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Allahabad High Court · body

2009 DIGILAW 3510 (ALL)

Vijay Prakash v. Munshi lal

2009-11-16

SHISHIR KUMAR

body2009
JUDGMENT Hon. Shishir Kumar, J. Heard the learned counsel for the petitioners . 2. This writ petition has been filed for quashing the orders dated 24.3.2007 and 6.12.2007, Annexures-1 and 2 to the writ petition. Admittedly, the petitioners are tenant of the disputed property. The respondent no.1 filed a suit before the Judge Small Causes Court against the petitioners for eviction and arrears of rent on the ground of default as well as material alterations diminishing the value of the property. The Judge Small Causes Court after considering the evidence on record and after considering the Commissioner's report for which no objection was ever filed by the petitioners', impliedly the petitioners have admitted that they have made the constructions, has recorded a finding that in view of the Commissioner's report, the petitioners have constructed three Pucca walls and upon the kitchen, they have made Puccha roof, taking in to consideration the facts and circumstance relying upon a judgement of the Apex Court reported in A.I,.R. 2005, S.C. Page 240, British Motor Car Co. Vs. M.C. Saggi has held that if such type of construction has been made, that will come under the definition of material alteration and has decreed the suit vide its judgement and order dated 24.3.2006. The revision filed by the petitioners has been dismissed confirming the finding recorded by the Judge Small Causes Court. 3. Sri Siddharth Srivastava learned counsel appearing for the petitioners has not filed any rejoinder affidavit and has submitted before the Court that he will not file any rejoinder affidavit rebutting the allegations made in the counter affidavit and will argue the matter on merit. 4. The first argument raised on behalf of the petitioners' is that the burden was upon the landlord to prove that any violation of Section 20 (2) (b) (c) and (d) of Act XIII of 1972 has been done. Admittedly, the respondent-landlord has not appeared before the Court for making a statement regarding any construction or material alteration made by the petitioners. Section 20 (2) of the Act is being reproduced below: "20. Admittedly, the respondent-landlord has not appeared before the Court for making a statement regarding any construction or material alteration made by the petitioners. Section 20 (2) of the Act is being reproduced below: "20. (2) A suit for the eviction of a tenant from a building after the determination of his tenancy may be instituted on one or more of the following grounds, namely: (a) that the tenant is in arrears of rent for not less than four months, and has failed to pay the same to the landlord within one month from the date of service upon him of a notice of demand: Provided that in relation to a tenant who is a member of the armed forces of the Union and in whose favour the prescribed authority under the Indian Soldiers (Litigation) Act, 1925 (Act IV of 1925) has issued a certificate that he is serving under special conditions within the meaning of Section 3 of that Actor where he has died by enemy action while so serving, then in relation to his heirs, the words "four months" in this clause shall be deemed to have been substituted by the words "one year". (b) that the tenant has wilfully cause or permitted to be caused substantial damage to the building; (C) that the tenant has without the permission in writing of the landlord made or permitted to be made any such construction or structural alterations in the building s is likely to diminish its value or utility or so disfigure it; (d) that the tenant [has without the consent in writing of the landlord used it for a purpose other than the purpose for which he was admitted to the tenancy of the building or otherwise done any act which is inconsistent with use], or has been convicted under any law for the time being in force of an offence of using the building of allowing it to be used for illegal or immoral purposes; (e) that the tenant has sub-let , in contravention of the provisions of Section 25, or as the case may be, of the old Act the whole or any part of the building; (f) that the tenant has renounced his character as such or denied the title of the landlord, and that latter has not waived his right of re-entry or condoned the conduct of the tenant; (g) that the tenant was allowed to occupy the building as part of his contract of employment under the landlord, and his employment has ceased." 5. He has placed reliance upon a judgment reported in (2003) 1 SCC 59 Waryam Singh Vs. Baldev Singh and has placed reliance upon para 9 of the said judgment which is quoted below: "9.Mr. Walia then relied upon the case of Gurbachan Singh v. Shivalak Rubber Industries. In that case a number of shops had been let out to the tenants. Along with the shops there were some open spaces also. The tenants removed the roofs of the shops, the partition walls and the doors. They then laid a new roof merging the verandah with the shops, closing the doors and opening new doors and windows. They also enclosed the open spaces, Result of all the alterations was that the premise were converted altogether into a new and different shape. On these facts it was held that the tenant had committed acts which impaired materially the value or utility of the premises. They also enclosed the open spaces, Result of all the alterations was that the premise were converted altogether into a new and different shape. On these facts it was held that the tenant had committed acts which impaired materially the value or utility of the premises. It was held that impairment of value or utility must be judged from the point of view of the landlord and no one else. It was held that the question whether the additions amount to material impairment in value or utility depends upon the facts which have to be proved. In other words merely because some additions/alternations have been made would not itself amount to impairment in the value or utility of the premises,much less material impairment. 6. Further he has placed reliance upon a judgment of the Apex Court reported in 205 (2) SCC Page 217, Janki Vashdeo Bhojwani and another Vs. Indusind Bank Ltd. and others and placed reliance upon paras 12 and 13 of the said judgment which are quoted bellow: "12.In the context of the directions given by this Court, shifting the burden of proving on to the appellants that they have a share in the property,it was obligatory on the appellants to have entered the box and discharged the burden of themselves. The question whether the appellants have any independent source of income and have contributed towards the purchase of the property fro their own independent income can be only answered by the appellants themselves and not by a mere holder of power of attorney from them. The power-of-attorney holder does not have personal knowledge of the matter of the appellants and therefore he can neither depose on his personal knowledge nor can he be cross-examined on those facts which are to be personal knowledge of the principal. 13. Order 3 Rules 1 and2 CPC empower the holder of power of attorney to "act" on behalf of the principal. In our view the word "acts" employed in Order 3 Rules 1 and 2 CPC confines only to 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. In our view the word "acts" employed in Order 3 Rules 1 and 2 CPC confines only to 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. In other words, if the power-of-attorney holder has rendered some "acts" in pursuance of 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 of which only the principal can have a personal knowledge and in respect of which the principal is entitled to be cross-examined." 7. Placing reliance upon the aforesaid judgements, learned counsel for the petitioners submits that as the landlord himself has not come forward before the Court to make a statement and the son of the respondent-landlord has appeared, therefore, it cannot be said that there was any material alteration diminishing the value of the property. The landlord was the best person to say before the court regarding valuation of the property, whether construction raised by the petitioners diminishes the value of the property or increases the value of the property, the son of the respondent-landlord cannot say before the Court regarding the aforesaid fact. Further submission has been made that a burden was upon the landlord to prove regarding the construction raised, which diminishes the value of the property. 8. The case was taken up in the revised list but the respondent is not present. 9. After hearing the learned counsel for the petitioners and after perusal of the record I am of view that the finding recorded by the courts below is a finding of fact on the basis of relevant record. Further it is admitted to the petitioners that they have constructed a room and kitchen but the denial to this effect is that the roof is of tin- shed and it is not Pucca. But the Commissioner's report submitted, clearly states that the roof has been constructed upon the kitchen and it is in the nature of permanent construction. Further it is admitted to the petitioners that they have constructed a room and kitchen but the denial to this effect is that the roof is of tin- shed and it is not Pucca. But the Commissioner's report submitted, clearly states that the roof has been constructed upon the kitchen and it is in the nature of permanent construction. Admittedly, the petitioners have not submitted any objection to the Commissioner's report meaning thereby the petitioners have impliedly admitted the Commissioner's report that Pucca construction on the kitchen has been done. The question for consideration by this Court is whether in such circumstances, it is open to the petitioners to argue as to whether any Pucca construction has been made by the petitioners or not. 10. In my opinion, now the petitioners are estopped from raising such plea before this Court once the Commissioner's report has been accepted and no objection has been filed by the petitioners and the revisional court has also accepted the same. As regards the decisions cited by the learned counsel for the petitioners in the case of Janki Vashdeo Bhojwani (Supra), it appears that the question was regarding proving the share of the property in dispute. In such circumstances, the Apex Court has observed that a person in whose favour the power of attorney has been executed is not a correct person to state before the Court regarding having the share in a particular property for which there is dispute. Further finding has been recorded that Order III Rule 1 and 2 C.P.C. empowers the power of attorney to act on behalf of the Principal but his act is confined only to a particular act not regarding the share of the property for which there was a dispute. As regards the case of Waryam Singh (Supra), in that case the premises in dispute was an open shed, has been converted into the building by opening new doors and windows, so the Apex Court has held that on these facts, the tenant has committed an act which impaired material value or utility of the premises. In that circumstances, it was held that the construction raised is to be judged in the light of the view of the landlord. But it has not been held, as submitted by the petitioners, that the burden is upon the landlord to prove regarding any material alteration done by the tenant. In that circumstances, it was held that the construction raised is to be judged in the light of the view of the landlord. But it has not been held, as submitted by the petitioners, that the burden is upon the landlord to prove regarding any material alteration done by the tenant. The Judge Small Causes Court in taking into consideration the situation and facts has recorded a finding that from the perusal of the Commissioner's report as well as from the map, it is clear that the open area has been reduced by making certain constructions by the petitioners. Therefore, in view of the various judgement, it diminishes the value of the property and it amounts to material alterations defined under Section 20 (2) of the Act. 11. In my opinion, this is not a fit case to be interfered by this Court while exercising its powers under Article 226 of the Constitution of India. 12. The writ petition is devoid of merit and is hereby dismissed. 13. No order is passed as to costs. 14. At last the learned counsel appearing for the petitioners submits that some reasonable time may be granted to the petitioners-tenant to vacate the said premises. Accordingly, two months' time is granted to the petitioners to vacate premises in dispute subject to condition that the petitioners will submit an affidavit in the shape of undertaking within two weeks from today before the Judge Small Causes Court specifically indicating therein that they will handover peaceful possession of said accommodation without inducting any third person within a period of two months and will pay the arrears of rent as well as current rent, then and in that condition, the Judge Small Cause Court will grant two months' time to the petitioners to vacate the said premises.