principal can have a personal knowledge and in respect of which the principal is entitled to be cross-examined. [Para 12]" 6. He further contended that land lady filed a eviction suit in 1985 against the petitioner which was dismissed on 13.12.2000 in non-appearance and again she filed the present application in August 2001 which shows that she had no bona fide need and the order of the authority is not a speaking one he only reproduced the evidence and did not decide any thing and relied on AIR 1981 SC 1711 . 7. 7. The learned counsel for the respondent has submitted that order of the authority is as per law based on evidence with reasons and cannot be interfered in a revision, with regard to bona fide need a power of attorney holder who is a member of family son can depose on behalf of the landlady who was aged 80 years. The judgment of the Hon'ble Supreme Court is distinguishable because it was passed on the basis of deposition of power of attorney holder in a suit before the debt recovery tribunal about transactions made by the executor of power of attorney holder. He relied on 1997(1) Vidhi Bhasvar 280, 2004(1) Vidhi Bhasvar 115, 1994(1) MPJR 144 , 1995(II) MPWN 43 ; 1995(2) MPLJ 410, AIR 1993 SC 1574 , with regard to bona fide need he submitted that the landlady cannot be forced to live in one room without her family members at the feg end her life, it would amount to a cruelty, for this contention he relied on 1997(1) MPWN 105, 2000 MPRCJ 158 and further submitted that in a revision petitioner finding of fact recorded by the authority cannot be reversed. 8. From the perusal of the order of the Authority, which runs into 27 pages, it is clear that the Authority considered the evidence of both the parties in detail and held that applicant was the owner of the suit premises. It was needed by her and family members bona fide, she had no other alternative accommodation for this purpose in the city. The Authority also considered arguments and counter arguments of both the parties and judgments relied on by both the parties in their support. In such circumstances the order passed by the Authority cannot be said to be non-speaking one. 9. It is clear from the evidence of Iqbal Mohd., witness No.1, power of attorney holder, that applicant was old lady, she was admitted in the hospital frequently for her ailment and being a member of her family he described the need of the family in detail. He also submitted that he was living in a rented premises along with his family members, the landlord served a notice of eviction on him, he wanted to live with her mother. He also submitted that he was living in a rented premises along with his family members, the landlord served a notice of eviction on him, he wanted to live with her mother. The evidence of Iqbal supported by the evidence of his landlord Sarfaraz witness No.4, advocate who issued notice on behalf of Smfaraz No.3 and Bashir Mohd. Witness No.5 his fellow tenant. Another son of landlady Ataulkhat, witness No.2, also deposed that her brother wanted to live with her mother. The non-applicant petitioner in his cross-examination in para 20 also admitted that applicant had a need but he had a large family so he could not vacate the premises being a poor man. In such circumstances, in my opinion, the Authority did not commit any irregularity or illegality in holding that applicant proved her need. 10. It is noticeable that land lady is aged about 80 years she had ailments for which she was hospitalized frequently, her son was living in a rented premises and his landlord also served a notice on him of eviction in such circumstances it cannot be held that her need was not, genuine, it would amount to cruelty to her in such circumstances in my opinion the authority did not commit any illegality in passing the impugned order. 11. With regard to objection of the learned counsel of the petitioner about admissibility of evidence of his son Iqbal a Power of Attorney holder based upon this judgment of Hon'ble Supreme Court reported in AIR 2005 SC Page 439 quoted earlier the facts of the case are distinguishable. In the aforesaid case, the power of attorney holder deposed before the debt recovery tribunal with regard to independent income of the executor. In such circumstances the Hon'ble Supreme Court has held that power of attorney holder cannot depose about the act of appellant executor. 12. The question of tendering evidence by holder of power of attorney on behalf of plaintiff-applicant is no res integra. A Single Bench of this Court in Vimla Devi v. Dulichand reported in 1994(1) MPJR by Hon'ble Justice R.C. Lahoti [as his Lordship then was] page 144 held as under: "Owner/landlady, a house wife did not enter witness; box. Her husband, also a power of attorney holder appeared and deposed and few admissions by defendant and his witnesses were also there. Her husband, also a power of attorney holder appeared and deposed and few admissions by defendant and his witnesses were also there. Held non-examination of plaintiff was not fatal [para 6-7]." In Shiv Narayan Soni v. Smt. Parwati Bai reported in 1997(1) Vidhi Bhasvar page 280 has held as under: "An attempt was also made to assail the order stating that the bona fide need of the landlady was not proved as she herself has not entered the witness box. This argument has also no force. She being a lady had executed general power of attorney in favour of her son who entered the witness box to prove her case. There is no law that the bona fide need can be proved only by the evidence of the landlady. It can also be proved through other witnesses. She being a lady and she having executed a power of attorney in favour of her son it was not compulsory for her to enter the witness box. Her husband was a Government servant and was occupying a Government accommodation. He retired and thereafter died. The eviction case was instituted in 1984 and till this date the landlady has not been able to get the possession of the accommodation because of the untenable defences raised on behalf of the tenant. The revision is, therefore, dismissed with costs. Counsel's fee Rs. 500/- is certified." In Shanti Devi Agrawal v. V.H. Lula reported in 2004(1) Vidhi Bhasvar page 115, again learned single judge has held as under: "The plaintiff has assailed the order also on a ground that the Rent Controlling Authority has misconstrued and misapplied the provisions of Order 3 Rule 3 of the Code and of section 118 of the Evidence Act. The said provisions of Order 3 Rule 2 of the Code of re-production read as : ORDER III RECOGNISED AGENTS AND PLEADERS 1. ................ 2. Recognised agents--The recognized agents of parties by whom• such appearances, application and acts may be made or done are -(a) persons holding powers-of-attorney, authorising them to make and do such appearances, applications and acts on behalf of such parties; (b) ................" And the provisions of section 118 of the Evidence Act on reproduction read as : "118. ................ 2. Recognised agents--The recognized agents of parties by whom• such appearances, application and acts may be made or done are -(a) persons holding powers-of-attorney, authorising them to make and do such appearances, applications and acts on behalf of such parties; (b) ................" And the provisions of section 118 of the Evidence Act on reproduction read as : "118. Who may testify--All persons shall be competent to testify unless the Court considers that they are prevented from understanding the questions put to them, or from giving rational answers to those questions, by tender years, extreme old age, disease, whether of body or mind, or any other cause of the same kind. Explanation--A lunatic is not incompetent to testify, unless he is prevented by his lunacy from understanding the questions put to him and giving rational answers to them." If was urged that while closing the plaintiff's evidence, the Rent Controlling Authority seriously erred in also closing the evidence of other witnesses of the plaintiffs side namely: Mukesh and Balkishan, whose examinations-in-chief had already been placed on record by way of affidavits. That apart, it was also urged that though the matter was not fixed for the plaintiff's evidence on 9.12.2002, still it was closed without assigning any reason, much less a 'valid reason'. On the other hand, it was submitted by the defendant that no power of attorney could be given to lead evidence on someone's behalf; that Order 3 Rule 2 of the Code would not authorise the power of attorney holder to appear and give statement/evidence on behalf of a party and that the plaintiff did not submit her examination-in-chief in terms of Order 18 Rule 4 of the Code. The provisions of Order 18 Rule 4 of the Code on re-production read as : ORDER XVIII HEARING OF THE SUIT AND EXAMINA nON OF WITNESSES 1. .................... 2. .................... 3. .................... 3A. .................. 4. Recording of evidence -- (1) In every case, the examination-in-chief of a witness shall be on affidavit and copies thereof shall be supplied to the opposite party by the party who calls him' for evidence: Provided that where documents are filed and the parties rely upon the documents, the proof and admissibility of such documents which are filed alongwith affidavit shall be subject to the orders of the Court. (2) ................ (3) ................ (4) ................ (5) ................ (6) ................ (7) ............... (8) ............... (2) ................ (3) ................ (4) ................ (5) ................ (6) ................ (7) ............... (8) ............... A reliance was placed on a judgment of the Rajasthan High Court in the matter of Ram Prasad v. Hari Narain and others [ AIR 1998 Raj. 185 ]. The ration thereof with reference to Order 3 Rule 3 of the Code and section 118 of the Evidence Act says that a power of attorney holder is not entitled to appear as a witness for the party appointing him power of attorney holder. The word 'acts' in Rule 3 does not include act of power of attorney holder to appear as a witness on behalf of party. 7. The, other revision namely the Civil Revision No. 122/2003 has been filed by the defendant seeking to challenge the order of the Rent Controller dated 27.3.2003 on the ground that he has recalled the earlier order dated 9.12.2002 in violation of statutory provisions and by going beyond his jurisdiction. It was urged that instead of exercising powers under section 151 of the Code, the Rent Controlling Authority ought to have acted under the special provisions of section 23 of the Act; that the Rent Controlling Authority is not empowered to review his own order and that he cannot exercise inherent powers under the provisions of section 151 of the Code. In opposition to these submissions of the defendant in the suit (the applicant herein), the plaintiff in the suit (the non-applicant herein) has submitted that in the wake of a host of decisions of this Court, the Rent Controller has rightly recalled his earlier order in exercise of powers under section 151 of the Code. 8. On due consideration of rival submissions the Civil Revision No. 83/2003 deserves to be allowed. 8. On due consideration of rival submissions the Civil Revision No. 83/2003 deserves to be allowed. In a Gujarat High Court judgment by Hon'ble Shri S.B. Majumdar, J. (as his Lordship then was) in the matter of Parikh Amratlal Ramanlal Trustee and Administrator of Samskrit Pathshala Institution and others v. Rami Mafatlal Girdharilal and others [AIR 1983 NOC 108 (Gujarat)] it was held: "Whether the general power of attorney holder of a party can be a competent witness on behalf of a party before a judicial Tribunal or authority has to be answered in the light of section 118 of the Evidence Act and for answering that question the provisions of Order 3 Rule 1 and 2(a) of the Civil Procedure Code are beside the point and can afford no guidance whatsoever. Giving deposition on oath as a power of attorney holder of party is not a part of pleadings. It is a part of the procedure for proving a case by examining a competent witness. Who can be a competent witness is indicated by the Evidence Act alone as per section 118. The power of attorney holder of a party, only on the ground that he hold the power of attorney, cannot be said to be in the category of persons who are incapable of being witnesses as provided by section 118 of the Evidence Act. Whether such a power of attorney holder has personal knowledge about the matters in controversy may be a question which can be thrashed out by cross-examining him and if it is found that the power of attorney holder has no personal knowledge about the facts and controversy, the evidentiary value of his deposition may be whittled down, but that has nothing to do with the competence of such a power of attorney holder to depose before a Court or a judicial Tribunal as a competent witness." The Court relied on a judgment of the Madras High Court reported in 1996 AIR Madras 14. Thus, as per the judgment a general power of attorney holder of a party was not barred by Order 3 Rule 2(a) of the Code 1908, to give evidence on behalf of that party. Thus, as per the judgment a general power of attorney holder of a party was not barred by Order 3 Rule 2(a) of the Code 1908, to give evidence on behalf of that party. Similarly in a judgment of this Court in the matter of Shiv Narayan Soni v. Smt. Parvati Bai Meshram [1997(1) Vidhi Bhasvar 280], Hon'ble Shri D.M. Dharmadhikari, J. (as his lordship then was) has held that in a case for eviction under section 23-A(a) of the Act, the landlady herself was not required to prove bona fide need and this could be deposed by her holder of power of attorney. 9. The Principle enunciated in the aforesaid judgments has also been espoused by a number of other judgments of this Court reported as : (1) Kaluram v. Gendalal [1995(11) MPWN 43 at page 59]. It appears that the Court did not agree with a judgment of the Privy Council with contrary view reported as Lal Durga Baksh Singh v. Rani Brij Raj Kaur [AIR 1938 Privy Council 40]; (2) Kishore Kumar Shanna (Dr.) v. Smt. Ram Dulari [1997(11 MPJR-SN 33]. This case is based on a judgment of Hon'ble the apex Court reported as Purushottam Umedbhai and Co. v. M/s. Manilal and sons [ AIR 1961 SC 325 ] and also on the judgments of the High Courts, namely (i) Swaran Lata v. Dev Kumar [(1991) 12 Punjab Legal Reports and statutes 682], (ii) Anil lain v. Amar Nath [1990(7) Punjab Legal Reports and Statutes 178] and (ii) Tulsiram v. Bank of Maharashtra [ 1985 MPWN 254 ] (3) Dharam Veer Shanna v. Bhagwati Prasad [ 1998(1) MPJR 392 ]. In this case also the judgment of Hon'ble the apex Court in Purushottam Umedbhai and Co's case (supra) has been relied upon and (4) Virendra Kasliang Sharim v. Smt. Ramkatori Devi [ 1998(2) MPLJ 410 ]." 13. In this case also the judgment of Hon'ble the apex Court in Purushottam Umedbhai and Co's case (supra) has been relied upon and (4) Virendra Kasliang Sharim v. Smt. Ramkatori Devi [ 1998(2) MPLJ 410 ]." 13. The second point raised by the learned senior counsel of withdrawal of earlier Civil Suit before the Civil Court and filing fresh application before the RCA is also not undecided : "In N.R. Narayan Swamy v. B. Francis Jagan reported in [ (2001) 6 SCC 473 ] -- the apex Court has held as under -- The High Court ought to have considered the fact that in eviction proceedings under the Rent Act the ground of bona fide requirement or non-payment of rent is a recurring cause and, therefore, the landlord is not precluded from instituting fresh proceeding. In an eviction suit on the ground of bona fide requirement the genuineness of the said ground is to be decided on the basis of requirement on the date of the suit. Further, even if a suit for eviction on the ground of bona fide requirement is filed and is dismissed, it cannot be held that once a question of necessity is decided against the landlord he will not have a bona fide and genuine necessity ever in future. In the subsequent proceedings, if bona fide and genuine necessity ever in future. In the subsequent proceedings, if such claim is established by cogent evidence adduced by the landlord, decree for possession could be passed. [Para 6] Rule 1, Sub-rule (4) of Order 23 of the Civil Procedure Code would have no application in a proceeding initiated for recovering the suit premises on the ground of bona fide requirement which is a recurring cause. Order 23 Rule 1(4) (b) precludes the plaintiff from instituting any fresh suit in respect of such subject-matter or such part of the claim which the plaintiff has withdrawn. In a suit for eviction of a tenant under the Rent Act on the ground of bona fide requirement even though the premises remain the same, the subject-matter which is the cause of action may be different. The ground for eviction in the subsequent proceedings is based upon requirement on the date of the said suit even though it relates to the same property. [Para 10] In Surajmal v. Radheshyam reported in AIR 1988 SC 1345 reported. The ground for eviction in the subsequent proceedings is based upon requirement on the date of the said suit even though it relates to the same property. [Para 10] In Surajmal v. Radheshyam reported in AIR 1988 SC 1345 reported. Where a suit for eviction from premises comprising of shop on ground of bona fide need was dismissed, the second suit on the same ground would be competent. The bona fide need must be considered with reference to the time when a suit for eviction is filed and it cannot be assumed that once the question of necessity is decided against the landlord it has to be assumed that he will not have bona fide and genuine necessity ever in future. [Para 8] In Ramchandra Singh v. Satya Prakash Gupta reported in 1990 MPRCJ NOC 10 -- The objection is based on a fallacy as to the language of section 12 of the Amendment Act, it is interesting to compare the phraseology of the provisions contained in Order 23, Rule 1 of the Civil Procedure Code with those contained in section 12 of the Amendment Act. Order 23, Rule 1 Sub-rule (3) contemplates the plaintiff being granted a permission by the Court in the two contingencies mentioned therein a permission "to withdraw from such suitor such part of the claim with liberty to institute a fresh suit in respect of the subject-matter of such suit or such part of the claim." Sub-rule (4) provides for a specific prohibition. Permission of the Court having not been secured in the matter of reserving liberty to institute a fresh suit, any fresh suit in respect of the same subject-matter or part of the claim is barred. Section 12 of the Amendment Act does speak of withdrawing the suit in relation to relief for eviction of tenant on the ground of bona fide requirement but does no provide for any permission of the Court in reserving liberty to institute similar proceedings before the Rent Controlling Authority. A disability from initiating proceedings fresh in the absence of liberty having been given by the Court as is provided by Sub-rule (4) of Rule 1 of Order 23 is also not to be found in the language of section 12. The reason for distinction is apparent. A disability from initiating proceedings fresh in the absence of liberty having been given by the Court as is provided by Sub-rule (4) of Rule 1 of Order 23 is also not to be found in the language of section 12. The reason for distinction is apparent. The objection underlying sub-rules (3) and (4) of Rule 1 of Order 23 is that no body should be vexed twice with similar proceedings and multiplicity of proceedings should be avoided unless permitted by the Court for the reasons to be recorded. The object underlying section 12 of the Amendment Act is entirely different. This amendment was brought with the object of providing a special jurisdiction and a summary procedure for disposal of cases seeking eviction on the ground of bona fide requirement. The Legislature was benevolent to such landlords and proposed to give them a choice of withdrawing from the long drawn procedure of pursuing eviction proceedings before a civil Court, a forum already chosen by them, and availing benefit of speedier remedy under the Amendment Act. The only mischief sought to be avoided was that the proceedings should not be parallel before two forums. If a landlord chose to withdraw earlier initiated proceedings u/s 12(1) (e) or (f) of the Act before the civil Court, in the wake of section 12 of the Amendment Act, it was understood that he was doing so with the idea of approaching the Rent Controlling Authority. The legislature deliberatly abstained from providing for the necessity of securing leave to reserve liberty to re-initiate the proceedings. Therefore, if the landlord simply withdrew his suit for eviction pending before the civil Court on the date of coming into force of the Amendment Act without reserving liberty to institute proceedings afresh before the Rent Controlling Authority, the proceedings under Chapter III-A of the Act would not be barred. Now, coming to the insufficiency' of the accommodation, the whole plaint is to be read as a whole. The plaintiff had stated that there are four adult members in her family. Now, coming to the insufficiency' of the accommodation, the whole plaint is to be read as a whole. The plaintiff had stated that there are four adult members in her family. The total accommodation of the whole house which is amply clear from the map attached to the plaint and as described above, considered or taken into account keeping in view the accommodation in the possession of the plaintiff, there could be only one room, passage and the tin-shed and therefore in the circumstances, the need as shown by the plaintiff was' reasonable and bona fide. The tenant has no right to compel the landlord/landlady to squeeze the family of four members and live uncomfortably in two rooms as was found by this Court in the Case of Pratap Chand Jain v. Ashok Kumar [1992(1) MPWN 198]." 14. On the basis of above principle of law, facts and circumstances of the case, objection raised by learned senior counsel about the proprietary and legality of order passed by the authority are not maintainable consequently. I do not find any merit in the revision it is dismissed without any order of cost. ....................