Research › Search › Judgment

Allahabad High Court · body

2010 DIGILAW 870 (ALL)

Ayodhya Prasad Gupta v. Pratap Chandra Mehra

2010-03-16

DEVENDRA PRATAP SINGH

body2010
JUDGMENT Hon'ble Devendra Pratap Singh,J. Heard counsel for the parties. 2. This petition by the tenant is directed against concurrent orders dated 8.3.2006 and 8.9.2006 by which the suit for eviction and arrears of rent instituted by the respondent-landlord has been decreed by both the courts below. 3. The respondent-landlord instituted a suit no. 12 of 2003 in the court of Judge, Small Causes Court with the allegation that the petitioner-tenant was occupying the premises on a rent of Rs.500/- per month and the son of the plaintiff namely Kailash Mera was managing the said property along with other properties on his behalf where-after, the landlord executed a general power of attorney in favour of Rakesh Sinha, Advocate. it is further pleaded that the tenant had defaulted in payment of rent with effect from 1.4.1997 to 30.7.2003 and has also not paid the water charges etc. with effect from 1.4.1997 and despite notice, neither he paid the rent nor vacated the premises. 4. The petitioner tenant contested the suit, inter-alia with the allegation that he was a tenant for the last about 34 years and initially the rent was Rs.150/- per month but subsequently was raised to Rs.175/- per month and he continues to pay the rent to the son of the landlord who did not issue any receipt thereof and no dues of rent or house and water charges are payable. 5. After the parties led evident, the suit was decreed for eviction and recovery of rent etc of Rs.15000/. The said decree was upheld in revision. 6. Learned counsel for the petitioner firstly urged that the landlord himself did not enter the witness box to prove the rate of rent and therefore so far as the rate of rent is concerned the statement of his son could not have been relied upon as secondary evidence without there being any justification for it. 7. A perusal of the record shows that it was the specific case of the landlord that his son used to manage the property on his behalf and the petitioner also admitted that he used to pay the rent to his son. Therefore mere non-examination of the landlord, would not disentitle him of any relief because otherwise both the courts below have found that the statement of the son of the landlord had to be believed. Therefore mere non-examination of the landlord, would not disentitle him of any relief because otherwise both the courts below have found that the statement of the son of the landlord had to be believed. From the case set up by the parties, it is apparent that the son of the landlord had personal knowledge about the rent which he has disclosed in the statement. In somewhat similar circumstances, a learned Single Judge of Uttaranchal High Court in the case of Atiqu Rehman Vs. Smt. Shashi Bala Jain [2006 (1) ARC 875] has found, after relying upon a decision of the Apex Court in the case of Pandurang Vs. Ramchandra [ AIR 1981 SC 2235 ] that mere non-examination of the plaintiff would not disentitle him for any relief, if it is otherwise proved on record the existence of a fact. 8. It is then urged that the trial court had not framed any issue with regard to payment of water tax and therefore it committed an error manifest on the face of the record. 9. A bare perusal of the judgment of the trial court shows that specific issue no. 3 was framed with regard to payment of rent and water tax and the parties had also led evidence on this aspect. Therefore, the argument cannot be accepted. 10. Lastly, it is urged that the holder of power of attorney can neither depose in place of the principal nor he could give notice for eviction. 11. Assuming for the moment that he could not have deposed so far as the payment of rent is concerned, both the courts below have placed strong reliance on evidence, including that of the son of the landlord, to hold that the rate of rent was Rs.500/- per month and that the petitioner was in arrears of rent. Apart from being holder of power of attorney, Sri Sinha was also a lawyer and therefore he could have sent the notice to the petitioner tenant. 12. The counsel for the petitioner has taken the court through finding recorded by the courts below and the issues involved have been decided by recording finding of fact which have not been shown to be perverse or otherwise erroneous on the face of the record. 13. No other argument has been urged. 14. 12. The counsel for the petitioner has taken the court through finding recorded by the courts below and the issues involved have been decided by recording finding of fact which have not been shown to be perverse or otherwise erroneous on the face of the record. 13. No other argument has been urged. 14. For the reasons above, this is not a fit case for interference under Article 226 of the Constitution of India. Rejected.