Sunil Kumar Tulsyan S/o Om Prakash Tulsyan v. Mita Saha D/o late Sheela Saha
2017-07-21
AMITAV K.GUPTA
body2017
DigiLaw.ai
ORDER : Amitav K. Gupta, J. This revision has been filed by the defendant/tenant against the judgment and decree dated 22.12.2014 and 08.01.2015 respectively, passed by the learned Civil Judge (Junior Division), Dhanbad, in Title Eviction Suit No. 56 of 2008, whereby the suit for eviction, on the ground of bona fide need has been decreed in favour of the plaintiffs/respondents. 2. The case of the plaintiff (respondent-herein) is that the defendant (petitioner in the present revision) was a tenant in a shop owned by the plaintiff measuring 9' x 20' ft., i.e., the suit property described as schedule 'B' which is part and parcel of schedule 'A' property measuring 10 decimals. That Shila Saha was the owner of the entire suit land comprising of schedule 'B' and schedule 'A'. After her death the plaintiffs being daughters and son of one deceased daughter, inherited the suit property. The plaintiffs executed a power of attorney in favour of M/s Balajee Developers Pvt. Ltd., and instituted the Title Eviction Suit No. 56 of 2008 through the holder of power of attorney on the ground of bona fide need and necessity and termination of monthly tenancy w.e.f on 30.09.2008. The plaintiffs/landlords by way of bona fide requirement sought demolition of the entire structure including the tenanted shop in question and for construction of apartments for the purpose of residence of the plaintiffs as well as for commercial space required for business of the husband of plaintiff No. 3. The plaintiffs had resolved the matter with other tenants who had agreed to vacate the premises and the plaintiffs executed a development agreement with M/s Balajee Developers Pvt. Ltd. for construction of the apartment. The petitioner/tenant contested the suit inter alia denying the cause of action for the suit of eviction and pleaded that the plaintiffs had no bona fide requirement of the suit premises, i.e., the shop in question. It is averred that the plaintiffs' suit through constituted attorney was not maintainable. That in the garb of bona fide need, the plaintiffs wanted to earn huge money by construction of multi-storied building without getting the approval of MADA and for that purpose a development agreement was executed with M/s Balajee Developers Pvt. Ltd. 3. On the pleadings of the parties the trial court framed the issues and on the basis of the evidence on record decreed the suit by aforesaid impugned judgment and decree.
On the pleadings of the parties the trial court framed the issues and on the basis of the evidence on record decreed the suit by aforesaid impugned judgment and decree. 4. Learned counsel for the petitioner has assailed the judgment and decree of the court below inter alia on the following grounds:- (i) that the learned court below has failed to discuss the evidence of all defence witnesses; (ii) that no finding on the partial eviction has been given; (iii) that finding on issue Nos. 3 to 6 have been given cumulatively instead of separate findings; (iv) that the eviction suit on the ground of personal necessity could not be instituted through constituted attorney rather should have been instituted by the plaintiffs; (v) that the agreement entered with the power of attorney holder cannot be relied upon because it does not mention that all the directors of M/s Balajee Developers Pvt., Ltd., had authorized the signatory director, Mr. Pramod Kumar Agarwal; (vi) that the power of attorney dated 08.10.2007 has been executed by the landlord/plaintiffs in favour of M/s Balajee Developers Pvt. Ltd. in the district of Giridih while the disputed shop lies within the jurisdiction of Dhanbad; (vii) that the development plan, prepared by the plaintiffs through the constituted attorney, has not been sanctioned by MADA; (viii) That the plaintiffs have not sought eviction of tenants of other three rented shops in the building marked 'A'; (ix) that the necessity cannot be fulfilled by construction of an apartment rather it shows that the plaintiffs wants to earn huge money by constructing the apartment for residence as well as for commercial purposes; (x) that some of the plaintiffs have their own house within the local jurisdiction of Dhanbad, as such, it cannot be believed that there is any personal necessity of the plaintiffs to reside in the space allotted to the defendants; (xi) That the learned court below did not appreciate the deposition of D.Ws. -1, 2, 3 & 4, who have stated that there was in fact no personal necessity of the plaintiffs. The petitioner has also filed first and second supplementary affidavit dated 06.07.2015 and 10.08.2015. It has been disclosed :- (i) that the construction plan has been sanctioned by the appropriate authority except the suit premises.
-1, 2, 3 & 4, who have stated that there was in fact no personal necessity of the plaintiffs. The petitioner has also filed first and second supplementary affidavit dated 06.07.2015 and 10.08.2015. It has been disclosed :- (i) that the construction plan has been sanctioned by the appropriate authority except the suit premises. (ii) that despite prohibitory direction dated 14.02.2015 of MADA, the plaintiffs have continued with the construction; (iii) that after passing of the judgment and decree a new tenancy has been created in favour of M/s Arogya Medicals and one Subhash Chandra Mahto which establishes the fact that the plaintiffs did not have any bona fide necessity; (iv) that as per the photographs attached, the shop in question of the petitioner does not pose any hindrance to the ongoing construction. Through third supplementary affidavit dated 23.11.2015, the petitioner/tenant has tried to bring on record (i) that efforts for compromise between the parties was not successful; (ii) that by sale deed dated 27.02.2015 the plaintiffs have sold out the ground floor portion of newly constructed apartment. From the arguments advanced it is noticed that the petitioner/tenant's grievances are (i) that the evidence of the defendants was not considered properly by the court below; (ii) that no finding has been given on the point of partial eviction; (iii) that the respondents/landlord does not have bona fide need for residence or for carrying business activity rather the plaintiff wanted to earn huge money by constructing a commercial complex on the entire land including the tenanted shop in question, for which, they had executed an agreement with M/s Balajee Developers Pvt. Ltd; (iv) that the plaintiffs/landlord could not have legally instituted the suit through the holder of power of attorney; (v) that the subsequent renting out of shops to other two persons shows that the plaintiffs, in fact, had no bona fide requirement. 5.
5. The respondents' plea may be summarized as hereunder :- (i) That defence evidence was properly considered by the learned court below and re-appreciation of evidence is not permissible in exercise of revisional jurisdiction in the absence of any perversity in the findings recorded by the lower court (ii) that there is no legal bar for institution of eviction suit through constituted attorney; (iii) that subsequent events of letting out to some other tenants is not the clinching issue because the need of the landlord is to be seen on the date of institution of the suit; (iv) that non sanction of the construction plan by the Mineral Area Development Authority does not have any adverse impact on the case; (v) that the petitioner/tenant cannot dictate the choice to the landlord. 6. Having heard the learned counsels and upon perusal of the materials on record, the only point which falls for consideration before this Court is whether the petitioner/tenant has brought forth a reasonable case warranting interference with the findings of the learned court below. 7. Before entering into discussion on the arguments propounded, it would be apposite to discuss, in brief, the jurisdictional power of the revisional Court. The respondent/landlord has relied upon the decision in the case of Hindustan Petroleum Corporation Ltd. v. Dilbahar Singh, reported in 2014 (9) SCC 78 , wherein the Constitution Bench of the Hon'ble Supreme Court, while discussing the Rent Acts of Haryana, Tamilnadu and Kerela, has been pleased to hold (para-28) that the High Court can interfere within the permissible parameters provided in the statute and that the revisional jurisdiction, would depend on the language employed by the statute conferring appellate jurisdiction and revisional jurisdiction. It has been held in para-43 that the High Courts should not interfere with the findings of the fact recorded by the courts below. That while considering or examining of evidence is confined only to find out whether the findings of fact recorded by the court below is according to law and does not suffer from any error of law. It has been expounded that a finding of fact recorded by the court below, if perverse or has been arrived at without consideration of the material evidence or misreading of evidence is open to correction. 8.
It has been expounded that a finding of fact recorded by the court below, if perverse or has been arrived at without consideration of the material evidence or misreading of evidence is open to correction. 8. In the present case the revisional jurisdiction of the High Court has been enunciated in Section 14(8) of the Jharkhand Buildings (Lease, Rent & Eviction) Control Act, 2011, which reads as under :- "14(8). No appeal or second appeal shall lie against an order for the recovery of possession of any premises made in accordance with procedure specified in this section : Provided that on an application being made within sixty days of the date of the order of eviction the High Court may for the purpose of satisfying itself that an order under the section is according to law, call for the records of the case and pass such order in respect thereto as it thinks fit." On plain reading of the provision it is clear that the High Court can interfere only in order to satisfy itself whether the order is in accordance to law. The expression, 'according to law' as per the aforementioned Constitution Bench decision, means that the legality, propriety, correctness or lawfulness of the findings could be tested by the High Court. Therefore, the settled legal position is that under the revisional jurisdiction the High Court should not empowered to interfere with the findings of fact recorded by the court below unless any error of law or perversity in findings has been committed by the court below in recording of findings accordingly, the contention of the counsel for the petitioner has to be examined in view of the settled proposition. 9. The petitioner has raised the question that landlord/plaintiffs could not have legally instituted the present eviction suit through constituted power of attorney rather they should have instituted it personally. Per contra the respondents while citing Order 3 C.P.C, have taken the plea that there is, as such, no bar for institution of suit through constituted attorney. 10. At this juncture it is relevant to mention that the law relating to power of attorney is governed by the provisions of Powers of Attorney Act, 1982 as well as by the provisions contained under Order 3 C.P.C. These provisions give legal power to an agent to exercise the defined acts and powers in terms of the executed power of attorney.
This view has been taken by the Hon'ble Supreme Court (Para 36) in the case of Kasthuri Radhakrishnan & Ors. v. M. Chinniyan & Anr., reported in (2016) (3) SCC 296. 11. The revisionist/petitioner has taken a plea that the power of attorney was not legally executed document between the landlords and M/s Balajee Developers Pvt. Ltd, because it was executed in the district of Giridih while the suit property is situated at Dhanbad. Learned counsel for the respondents/landlords has taken the plea that there is, as such, no bar under the Indian Registration Act, 1908 for execution of such powers of attorney even in a place where the suit property is not situated. 12. In this connection it will be profitable to refer to Sections 32 & 33 of the Indian Registration Act, which read as follows :- "32. Persons to present documents for registration - Except in the cases mentioned in [section 31, 88 and 89], every document to be registered under this Act, whether such registration be compulsory or optional, shall be presented at the proper registration office,- (a) by some person executing or claiming under the same, or, in the case of a copy of a decree or order, claiming under the decree or order, or (b) by the representative or assign of such person, or (c) by the agent of such person, representative or assign, duly authorised by power-of-attorney executed and authenticated in manner hereinafter mentioned. 33. Power-of-attoreny recognizable for purposes of section 32.
33. Power-of-attoreny recognizable for purposes of section 32. - For the purposes of section 32, the following powers-of-attorney shall alone be recognised, namely, - (a) if the principal at the time of executing the power-of-attorney resides in any part of India in which this Act is for the time being in force, a power-of-attorney executed before and authenticated by the Registrar or Sub-Registrar within whose district or sub-district the principal resides; (b) if the principal at the time aforesaid resides in any part of India in which this Act is not in force, a power-of-attorney executed before and authenticated by any Magistrate; (c) if the principal at the time aforesaid does not reside in India a power-of-attorney executed before the authenticated by a Notary Public, or any Court, Judge, Magistrate, [Indian] Consul or Vice-Consul, or representative of the Central Government: Provided that the following persons shall not be required to attend at any registration office or Court for the purpose of executing any such power-of-attorney as is mentioned in clauses (a) and (b) of this section, namely,- (i) persons who by reason of bodily infirmity are unable without risk or serious inconvenience so to attend; (ii) persons who are in jail under civil or criminal process; and (iii) persons exempt by law from personal appearance in Court. [Explanation. - In this sub section "India" means India, as defined in clause (28) of section 3 of the General Clauses Act, 1897.] (2) In the case of every such person the Registrar or Sub-Registrar or Magistrate, as the case may be, if satisfied that the power-of-attorney has been voluntarily executed by the person purporting to be the principal, may attest the same without requiring his personal attendance at the office or Court aforesaid. (3) To obtain evidence as to the voluntary nature of the execution, the Registrar or Sub-Registrar or Magistrate may either himself go to the house of the person purporting to be the principal, or to the jail in which he is confined, and examine him, or issue a commission for his examination. (4) Any power-of-attorney mentioned in this section may be proved by the production of it without further proof when it purports on the face of it to have been executed before and authenticated by the person or Court hereinbefore mentioned in that behalf." 13.
(4) Any power-of-attorney mentioned in this section may be proved by the production of it without further proof when it purports on the face of it to have been executed before and authenticated by the person or Court hereinbefore mentioned in that behalf." 13. On plain reading of the above provisions, it is abundantly clear that it does not lay down or stipulate that power of attorney for any act or exercise in relation to any property should always be executed at the place where the property is situated rather it prescribes which are the persons empowered to present a document for registration. Obviously, in the present case there is, as such, no case of presentation of any deed for registration of power of attorney. 14. It has been submitted by the revisionist/tenant that in page 13 of the judgment the court below while agreeing with contentions of the tenant, has erred in recording a finding otherwise. On perusal of the findings recorded by the court below on this aspect it is abundantly clear that the court below has not substantially agreed with the submissions of the tenant (petitioner) and found that the pleadings have been verified lawfully according to Order 6, Rule 15 of the C.P.C and the plaintiffs have also deposed before the court below to establish their case of personal necessity. Thus in view of the said findings it is held that the learned court below has not committed any illegality on this count and the arguments advanced is responded to accordingly. 15. On the issue of partial eviction, as is apparent from the evidence of the plaintiffs, brought on record by the petitioner, it is amply clear that the court below has meticulously examined and discussed the evidence in threadbare details and recorded the finding that the entire suit land marked 'A' including the tenanted shops marked 'B' was required by the plaintiffs for construction of a new building for residential and commercial purposes. This has been the consistent case of the plaintiffs/landlord moreover, it is an admitted case that the tenanted portion is situated facing the main road and would be commercially beneficial to the plaintiffs. Looking to the dimension of the shop in question and need of the plaintiffs it can not be presumed that partial eviction would suffice the purpose of the suit.
Looking to the dimension of the shop in question and need of the plaintiffs it can not be presumed that partial eviction would suffice the purpose of the suit. The tenant has also not asserted at any stage that a portion of the premises in question will satisfy the requirement of the landlord and the tenant is agreeable to such partial eviction. Although the court below has not given any finding on partial eviction in specific terms, but it has elaborately discussed and held that eviction from the entire portion of shop alone will satisfy the requirement of the plaintiffs/landlord. 16. On the question that the court below has not discussed the evidence of defendants, it is noticed that the evidence of two material witnesses, i.e., D.Ws.-11 & 12 was discussed by the learned court below and no illegality has been pointed out regarding the findings based on their evidence. The documentary evidence of the defendants/tenants has been considered and discussed by the learned court below. It is evident that the questions raised and grounds made out for assailing the order do not establish that there is any perversity in the findings or error of law in the judgment passed by the court below. 17. The question that the construction plan (as per the agreement between the landlord and M/s Balajee Developers Pvt. Ltd) was not sanctioned by the MADA is irrelevant so far as the present suit is concerned, because if any construction was even being carried out on the landlord's land (leaving aside the tenanted portion) without any sanctioned plan, that could be better looked into by Mineral Area Development Authority itself and necessary action could be taken by Mineral Area Development Authority, and this has no bearing on the facts of the present case. The tenant/revisionist through second and third supplementary affidavits dated 10.08.2015 and 23.11.2015, has admitted that the plaintiffs after passing of the decree have constructed apartment on schedule A land and have even sold out the ground floor portion to the developer M/s Balajee Developers Pvt. Ltd. and after the decree and after the construction, two new tenants have been inducted which goes to show that the issue of personal necessity has lost significance and such acts of the plaintiffs has demolished their plea of bona fide necessity.
It has been argued that this subsequent event dis-entitles the plaintiffs from seeking eviction of the petitioner/revisionist. The above arguments of the petitioner is not acceptable because in the facts of the present case, this Court is of the considered opinion that judicial notice of the fact can be taken, that in every agreement entered with the developer, the terms of the agreement stipulates a quantified share of the developer. The developer has the right to sell the proportionate share allotted to him to the intending purchasers through the owner. As such, such sale does not impinge the plea of personal necessity of the landlord. The landlord's claim of personal necessity can be questioned or challenged if the landlord alienates his similarly situated property of the suit property which is required by him. 18. From the version of the petitioner, it is manifest that disputed shop is situated facing the road and is commercially more beneficial for carrying on a business. It is well settled proposition that the tenant cannot dictate the terms of the choice regarding the number of other shop or house or its suitability to the landlord. It is the prerogative of the landlord to choose the premise which best suits his requirement. The same is contained in Explanation II appended to Section 11(i)(c) of the Jharkhand Building Act which reads as hereunder :- "Where there are two or more premises let out by the landlord, it will be for the landlord to choose which one would be preferable to him and the tenant or tenants shall not be allowed to question such preference". 19. Hon'ble Supreme Court in the case of Ragavendra Kumar v. Firm Prem Machinary and Co., reported in AIR 2000 SC 534 . and in the case of Pratap Rai Tanwani & Anr. v. Uttam Chandra & Anr., reported in 2004 (8) SCC 490 , has held that bona fide requirement of the landlord is to be seen on the date of the institution of the suit and the subsequent events intervening due to protracted litigation will not be relevant and the subsequent events can be taken into consideration for moulding the relief provided such events have material impact on such rights and obligation. In the present case due to the protracted litigation the lanlord's need has become more pressing and urgent. 20.
In the present case due to the protracted litigation the lanlord's need has become more pressing and urgent. 20. It is an admitted case that pursuant to the construction agreement, the ground floor was sold out to the Builder vide sale deed dated 27.02.2015 while disputed shop has not been still touched due to the pending litigation since 2008. The induction of two new tenants does not have adverse impact on the reliefs sought because since inception of the suit the entire building, along with the suit land being, in dilapidated condition has been sought to be renovated and constructed in order to satisfy the need of the respondent/plaintiffs as well as for business of the plaintiffs family members. 21. On the point of partial eviction, the court has categorically held that the entire premises is required by the landlord and the tenant nowhere has pleaded or asserted that he is ready for partial eviction, hence the finding of the court below on this issue also does not require any interference. 22. Having considered the entire aspect as discussed above, it is apparent that the plaintiff/respondent has successfully proved the element of need and the suit could be instituted by the agent/power of attorney holder, but the need should be that of the owner and not that of the agent/power of attorney holder. In this case the need of the owner has been established. 23. In the backdrop of the discussions made herein above, no cogent or reasonable ground is made out for interfering with the findings of the learned court below. Therefore, the judgment and decree of the court below is, hereby, affirmed and this revision stands dismissed.