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2017 DIGILAW 2641 (ALL)

Atul Gupta v. Vivek Gupta

2017-11-15

VIVEK KUMAR BIRLA

body2017
JUDGMENT : Vivek Kumar Birla, J. Heard Sri Krishnaji Khare, learned counsel for the tenant-revisionist and Sri Rishi Chaddha, learned counsel for the landlord-opposite party and perused the record. 2. Present revision has been filed challenging the judgment and order dated 24.5.2017 passed by the Xth Additional District Judge, Agra in SCC Suit No. 45 of 2012 (Vivek Gupta v. Atual Gupta). 3. By the impugned judgment and order, SCC suit filed by the landlord (respondent herein) for rent and eviction was allowed by the Court below. The suit was filed on the ground that one rent deed was executed between the parties on 14.7.2005, according to which the revisionist herein was inducted as tenant on monthly rent of Rs. 6,000/-; the revisionist did not pay the rent after 1.1.2012 and also did not vacate the premises; he had acquired flat in Manu Apartment, Hirabagh; in the year 2010 in panchayat one agreement dated 19.12.2010 took place, according to which the tenant agreed to vacate the flat in dispute by 31.5.2012 but it was not vacated and the rent was also not paid, therefore, a registered notice dated 2.7.2012 was sent to the tenant, which was replied by him vide reply dated 30.7.2012; the rent from 1.1.2012 to 5.8.2012 at the rate of Rs. 6,000/- was claimed; and it was further alleged that the tenant has damaged certain portion of the property in dispute and for this purpose, damages to the tune of Rs. 45,000/- plus notice expenses etc. were also claimed. 4. Submission of learned counsel for the revisionist is that the suit was contested by the landlord-Vivek Gupta through power of attorney Sri Shiv Kumar Gupta, who happened to be his father-in-law and he was not authorized to give notice and that the relief sought in the plaint could not have been claimed through power of attorney holder. The finding regarding rate of rent is also being disputed. Apart from this, a new question is being raised before this Court that as per Clause 4 of the Second Schedule of the Provincial Small Cause Courts Act, 1887 (hereinafter referred to as the 'Act'), a suit for the possession of immovable property or for the recovery of an interest in such property is not cognizable by the Judge Small Causes Court. 5. 5. In support of his submissions, learned counsel for the revisionist has placed reliance on a judgment of Hon'ble Apex Court rendered in the case of A.C. Narayanan v. State of Maharashtra and another, (2014) 11 SCC 809 as well as the judgments of this Court rendered in the cases of Akkhilesh Chand Varshney v. Bhagwati Devi, 1976 AIR (All) 42, Smt. Ram Sakhi Dwivedi v. Rama Kant Gupta, 1988 ALL. L.J. 989 and in Nagar Palika Parishad Firozabad through its Executive Officer v. Deoki Nand Sharma, 2007 All. C.J. 1896. 6. Insofar as the jurisdiction of the Small Causes Court is concerned, this question is being raised for the first time before this Court and submission of learned counsel for the revisionist that even if the aforesaid question was not raised before the Court below, the question being legal in nature can be raised at any stage and therefore, the revisionist is entitled to raise the same at this stage. In support of this, learned counsel for the revisionist has placed reliance on a judgment of this Court rendered in the case of State of Uttar Pradesh v. Anupam Gupta, 1993 (Suppl) SCC 594. 7. Per contra, Sri Rishi Chaddha, learned counsel for the landlord-opposite party has submitted that the power of attorney is fully entitled to give notice to the tenant and for this purpose, as indicated in the power of attorney, he was fully entitled to do so in the present case also. He further submits that apart from this, one amendment application given by the tenant in this respect, was rejected by the Court below vide order dated 10.1.2017 after recording the statement of plaintiff-Vivek Gupta himself wherein he has categorically stated that for the purpose of this case only he has given power of attorney and same is not applicable in other cases. As such, the notice given to the tenant was perfectly just and legal. 8. I have considered the rival submissions and perused the record. 9. So far as the question of relief claimed through power of attorney is concerned, in the present case the landlord-plaintiff himself had appeared before the Court below and stated that he had given the power of attorney for this case. No defect could be pointed out in the execution of the same and thus, the same is valid power of attorney. No defect could be pointed out in the execution of the same and thus, the same is valid power of attorney. Once it is held that the power of attorney was valid in this case, the relief so claimed in the plaint could have been claimed by the plaintiff-Vivek Gupta through power of attorney. 10. By A.C. Narayana 2014 (supra), the matter was referred to Larger Bench regarding power of a Power of Attorney. The reference was answered by Larger Bench of Hon'ble Apex Court in the case of A.C. Narayanan v. State of Maharashtra and another, (2015) 12 SCC 203 wherein it has been categorically held that a complaint by power of attorney holder is valid complaint and the power of attorney holder can depose and verify on oath before the Court in order to prove the contents of the complaint. Paragraphs 12 and 15 of the aforesaid judgment are quoted as under:- "12. The matter was considered by a larger Bench of three Judges. By judgment dated 13.9.2013 in A.C. Narayanan v. State of Maharashtra, (2014) 11 SCC 790 the said larger Bench framed the following questions: "21.1 (i) Whether a power-of-attorney holder can sign and file a complaint petition on behalf of the complainant/Whether the eligibility criteria prescribed by section 142 (a) of the NI Act would stand satisfied if the complaint petition itself in the name of the payee or the holder in due course of the cheque? 21.2 (ii) Whether a power-of-attorney holder can be verified on oath under Section 200 of the Code? 21.3 (iii) Whether specific averments as to the knowledge of the power-of-attorney holder in the impugned transaction must be explicitly asserted in the complaint? 21.4 (iv) If the power-of-attorney holder fails to assert explicitly his knowledge in the complaint then can the power-of-attorney holder verify the complaint on oath on such presumption of knowledge? 21.5 (v) Whether the proceedings contemplated under Section 200 of the Code can be dispensed with in the light of section 145 of the NI Act which was introduced by an amendment in the year 2002?" 13. ..... 14. .... 15. 21.5 (v) Whether the proceedings contemplated under Section 200 of the Code can be dispensed with in the light of section 145 of the NI Act which was introduced by an amendment in the year 2002?" 13. ..... 14. .... 15. While holding that there is no serious conflict between the decisions in M.M.T.C. Ltd. v. Medchl Chemicals and Pharma (P) Ltd., (2002) 1 SCC 234 and Janki Vashdeo Bhojwani v. Indusind Bank Ltd., (2005) 2 SCC 217 , the larger Bench clarified the position and answered the questions framed in the following manner: "33.1 (i) Filing of complaint petition under section 138 of the NI Act through power of attorney is perfectly legal and competent. 33.2 (ii) The power-of-attorney holder can depose and verify on oath before the court in order to prove the contents of the complaint. However, the power-of-attorney holder must have witnessed the transaction as an agent of the payee/holder in due course or possess due knowledge regarding the said transactions. 33.3 (iii) It is required by the complainant to make specific assertion as to the knowledge of the power-of-attorney holder in the said transaction explicitly in the complaint and the power-of-attorney holder who has no knowledge regarding the transactions cannot be examined as a witness in the case. 33.4 (iv) In the light of section 145 of the NI Act, it is open to the Magistrate to rely upon the verification in the form of affidavit filed by the complainant in support of the complaint under section 138 of the NI Act and the Magistrate is neither mandatorily obliged to call upon the complainant to remain present before the Court, nor to examine the complainant of his witness upon oath for taking the decision whether or not to issue process on the complaint under section 138 of the NI Act. 33.5 (v) The functions under the general power of attorney cannot be delegated to another person without specific clause permitting the same in the power of attorney. Nevertheless, the general power of attorney itself can be cancelled and be given to another person." (Emphasis supplied) 11. Under such circumstances, this Court is of the opinion that there was no defect in the notice or the relief prayed for in the plaint by the landlord through the power of attorney, who was specifically authorized to do so. 12. Nevertheless, the general power of attorney itself can be cancelled and be given to another person." (Emphasis supplied) 11. Under such circumstances, this Court is of the opinion that there was no defect in the notice or the relief prayed for in the plaint by the landlord through the power of attorney, who was specifically authorized to do so. 12. Insofar as the finding regarding payment of rent by the tenant to the landlord is concerned, the Court below has categorically found that no evidence whatsoever was given by the tenant to prove that he had ever made payment so allegedly given by him on 7.6.2012 and 16.6.2012 in cash to Vivek Gupta himself, which also included the rent in advance until June, 2013. 13. The assertion made by the tenant was denied by Sri Shiv Kumar Gupta who has appeared as witness on behalf of the plaintiff in categorical terms that no amount was paid, otherwise the plaintiff-Vivek Kumar Gupta would have informed him about the same. The tenant could not prove the allegation/assertion made by him. 14. Apart from that, learned counsel for the respondent has highlighted the fact that once the relationship of landlord and tenant was not cordial, after the tenant did not vacate the flat in question given to him on rent pursuant to the agreement dated 14.7.2005 and the agreement dated 19.12.2010 which took place in panchayat, there was no occasion for paying such huge amount in cash to the plaintiff-Vivek Gupta on 6.7.2012 and 16.6.2012 without obtaining any receipt for the same. The argument has substance and even otherwise from perusal of record, I do not find any legal infirmity in the findings so recorded by the Court below on this issue and the same is not perverse so as to warrant interference by this Court in revision. 15. Insofar as the question that the suit for the possession of immovable property was not maintainable in the Court of Judge Small Causes is concerned, the landlord-tenant relationship between the parties is not in dispute and is admitted to both the parties. 16. The Second Schedule of the Act of 1887 provides for "Suits excepted from the cognizance of a Court of Small Causes". 16. The Second Schedule of the Act of 1887 provides for "Suits excepted from the cognizance of a Court of Small Causes". For ready reference, Clause 4 (UP Amendment) of the Second Schedule of the Act is quoted as below: "(4) a suit for the possession of immovable property or for the recovery of an interest in such property, but not including a suit by a lessor for the eviction of a lessee from a building after the determination of his lease, and for the recovery from him of compensation for the use and occupation of that building after such determination of lease. Explanation:- For the purposes of this Article, the expression 'building' means a residential or non-residential roofed structure, and includes any land (including any garden), garages, out-houses, appurtenant to such building, and also includes any fittings and fixtures affixed to the building for the more beneficial enjoyment thereof." (Emphasis supplied) 17. Clause 4 (UP Amendment) of the Second Schedule of the Act has clearly carved out an exception that a suit instituted by a lessor for eviction of a lessee from a building after determination of his lease and for the recovery from him of compensation for the use and occupation of that building after such determination of lease is not exempted from the operation of law. On perusal, I find that the ruling relied on by the learned counsel for the revisionist in support of his arguments are clearly distinguishable. Hence, I do not find any substance in the argument of learned counsel for the revisionist and the same is hereby rejected. 18. All such findings have been appreciated on the basis of documentary and oral evidence on record, which are not perverse in nature and therefore, I do not find any good ground to interfere in the same. 19. A reference may be made in this regard to the Constitutional Bench judgment of the Hon'ble Apex Court in the case of Hindustan Petroleum Corporation Ltd. v. Dilbahar Singh, (2014) 9 SCC 78 according to which no interference is warranted in such findings of fact. 20. In such view of the matter, I do not find any legal infirmity or jurisdictional error in the judgment and order impugned herein and as such, no interference is called for in the impugned judgment and order. 21. Present revision is accordingly dismissed. 22. 20. In such view of the matter, I do not find any legal infirmity or jurisdictional error in the judgment and order impugned herein and as such, no interference is called for in the impugned judgment and order. 21. Present revision is accordingly dismissed. 22. At this stage, learned counsel for the revisionist-tenant prays that some time may be granted for vacating the suit property in dispute. 23. However, having considered the facts and circumstances of the case, subject to filing of an undertaking by the revisionist-tenant before the Court below, it is provided that: (1) The tenant-revisionist shall handover the peaceful possession of the premises in question to the landlady 8 opposite party on or before 16.1.2018. (2) The tenant-revisionist shall file the undertaking before the Court below to the said effect within two weeks from the date of receipt of certified copy of this order; (3) The tenant-revisionist shall pay entire decretal amount within a period of one months from the date of receipt of certified copy of this order; (4) The tenant-revisionist shall pay damages @ Rs. 10,000/- per month by 07th day of every succeeding month and continue to deposit the same in the Court below till 16.1.2018 or till the date he vacates the premises whichever is earlier and the landlady is at liberty to withdraw the said amount; (5) In the undertaking the tenant-revisionist shall also state that he will not create any interest in favour of the third party in the premises in dispute; (6) Subject to filing of the said undertaking, the tenant-revisionist shall not be evicted from the premises in question till the aforesaid period; (7) It is made clear that in case of default of any of the conditions mentioned herein-above, the protection granted by this Court shall stand vacated automatically. (8) In case the suit property is not vacated as per the undertaking given by the tenant-revisionist, he shall also be liable for contempt.