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2011 DIGILAW 20 (ALL)

Naveen v. Vibhu Kumar

2011-01-04

SHASHI KANT GUPTA

body2011
JUDGMENT : Shashi Kant Gupta, J. – 1. The present writ petition has been filed against the judgement and order dated 12.8.2010 passed by the Additional District Judge , Court no. 3, Bijnor in SCC Revision No. 19l of 2007, Naveen Vs. Vibhu Kumar and another (Annexure- 10) upholding the order of the trial court dated 10.10.2007(Annexure -7) whereby the suit of the plaintiffs for arrears of rent and ejectment was decreed in their favour. 2. The petitioner is , admittedly, a tenant of the premises in dispute . A suit, being SCC suit no. 21 of 2002, for arrears of rent and ejectment was filed by the landlord respondents no. 1 and 2 against the defendant petitioners from the disputed premises along with pendentilite and future interest on the ground that the defendants were tenants of the premises in dispute at the rate of Rs. 560-/ which was let out to them on 1.2.1990 for a period of 11 months; the tenancy began from 1st date of the month and expired on the last date of the month ; the premises in dispute was constructed in the year 1988 and , thus, the said premises is out of the ambit of the Act NO. 13 of 1972 ( hereinafter referred to as the ''Act"); the defendants did not pay the rent since May, 2000 despite repeated demands and as such they committed default and , therefore , a registered notice on behalf of the plaintiffs was given to the defendants on 31.8.2001 by means of which they terminated the tenancy of the defendants on expiry of 30 days from the date of receipt of the said notice; defendants neither paid the rent nor vacated the suit premises. Thus, plaintiffs filed a suit for arrears of rent, ejectment and also claimed damages at the rate of Rs. 1000/- per month. 3. On the other hand, the defendants filed their written statements and admitted the tenancy but it was disputed that the tenancy began from the 1st day of the month and expired on the last day of the month. They also alleged that the shop was not constructed in the year 1988, rather , it was constructed in the year 1983, hence the provisions of the said Act are applicable to the disputed premises . They also alleged that the shop was not constructed in the year 1988, rather , it was constructed in the year 1983, hence the provisions of the said Act are applicable to the disputed premises . They further alleged that they had not committed any default whatsoever in payment of the rent; Neither any memorandum of deed , as alleged by the landlords, was executed on 31.1.1990 nor the same bears the signature of the petitioner and , therefore, the alleged memorandum is a forged piece of document and the same has been procured for the purpose of the present case; the father of the plaintiffs, Mr. Rajeev Kumar Arya used to receive the rent but no receipt in respect thereof was issued to them ; there developed family dispute between the plaintiffs and their father Rajeev Kumar Arya , hence the plaintiff denied the receipt of rent upto July, 2001 which was received by Rajiv Kumar Arya . 4. The plaintiffs filed replication No. C-24 wherein they reiterated the contents of the plaint .The respondents plaintiffs in support of their case adduced oral testimony of Sri Rajeev Kumar Arya as P.W. 1 and filed documentary evidence including the rent note dated 30.1.90 and the notice dated 31.8.2001 sent on behalf of the plaintiffs and other relevant documents but on behalf of the defendants no oral evidence was adduced. 5. After hearing the parties and considering the evidence led by the rival sides, the trial court held that the Act no. 13 of 1972 is not applicable to the premises in dispute and the plaintiff respondents have rightly terminated the tenancy , and as such , the suit for arrears of rent and ejectment was decreed in favour of the landlord respondents on 10.10.2007. 6. Being aggrieved and dissatisfied with the said order, a revision was filed by the petitioner which was dismissed on 12.8.2010 by the Addl. District Judge, Bijnor. Hence, the present writ petition. 7. Learned counsel for the petitioner submitted that the impugned orders suffer from a manifest error apparent on the face of record and the same are liable to be set aside by this court. He further submitted that the plaintiffs failed to prove entirely their case even they did not enter into the witness box and as such the suit of the plaintiffs was liable to be dismissed on this ground alone. He further submitted that the plaintiffs failed to prove entirely their case even they did not enter into the witness box and as such the suit of the plaintiffs was liable to be dismissed on this ground alone. He further submits that the plaintiffs have completely failed to prove that the shop in question was constructed in the year 1988 and they further failed to prove the date of construction of the premises in dispute ; the said premises does not fall within the ambit of Explanation I of Sub section (2) of Section 2 of U.P. Act no. 13 of 1972. 8. He further submitted that the alleged power of attorney is not signed by Mr. Rajeev Kumar Arya and this fact itself goes to show that the said document is a forged piece of paper and on the basis of said document P.W. 1 Rajeev Kumar Arya has no right to give evidence on behalf of the plaintiffs. It was further submitted that the alleged notice terminating the tenancy of the defendants is illegal, vague and misconceived. 9. Heard learned counsel for the parties and perused the record. 10. A bare perusal of the record goes to show that the petitioners have admitted the tenant- landlord relationship. It is also not disputed that the plaintiffs were minor in the year 1990 when the alleged rent note was executed although execution of the rent note has been denied . The petitioners have also not disputed the receipt of the legal notice dated 31.82001 issued by the plaintiffs under section 106 of Transfer of Property Act . The main contention of the petitioners is that since the property in dispute was constructed in the year 1983 , the said property is covered under the said Act and the father of the plaintiffs , who is the holder of power of attorney , has no right to appear as a witness on behalf of the plaintiffs in the capacity of that party. 11. The petitioner has not adduced any evidence before the courts below to demonstrate that the disputed premises was constructed in the year 1983. At this juncture, it would be relevant to refer to the provisions of Explanation I to Sub - Section (2) of Section 2 of U.P. Act no. 11. The petitioner has not adduced any evidence before the courts below to demonstrate that the disputed premises was constructed in the year 1983. At this juncture, it would be relevant to refer to the provisions of Explanation I to Sub - Section (2) of Section 2 of U.P. Act no. 13 of 1972 which runs as under : "Explanation I.--- [For the purposes of this section],--- (a) the construction of a building shall be deemed to have been completed on the date on which the completion thereof is reported to or otherwise recorded by the local authority having jurisdiction, and in the case of building subject to assessment, the date on which the first assessment thereof comes into effect, and where the said dates are different, the earliest of the said dates, and in the absence of any such report, record or assessment, the date on which it is actually occupied ( not including occupation merely for tha purposes of supervising the construction or guarding the building under construction) for the first time: Provided that there may be different dates of completion of construction in respect of different parts of a building which are either designed as separate units or are occupied separately by the landlord and one or more tenants or by different tenants; (b) "construction" includes any new construction in place of an existing building which has been wholly or substantially demolished; (c) where such substantial addition is made to an existing building that the existing building becomes only a minor part thereof the whole of the building including the existing building shall be deemed to be constructed on the date of completion of the said addition. 12. Thus, the construction of a building shall be deemed to have been completed on the date on which the completion thereof is reported to or otherwise recorded by the local authority, and in the case of building subject to assessment , the date on which the first assessment thereof comes into effect , and where the said dates are different, the earliest of the said dates, and in the absence of any such report, record or assessment , the date on which it is actually occupied . 13. In the year 1988 the plaintiffs were minor and the disputed premises was constructed by their father, Mr. 13. In the year 1988 the plaintiffs were minor and the disputed premises was constructed by their father, Mr. Rajeev Kumar Arya, who has stated on oath that the disputed premises along with 11 other shops were constructed in the year 1988 which for the first time was assessed by the Nagar Palika in the year 1991 and the copy of the first assessment has also been filed which goes to show that the disputed premises was assessed in the year 1991 and on the contrary, there is no other evidence on record to show that at any point of time , prior to it, the disputed premises was assessed . The petitioners have not been able to show that prior to letting out the premises in dispute to them, it was occupied by any one else. The petitioners have not mentioned any date of commencement of tenancy in their written statement. However, the plaintiffs have categorically stated that the premises in dispute was let out to the defendants on 1.2.1990 for a period of 11 months and in support of his contention memorandum of tenancy is on the record which was executed between the petitioner/defendants and Rajeev Kumar Arya ( father of the plaintiffs) on 30.1.1990 and this document( rent deed) has been proved by P.W. 1 Rajeev Kumar Arya. 14. The Courts below, on the basis of the materials available on the record as well as the oral evidence, recorded a finding of fact that the disputed premises was constructed in the year 1988 and there is nothing on record to show that the said premises was constructed in the year 1983 as alleged by the petitioners. The record also shows that the first assessment of the disputed premises was made in the year, 1991 and as such the documentary as well as the oral evidence available on record clearly goes to show that the construction of the disputed premises was made after 23.4.1985 and the assessment was made in the year 1991, therefore, the courts below were fully justified in holding that the U.P. Act no. 13 of 1972 is not applicable in the matter. 15. The second submission by the learned counsel for the petitioners is that the plaintiffs have failed to prove his case because they did not appear in the witness box and the oral testimony of P.W. 1 Mr. 13 of 1972 is not applicable in the matter. 15. The second submission by the learned counsel for the petitioners is that the plaintiffs have failed to prove his case because they did not appear in the witness box and the oral testimony of P.W. 1 Mr. Rajeev Kumar Arya, the father of the plaintiffs is not admissible inasmuch as power of attorney holder of a party can not appear as a witness on behalf of the plaintiffs in the capacity of that party. 16. I am unable to agree with the submissions of the learned counsel for the petitioner for the following reasons: There is no dispute that the petitioners were inducted as tenants in the premises in dispute by the father of the plaintiffs and at that time the plaintiffs were minors . Memorandum of tenancy/rent deed was executed between the petitioners and Mr. Rajeev Kumar Arya, the father of the plaintiffs, being their guardian and the said deed bears the signature of the petitioners as well as of Mr. Rajeev Kumar Arya and since the said deed was executed by the father of the plaintiff, it was within his personal knowledge. The plaintiffs have neither denied nor disputed the execution of the power of attorney in favour of their father Rajeev Kumar Arya . Receipt of notice issued by the plaintiffs under section 106 of Transfer of Property Act has not been denied by the petitioner. 17. In the case of Janki Vashdeo Bhojwani and another Vs. Indusind Bank Ltd. and others,1 it was held that the word "acts" used in Rule 2 of Order III of the CPC does not include the act of power of attorney holder to appear as a witness on behalf of a party in the capacity of the party. However, it has also been held in the aforementioned case that the power of attorney holder of a party can appear only as a witness in his personal capacity and whatever knowledge he has about the case he can state on oath although he cannot appear as a witness on behalf of the party in the capacity of that party. (Emphasis supplied) 18. In the present case, as stated herein above, the premises in dispute was constructed by Mr. Rajeev Kumar Arya. At the time, when the defendant petitioner was inducted as a tenant by Mr. (Emphasis supplied) 18. In the present case, as stated herein above, the premises in dispute was constructed by Mr. Rajeev Kumar Arya. At the time, when the defendant petitioner was inducted as a tenant by Mr. Rajeev Kumar Arya , the plaintiffs were minor and the rent note was executed between the petitioner defendant and Rajeev Kumar Arya ( father of the plaintiff). Besides this, the receipt of notice issued under section 106 of Transfer of Property Act has also not been denied by the petitioner. The aforementioned vital facts, which were deposed by Rajiv Kumar Arya as P.W. 1 before the court below, were well within his personal knowledge . Therefore, merely because the plaintiffs did not enter into the witness box , it by itself can not be a ground for discarding the testimony of Mr. Rajeev Kumar Arya who happens to be the father of the plaintiffs . 19. Learned counsel for the petitioner in support of his contention has relied upon the decisions in the case of Iswar Bhai C. Patel @ bachu Behera and another vs. Harihar Behera2 and Vidhyadhar vs. Mankikrao and another3 wherein it has been held that adverse presumption has to be drawn against a party if he has not entered into the witness box and if has not presented himself for cross examination. In my opinion, in view of the discussions made herein above, the aforementioned authorities have no bearing on the case in hand. 20. It has also been contended by the learned counsel for the petitioners that the alleged power of attorney was not signed by the plaintiffs . This contention of the learned counsel is totally misconceived and can not be upheld for the simple reason that the execution of the said power of attorney in favor of Rajiv Kumar Arya has not been denied by the plaintiffs themselves. 21. The courts below , after meticulously examining the entire materials on record, have given a cogent, convincing and satisfactory reasons while decreeing the suit of the plaintiffs in their favour. 21. The courts below , after meticulously examining the entire materials on record, have given a cogent, convincing and satisfactory reasons while decreeing the suit of the plaintiffs in their favour. Since the findings recorded by the courts below are neither perverse nor based on any extraneous consideration or irrelevant material, this Court, while exercising its power under Article 226 of the Constitution of India, can not substitute its opinion for the opinion of the courts below unless it is found that the conclusion drawn by the courts below is manifestly illegal and perverse. The courts below have recorded a categorical finding that the petitioners have committed default in payment of the rent. 22. In view of what has been discussed, herein above, I do not find any illegality, infirmity or perversity in the impugned orders which may warrant any interference by this Court. 23. In the result, the writ petition fails and is dismissed. Petition Dismissed.