Punjab-Haryana High Court
Darshan Singh Sethi vs Chander Prabha on 18 February, 2005
Equivalent citations: (2005)140PLR126
Author: Hemant Gupta
Bench: Hemant Gupta
JUDGMENT Hemant Gupta, J.
1. The petitioner is aggrieved against the order of ejectment passed by the learned Appellate Authority on the ground that the premises in dispute is required for bona fide use and occupation by the respondent.
2. The respondent sought ejectment of the petitioner on the ground that she requires the shop in question for her own use and occupation to start the profession of beauty parlour in the shop in question as she has done beautician course and her children are now grown up.
3. It was the stand of the petitioner in the written statement that the landlady is having enough accommodation in the residential house and in fact has also given other rooms to a doctor for treatment of patients temporarily. It was also alleged that the husband of the landlady is also running business under the name and style of National Sales General Supplies, therefore, the ejectment has been sought by the landlady just to get vacated the shop in dispute.
4. The learned trial Court dismissed the ejectment petition but the Appellate Authority accepted the appeal and passed an order of ejectment.
5. The learned counsel for the petitioner has vehemently argued that the present ejectment petition is a third ejectment petition filed earlier in the year 1989 and 1995. Such ejectment petitions were filed after purchase of the property by the landlady in the year 1988. The said contention of the petitioner is not tenable in law. Earlier ejectment petitions filed in the year 1989 and 1995 were not on the ground of bona fide personal use and occupation of the landlady, In fact, prior to judgment of Hon'ble Supreme Court in Harbilas Rai Bansal v. State of Punjab, (1996-1)112 P.L.R. 227, the right to evict a tenant from a non-residential building was not available. The respondents has sought ejectment in the year 1997 on the ground that now her children have grown up and that she has done beautician course and therefore, she intends to start her own business for which there is great demand in the market. Therefore, earlier ejectment petitions have no bearing on the merits of the present petition.
6. It is argued that the landlady has not appeared in the witness box herself instead her attorney has appeared who has deposed that the premises were purchased by his wife for doing the work of beauty parlour and at that time the petitioner was tenant in the shop. It is argued that the bona Side personal requirement is required to be proved by the landlady herself keeping in view the facts which are in her personal knowledge. Having failed to examine herself, the respondent cannot be said to prove the fact that the premises were required for her bona fide use and occupation. It is further argued that in fact there is no reason as to why the power of attorney has been executed to explain the non-examination of landlady herself. The argument raised by the learned counsel for the petitioner is not tenable in law. The husband of the landlady has appeared on the basis of power of attorney Ex.AW2/A. The said attorney authorises Om Parkash husband of the respondents to appear as a witness in the present case. The question whether a party is required to be examined himself or statement of his a attorney can be treated as the statement of the principle came up for court for consideration before this Court in Darshan Lal v. Joginder Pal, R.S.A. No. 1446 of 2002, decided on 19.5.2002. The judgment relied upon by the petitioner reported as Ram Parsad v. Hari Narain and Ors., A.I.R. 1998 Rajasthan 185 was considered. Reliance was placed upon a judgment of Hon'ble Supreme Court in T.C. Mittal and Anr. v. District and Sessions Judge, Thiruvanthapuram, A.I.R. 1999 Supreme Court 1385 which discussed the scope of power of attorney holder. The Court also considered another judgment reported in P. Punnaiah and Ors. v. Jaypore Sugar Co. Ltd. and Ors., A.I.R. 1994 S.C. 2258 to hold that whatever a person could do himself, he can do through his agent, except certain functions which may be personal in nature. It was held to the following effect:
"The Hon'ble Supreme Court has concluded that the normal rule is that whatever a person could do himself, he can do through his agent except certain functions which may be personal in nature or otherwise do not admit of such delegation. Therefore, the attorney having been authorised by the principal to appear as a witness could depose on behalf of the plaintiff in respect of the issues raised in the suit".
7. In view of the principle of law laid down in the said judgment I do not find that any adverse inference can be raised against the landlady for not examining herself personally but appearing through her attorney.
8. The argument that the landlord does not require the premises for her bonafide use and occupation is again devoid of merit. It is argued that the landlady is in possession of the shops which have been let out and in fact one of the shops is in possession of the husband of the landlady. It is further argued that the landlady as co-owner of the said house is deemed to be in possession of every part of such property until and unless the property is partitioned, and therefore, the landlady has sufficient alternate accommodation available with her. Reliance was placed under Kempaiah v. Lingaiah and Ors., (2001)7 S.C.C. 718 and Govind v. Dr. Jeet Singh, A.I.R. 1988 S.C. 365.
9. Whether the premises are bona fide required for personal use and occupation by the landlady is a question of fact in each case. The landlord has a choice to seek eviction from any one of the tenant. It is not disputed that the landlady is qualified beautician and that her children has since grown up. Therefore, the stand of the respondent that she requires the premises to carry the business of beauty parlour in the shop in dispute cannot be said to be a case of mere wish and a desire. In fact in Sarla Ahuja v. United India Insurance Company Ltd., 1998(2) R.C.R. 533 it has been held that it is not for the tenant to dictate terms of the landlord as to how he can adjust himself without getting possession of the tenanted premises.
10. Therefore, I do not find any error in the findings recorded by the first Appellate Court finding that the premises in dispute are required for bona fide use and occupation by the respondent. I do not find any patent illegality or material irregularity in the order passed by the learned Appellate Court warranting interference by this Court in revisional jurisdiction.