Punjab-Haryana High Court
M/S Sant Footwear Pvt. Ltd. And Another vs Daya Bindra on 19 September, 2013
Author: Rakesh Kumar Garg
Bench: Rakesh Kumar Garg
IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH
Civil Revision No.3516 of 2013 (O&M)
Date of decision: 19th September, 2013
M/s Sant Footwear Pvt. Ltd. and another
Petitioners
Versus
Daya Bindra
Respondent
CORAM: HON'BLE MR. JUSTICE RAKESH KUMAR GARG
1. Whether Reporters of Local Newspapers may be allowed
to see the judgment?
2. Whether to be referred to the Reporters or not?
3. Whether the judgment should be reported in the Digest?
Present: Mr. Ashok Aggarwal, Sr. Advocate with
Mr. Piyush Kant Jain, Advocate for the petitioners.
Mr. M.L. Sarin, Sr. Advocate with
Ms. Hemani Sarin, Advocate for the respondent.
RAKESH KUMAR GARG, J.
This is tenant's revision petition challenging the order dated 15.10.2011 of the Rent Controller, Ludhiana whereby his eviction has been ordered from the demised premises on the ground of personal bonafide need of the respondent-landlady; and further judgment of the Appellate Authority dated 30.03.2013 whereby his appeal against the aforesaid order of eviction has been dismissed. Singh Rattan Pal 2013.09.19 16:07 I attest to the accuracy and integrity of this document High Court, Chandigarh Civil Revision No.3516 of 2013 (O&M) 2
The respondent-landlady filed the petition, through her attorney-Mandeep Singh Bindra, for eviction of the petitioner from the demised premises pleading her personal necessity as under:
"That the petitioner bonafidely requires the demised premises for her own use and occupation and for the use and occupation of her grandson Sh.Mandeep Singh Bindra and her grand daughter-in-law Smt. Amrita Bindra. S. Mandeep Singh Bindra, grandson of the petitioner is B.Tech. in Agriculture Engineering and has also done Masters in International Business (M.I.B.) from University of Delhi. He is presently working as a Marketing Manager in M/s Cargill India Pvt. Ltd. and is presently posted at Bangalore. Smt. Amrita Bindra wife of S. Mandeep Singh Bindra and grand daughter-in-law of the petitioner is a M.B.A. The petitioner along with her son Sh.Jasbir Singh Bindra, Advocate and his wife Smt.Poonam Bindra is residing in Ludhiana in her home known as GULREZ, House No.130, Rani Jhansi Road, Civil Lines, Ludhiana. The son of the petitioner Sh.Jasbir Singh Bindra is a practicing Advocate. The grandson of the petitioner, Sh.Mandeep Singh Bindra has already put in over 10 years in the job and has got sufficient experience in food related business. M/s Cargill India Pvt. Ltd., the company where he is presently working, is dealing in mainly Food Products in RAW and processed form. Sh. Mandeep Singh Bindra has got two children and now wants to settle down in Ludhiana, his native place. Sh. Mandeep Singh Bindra and his wife Smt.Amrita Bindra have no commercial place of their own to start their business and as such the petitioner requires the demised shop for the use and occupation of her grandson S. Mandeep Singh Bindra and her grand daughter-in-law Smt. Amrita Bindra who has Singh Rattan Pal 2013.09.19 16:07 I attest to the accuracy and integrity of this document High Court, Chandigarh Civil Revision No.3516 of 2013 (O&M) 3 also sufficient experience in Marketing as having worked at several prestigious companies and organization in the country. Ludhiana is the native place of the petitioner. Sh.Mandeep Singh Bindra and his wife Smt.Amrita Bindra will start a Food related business and the demised shop is most suitable for the said business as being situated in the Centre of Commercial hub of Ludhiana. The petitioner will also assist her grandson and her grand daughter-in-law in every manner in settling their business. The petitioner, her son S.Jasbir Singh Bindra, Advocate and her grandson S.Mandeep Singh Bindra and his wife Smt.Amrita Bindra have sufficient resources and funds required for the said business. The petitioner does not own or possess any other non-residential building anywhere in the country and least to say within the urban area of Ludhiana nor has even vacated any non-residential building after the coming into force of the East Punjab Urban Rent Restriction Act, Act-III of 1949. Similarly, Sh. Mandeep Singh Bindra and his wife Smt.Amrita Bindra also do not own or possess any other non-residential building within the urban area of Ludhiana nor have vacated any non-residential building after the coming into force of the East Punjab Urban Rent Restriction Act, Act-III of 1949."
Further reference be also made to paragraph No.4 of the ejectment application pleading that the petition is being filed through attorney, which is as follows:
"That the petitioner is in perfect mental and physical health and has alert faculties but because of her age and seniority, she has appointed and authorized her Grand Son namely Sh.Mandeep Singh Bindra to conduct, pursue and follow up and defend day to day legal proceedings in Singh Rattan Pal 2013.09.19 16:07 I attest to the accuracy and integrity of this document High Court, Chandigarh Civil Revision No.3516 of 2013 (O&M) 4 any Court of having Civil and Criminal and Revenue jurisdiction before any civic authorities or any Board or Tribunal."
Upon notice, the petitioner-tenant appeared through counsel and filed written statement raising various preliminary objections including that the attorney has no locus standi to file the petition and a wrong site plan has been filed. Shops No.B-1 and B-2 have been merged to form one individual unit, whereas partial eviction is sought from shop No.B-1 on the upper ground floor forming part of the Surya Kiran building, as shown red in the site plan, and the same is bad in law. It was further submitted in the written statement that alleged need of the respondent-landlady does not exist at all. She is suffering from serious ailments and is completely bed-ridden. Mandeep Singh Bindra and Amrita Bindra are not residing as family members of the landlady and they are not dependent upon her, rather they are well settled outside Ludhiana. The need of the landlord under the East Punjab Urban Rent Restriction Act, 1949 (hereinafter referred to as, 'the Rent Act') does not include the need of grand-son/grand-daughter. The petition has been filed to enhance the rent. Rest of the averments made in the petition were also denied and ultimately, prayer for dismissal of the ejectment petition was made.
Respondent-landlady filed rejoinder to the written statement of the petitioner while controverting the allegations made in the written statement and reiterating the averments made in the eviction petition as correct.
Singh Rattan Pal 2013.09.19 16:07 I attest to the accuracy and integrity of this document High Court, Chandigarh Civil Revision No.3516 of 2013 (O&M) 5
On the pleadings of the parties, following issues were framed by the Rent Controller:
"1. Whether the petitioner is liable for ejectment of the respondent? OPP
2. Whether the property in dispute is bonafide required by the petitioner for her use and occupation? OPP
3. Relief."
In order to prove the case, Mandeep Singh Bindra, attorney of the respondent-landlady, appeared into the witness box as PW-1 and deposed that he has been appointed attorney by his grand-mother Smt.Daya Bindra (respondent-landlady). He also proved copy of the Power of Attorney dated 17.08.2009 as Ex.A1. He further proved the site plan (Ex.A2) and the memorandum of tenancy recorded between the parties dated 08.12.1995 as Ex.A3. He also proved the terms as settled vide Memorandum of Understanding executed on 20.01.2004 (Ex.A5). He further deposed with respect to his need of the premises in dispute and the other necessary ingredients of Section 13(3)(a)(i)(a),
(b) & (c) of the Rent Act stating that they do not have any other residential building within the urban area of Ludhiana nor have they vacated any such building after coming into force the Rent Act. He further deposed to occupy the demised premises as soon as the same are vacated and start his business and that he and his grand-mother will not let-out the property to any one.
On the other hand, the petitioner-tenant, while appearing as RW-1, admitted that he had taken property No.B-1 and B-2 on rent Singh Rattan Pal 2013.09.19 16:07 I attest to the accuracy and integrity of this document High Court, Chandigarh Civil Revision No.3516 of 2013 (O&M) 6 from the respondent-landlady and her daughter, and thereafter, the terms of tenancy were reduced into memorandum of rent note (Ex.A3). However, it was stated that Mandeep Singh Bindra had no locus standi to sign and verify the present petition. He never resided in Ludhiana with an intention to reside in Ludhiana at any time. He never visited the property in dispute. There was no need nor any requirement either of the respondent-landlady or Mandeep Singh Bindra or Amrita Bindra with respect to the demised premises. The alleged need does not exist at all. The respondent-landlady was in the late evening of her life. She was neither in physical nor even in mental state to use and occupy the demised premises. Mandeep Singh Bindra, his wife and children are well settled in their respective vocations outside Ludhiana and the present petition has been filed only to pressurize the petitioner-tenant to increase the rent.
After hearing the arguments and considering the evidence led by the respective parties, the Rent Controller, Ludhiana vide impugned order dated 15.10.2011 allowed the ejectment petition and the tenant was directed to hand over vacant possession of the demised shop to the respondent-landlady within two months' time.
The Rent Controller, while ordering eviction of the petitioner-tenant from the demised premises vide impugned order dated 15.10.2011, held that relationship of landlord and tenant between the parties is not disputed and the need of the respondent-landlady stands proved. There was no dispute with regard to identity of the demised premises and the respondent-landlady was competent to seek Singh Rattan Pal 2013.09.19 16:07 I attest to the accuracy and integrity of this document High Court, Chandigarh Civil Revision No.3516 of 2013 (O&M) 7 eviction of the petitioner-tenant for her need. The Rent Controller further found that Mandeep Singh Bindra, being grand-son of the respondent-landlady, knew the facts of the case and the demised property and was competent to appear as a witness on behalf of the landlady being a part of her family. The relevant observations of the Rent Controller in this regard are as under:
"This Court is of the view that in view of ratio of aforesaid judgment, the petitioner can seek eviction of tenant for the occupation of herself and those family members who are related to her and the person who is dependent upon her, if the requirement is of a person other than herself, the Court has to see whether requirement of such person can be considered requirement of the landlord and whether there is close interrelation between that person and landlady. This Court is of the view that as Mandeep Singh Bindra is grand son of petitioner, he is closely related with the petitioner. It is natural phenomena that every person wants to settle his sons or grand son in his life. Mandeep Singh Bindra is working at Bangalore. If the petitioner wants to settle him in Ludhiana it can not be said that Mandeep Singh Bindra is not part of her joint Hindu Family of Mrs.Daya Bindra. It is the petitioner who has to decide whether her grand son is part of her joint family or not. She has given attorney in favour of her grand son, this Court is of the view that Mandeep Singh Bindra is part of her joint Hindu Family."
Feeling aggrieved from the aforesaid order of eviction, the petitioner-tenant filed an appeal before the Appellate Authority, Ludhiana which was also dismissed vide impugned judgment dated Singh Rattan Pal 2013.09.19 16:07 I attest to the accuracy and integrity of this document High Court, Chandigarh Civil Revision No.3516 of 2013 (O&M) 8 30.03.2013. The relevant paragraphs of the aforesaid judgment read thus:
"13. Adverting to the facts of the instant case, from the perusal of the pleadings set up by the landlady coupled with the impugned order passed by the learned Rent Controller, it is not in dispute that the tenanted were let out to the appellant/tenant in the year 1995. The case of bonafide requirements as pleaded by the respondent/landlady was that she and her grandson and wife of her grandson were interested to set up their Food related business and as the landlady has decided to settle her grandson in the tenanted premises, landlady filed the eviction petition through her grandson on the ground of bonafide requirement. The appellant/tenant contested the eviction proceedings by categorically denying that the respondent/landlady had not any bonafide requirement for use and occupation for her grandson for starting a Food related business in the tenanted premises. The learned Rent Controller had allowed the application for eviction inter-alia holding that the respondent/landlady has successfully proved her bonafide requirement of the tenanted premises. The foremost nub and essence of arguments of the learned counsel for the appellant/tenant is that the bonafide need of the respondent/landlady was not proved as she herself has not entered into the witness box. In support of his submissions, he has placed reliance upon numbers of judicial verdicts. In the light of the arguments raised, it is to be seen, in the instant case, whether in a suit for eviction preferred by landlady on the ground of bonafide need, is necessary for her to enter the witness box and if she has not entered into the witness box, but she tried to prove the case by examining her Singh Rattan Pal 2013.09.19 16:07 I attest to the accuracy and integrity of this document High Court, Chandigarh Civil Revision No.3516 of 2013 (O&M) 9 attorney holder (her real grandson in the present case), whether such evidence is sufficient and is legally acceptable to prove the bonafide need, even if it is treated that the attorney holder has not deposed as an agent of the landlady but as a witness of the landlady. True, the Hon'ble Supreme Court in Man Kaur (dead) by LR's Vs. Hartar Singh Sangha (Supra) has held that the power of attorney holder can not depose in place and instead of principle, it is required to be seen as to whether only on this ground, in the instant case, the landlady can be non- suited or the evidence adduced by the attorney holder, who is none else the real grandson of the landlady, who will be treated as a witness of the landlady, rather an agent of the landlady, can be accepted. This Court is of the opinion that even Mandeep Singh, attorney holder, is not treated as an agent of landlady, he still remains a witness of the landlady and being her real grandson having entered the witness box to support the landlady plea of bonafide need, thus, the ground for eviction under the bonafide need is required to be examined on the basis of evidence available on the record. AW-1 Mandeep Singh has deposed that her grandmother bonafidely requires the tenanted premises for her own use and occupation and also for the use and occupation of the attorney holder. He also deposed that neither the landlady nor he or his wife has commercial place for their own to start their business and as such, they required the tenanted premises for their use and occupation. Undisputedly, grandson of the landlady before filing the petition for eviction was doing job at Bangalore, however it is also not in dispute that the parents of the grandson of the landlady are settled at Ludhiana. In the instant petition, the landlady deposed through her attorney that she and her other family Singh Rattan Pal 2013.09.19 16:07 I attest to the accuracy and integrity of this document High Court, Chandigarh Civil Revision No.3516 of 2013 (O&M) 10 members has every intention to start their own business in the tenanted premises. It is well settled that when the landlord shows a prima facie case, it is open to the Rent Controller to draw a presumption that the requirement of the landlord is bonafide. In order to resist the claim of the landlady, the appellant/tenant came with a plea that the landlady nowhere pleaded that her grandson and his wife were residing as family members with her or were dependent upon landlady. It is true that it is the case of the landlady that her grandson alongwith his wife was doing job at Bangalore before filing the petition. But, it is also true that there is no evidence brought on record by the appellant/tenant that the landlady had any other accommodation or has vacated similar building after the commencement of the Act in the same area. Thus, the question is only as to whether the landlady need is bonafide or not. As stated above, the appellant/tenant has raised the issue that the grandson is not a family member of a landlady as he and his family is not dependent upon the landlady and the setting up of an independent business by the grandson would not be covered by S.13(3)(a)(ii) as in such a case it cannot be said that the landlady requires the rented shop for her own use. In the alternative, it was pleaded by the appellant-tenant that even if for the argument's sake it may be accepted that the need of a grandson, would be the requirement of the landlady herself, in the instant case, there being neither any pleading nor any evidence to substantiate that the grandson was dependent and living jointly with the landlady, the setting up of business by the grandson cannot, by any stretch of reasoning, be taken as the requirement of landlady. In nutshell, the plea of the appellant is that a grand son cannot be said to be a Singh Rattan Pal 2013.09.19 16:07 I attest to the accuracy and integrity of this document High Court, Chandigarh Civil Revision No.3516 of 2013 (O&M) 11 member of the family of the grand mother-landlady, particularly when it is not the averment that the grand son is financially dependent upon the landlady. At first blush the arguments of learned counsel for the appellant-tenant appear very attractive but for the cogent reasons, this Court has not been able to persuade itself to find any force in the plea raised. The Hon'ble Punjab and Haryana High Court in Civil Revision No.4480 of 2006, decided on May 11, 2010, (Roop Chand vs. Karneesh Kumar) has held as follows:
'There is no warrant for the proposition that a grand son has necessarily to be averred and proved to be financial dependent upon the paternal grand father before the latter can raise a claim for ejectment of tenant from the tenanted premises for use by the latter. In fact, the question of financial dependence of a grand son upon the paternal grand father would appear to be completely foreign to the issue. What, to my mind, would be relevant for purpose of consideration in such like eventuality would be whether the projected need is bonafide or a mere wish of the landlord aimed at obtaining vacation of the tenanted premises. Being from the same line of generation otherwise, a grand son can validly raise a claim of the indicated category and there is nothing whatsoever wrong in a grand father raising a plea that he requires the tenanted premises for occupation by his grand son.'
14. The observations in above referred judgment is the complete answer to the problem in hand. The plea Singh Rattan Pal 2013.09.19 16:07 I attest to the accuracy and integrity of this document High Court, Chandigarh Civil Revision No.3516 of 2013 (O&M) 12 raised by the respondent-landlady is supported by the statement of general attorney and the needy grandson Mandeep Singh Bindra himself, made a categorical deposition that the tenanted premises are required for running of business by them. A Court cannot impose its perception of the state-of-affairs and the parameters of the necessity so pleaded. A landlady's perception of her personal necessity, namely the nature and the extent thereof, the premises to be occupied, in the absence of any evidence to the contrary, accepted as bonafide. The landlady is an aged woman and she cannot run the proposed business alone. In the absence of any circumstances that would enable this Court to infer any mala fides on the part of the landlady, her statement through her attorney that she requires the tenanted premises has to be accepted as true. Above all, it is now well settled proposition of law that the landlord is best judge in regard to his bonafide need and such need has to be seen from the angel of the landlady and not from the view point of the tenant. The opinion of the tenant cannot be imported in it."
Still not satisfied, the petitioner-tenant has approached this Court by filing the instant revision petition.
Learned senior Advocate, appearing on behalf of the petitioner-tenant, has vehemently argued that both the courts below have committed material illegality and acted absolutely arbitrarily and were not being able to appreciate that General Power of Attorney had no locus-standi to set up the alleged need or requirement qua the property in question, as Smt.Daya Bindra (respondent-landlady) herself Singh Rattan Pal 2013.09.19 16:07 I attest to the accuracy and integrity of this document High Court, Chandigarh Civil Revision No.3516 of 2013 (O&M) 13 was neither the signatory to the petition nor did she appear before the Court to depose therein. The only document forthcoming from Smt.Daya Bindra was a Power of Attorney, which was executed simply four days prior to the filing of the petition and contained no clause or recital regarding alleged need or requirement of Mandeep Singh Bindra or Amrita Bindra to set up the alleged business in the property in question.
Elaborating his arguments further, learned counsel for the petitioner has vehemently argued that the landlady had not appeared into the witness box and by not offering herself to be cross-examined by the petitioner-tenant, the courts below ought to have drawn an adverse inference against her to the effect that the case set up in the petition was not true and correct, as Mandeep Singh Bindra was not at all competent to depose on behalf of the respondent-landlady. Learned counsel has further argued that in 'Man Kaur (Dead) by LRs v. Hartar Singh Sangha' 2011(1) RCR (Civil) 189, Hon'ble the Supreme Court has clearly held that in the cases of personal necessity, the evidence ought to be led by the landlord himself inasmuch as the plea and the proof thereof relates to the state of mind of the landlord concerned. Mandeep Singh Bindra, on the face of his statement, did not even fall within the exceptions as culled out by the Hon'ble Apex Court in the aforesaid decision, as he did not manage the affairs of Smt.Daya Bindra at all and his statement as a witness for the landlady was not sufficient proof of the alleged requirement of the landlady herself, and Singh Rattan Pal 2013.09.19 16:07 I attest to the accuracy and integrity of this document High Court, Chandigarh Civil Revision No.3516 of 2013 (O&M) 14 in the absence of necessary proof, no ejectment could have been ordered at all.
It is further case of the petitioner-tenant that the presumption, which the courts below opted to raise in favour of the respondent-landlady, was not available to the attorney when neither the requirement is of the landlady nor the landlady had come to the Court or even adopted or espoused the alleged requirement of Mandeep Singh Bindra. The presumption could not be raised in favour of the attorney for the alleged need of the attorney which manifestly was self- created as an afterthought.
It is further argument of the petitioner that even for the need of the grand-son to be proved as need of the landlady, it needs to be proved on record that he was dependent upon the landlady or the landlady was dependent upon him, and the instant petition having not been supported by the respondent-landlady herself by stepping into the witness box, has to fail because it is only the landlady who can seek ejectment on the ground of personal necessity of herself or of her family; as in the instant case there was a complete want of plea of living together of the grand-son with the respondent-landlady as her family member and there was nothing to connect the alleged plea of grand- son's requirement with the alleged need of respondent-landlady.
On the basis of aforesaid arguments, it has been stated that the impugned order of eviction passed by the Rent Controller and the judgment of the Appellate Authority are liable to be set aside. Singh Rattan Pal 2013.09.19 16:07 I attest to the accuracy and integrity of this document High Court, Chandigarh Civil Revision No.3516 of 2013 (O&M) 15
On the other hand, learned senior counsel appearing on behalf of the respondent-landlady, has supported the impugned orders of eviction submitting that Mandeep Singh Bindra is grand-son of the respondent-landlady and is closely related to her. It is but natural that every person wants to settle his sons/grand-sons in his life. Mandeep Singh Bindra is working at Bangalore and he wants to settle at Ludhiana. It cannot be said that Mandeep Singh Bindra is not a part of the family of the respondent-landlady. The Power of Attorney is the real grand-son of the respondent-landlady and he had appeared in the Court and supported the case.
It has been further argued that non-appearance of the respondent-landlady to substantiate her version would not be fatal as most material witness, i.e. Mandeep Singh Bindra, grand-son of the respondent-landlady, who is also having attorney duly executed by the respondent-landlady in his favour, and for whose personal necessity eviction of the petitioner-tenant from the shop in dispute has been sought; has been examined.
Learned counsel for the respondent-landlady has further argued that grand-son of the respondent-landlady will also fall within the definition of 'family members' and the contention that there was no plea of dependency or living together of the grand-son as family member of the respondent-landlady, is unsustainable. It was also argued that being owner of the shop in question, the respondent- landlady is the best judge of her needs and the petitioner-tenant cannot dictate terms to her.
Singh Rattan Pal 2013.09.19 16:07 I attest to the accuracy and integrity of this document High Court, Chandigarh Civil Revision No.3516 of 2013 (O&M) 16
While concluding the arguments, learned counsel for the respondent-landlady submitted that the need of the respondent- landlady also includes the need of her other family members and the benefits of the Rent Act would also be extended to her related members, and thus, the instant petition has no merit and the same deserves to be dismissed.
I have heard learned counsel for the parties and perused the impugned order of the Authorities below as well as the other documents placed before this Court.
From the respective submissions made by learned counsel for the parties, it may be noticed that the ground of personal necessity of the respondent-landlady has been challenged basically on the ground that the landlady had not appeared in support of her plea and her attorney-Mandeep Singh Bindra was not at all competent to depose on her behalf as according to learned counsel for the petitioner, in the case of personal necessity the evidence ought to be led by the landlord himself because the plea and the proof thereof relates to the state of mind of the landlord concerned which involves the personal knowledge, and in the instant case though the attorney-holder has singed and instituted the instant petition but he had no personal knowledge of the need of respondent-landlady as he had never resided with her and never visited the property in dispute. Moreover, the said attorney cannot be considered as a member of family of the landlady, as according to the averments the grand-son is neither a family member nor financially dependent upon the landlady, and thus, it cannot be said Singh Rattan Pal 2013.09.19 16:07 I attest to the accuracy and integrity of this document High Court, Chandigarh Civil Revision No.3516 of 2013 (O&M) 17 that the respondent-landlady requires the tenanted shop for her own use. According to the petitioner, it is well settled that where a party to the suit does not appear in the witness box and state his own case on oath and does not offer himself to be cross-examined by the other side, a presumption would arise that the case set up by him is not correct.
In the light of the arguments raised, it is to be seen in the instant case whether in an eviction petition preferred by the landlady on the ground of bonafide need, it was necessary for her to enter into the witness box and if she has not entered into the witness box but has tried to prove the case by examining her attorney-holder (her real grand-son in the instant case), whether such evidence is sufficient and legally acceptable to prove the bonafide need and whether the attorney-holder was competent to appear on behalf of the landlady to prove her case of bonafide need of the premises in dispute.
At this stage, it is useful to refer to the provisions of Order III Rules 1 and 2 CPC, which read thus;
"1. Appearances, etc., may be in person, by recognized agent or by pleader Any appearance, application or act in or to any Court, required or authorised by law to be made or done by a party in such court, may , except where otherwise expressly provided by any law for the time being in force, be made or done by the party in person, or by his recognised agent, or by a pleader appearing, applying or acting, as the case may be, on his behalf:
PROVIDED that any such appearance shall, if the Court so directs, be made by the party in person.Singh Rattan Pal 2013.09.19 16:07 I attest to the accuracy and integrity of this document High Court, Chandigarh Civil Revision No.3516 of 2013 (O&M) 18
2. Recognised Agents The recognized agents of parties by whom such appearance, applications and acts may be made or done are--
(a) persons holding powers of attorney, authorizing them to make and do such appearances, applications and acts on behalf of such parties;
(b) persons carrying on trade or business for and in the names of parties not resident within the local limits of the jurisdiction of the court within which limits the appearance, application or act is made or done, in matters connected with such trade or business only, where no other agent is expressly authorized to make and do such appearances, applications and acts."
It is also relevant to refer to the Power of Attorney executed by the respondent-landlady in favour of her grandson Mandeep Singh Bindra, which reads as under:
"AND WHEREAS I bonafidely require the said shop for the use and occupation of myself and my family and as such it has become necessary to institute legal proceedings in the Court of Rent Controller Ludhiana to evict the tenant M/s Sant Footwear Pvt. Ltd. from my said shop. Due to my old age, I cannot attend all day to day proceedings in the Court and as such I appoint my grandson Mandeep Singh Bindra S/o Jasbir Singh Bindra (Advocate) as my Attorney to do all acts, deeds and things in my name and on my behalf.
NOW THIS POWER OF ATTORNEY WITNESSETH AS UNDER Singh Rattan Pal 2013.09.19 16:07 I attest to the accuracy and integrity of this document High Court, Chandigarh Civil Revision No.3516 of 2013 (O&M) 19 That my said Attorney is competent to do all acts, deeds and things as follows:
1. To institute eviction proceedings against the tenant M/s Sant Footwear Pvt. Ltd. in the Court of Rent Controller Ludhiana in my name and on my behalf.
2. To engage counsel, file application, swear affidavits.
3. To sign and verify pleadings on oath or otherwise.
4. To make statements in Court on oath or otherwise.
5. To lead evidence, file documents, summon witnesses, deposit deed money and other charges as required, withdraw undisbursed deed money.
6. To file any appeal, revision or review against the judgment or interim order in the appropriate Courts having original, appellate or revisional jurisdiction upto the Hon'ble Supreme Court of India and to take all necessary steps for prosecuting or defending any such appeal, revision or review.
7. To file execution of any decree which may be passed in my favour, to obtain warrants of possession and to take possession of the shop in execution of the decree.
8. To file any separate case in my name and on my behalf and further to take all steps for prosecuting any such case upto the highest Court in India.Singh Rattan Pal 2013.09.19 16:07 I attest to the accuracy and integrity of this document High Court, Chandigarh Civil Revision No.3516 of 2013 (O&M) 20
9. To enter into settlement with the tenant M/s Sant Footwear Pvt. Ltd. on such terms as my Attorney thinks fit.
10. To take possession of the tenancy premises i.e. the shop from the tenant on my behalf on the tenant's vacating the said premises and give it on rent to any new tenant or entering into any new partnership.
11. To settle the arrears of rent due from the said tenant and to give a receipt thereof after receiving all arrears.
12. To represent myself all matters relating to Municipal Corporation Building Association, Centre or State Govt. Authorities or their department.
13. Generally to do all acts and deeds as my said Attorney may deem fit for which no specific provision is made in these presents.
I hereby confirm and declare that all such acts which may be done by my said Attorney shall remain binding upon me as if the same have been done by me myself been present and done the same."
Thus, a perusal of the Power of Attorney executed in favour of Mandeep Singh Bindra would show that the respondent-landlady has clearly mentioned that there is a bonafide requirement of the demised premises for use and occupation of herself and her family, and therefore, it has become necessary to institute legal proceedings and because she was unable to attend herself she was appointing her grandson Mandeep Singh Bindra son of Jasbir Singh Bindra as her lawful attorney to do all acts, deeds and things in her name and on her Singh Rattan Pal 2013.09.19 16:07 I attest to the accuracy and integrity of this document High Court, Chandigarh Civil Revision No.3516 of 2013 (O&M) 21 behalf which also includes to make statements in the Court on oath or otherwise, sign pleadings and lead evidence.
However, on the basis of judgment of Hon'ble the Supreme Court in 'Janki Vashdeo Bhojwani v. Indusind Bank Ltd.' 2005(2) SCC 217, it has been argued on behalf of the petitioner-tenant that Order III Rules 1 and 2 CPC empowers the holder of Power of Attorney to act on behalf of the principal, which would not include deposing in place and instead of the principal, though such an attorney can appear as a witness in his personal capacity.
Janki Vashdeo Bhojwani's case (supra) would not be of much assistance to the petitioners. What is held in this case is that the attorney cannot be allowed to appear and depose as a witness on behalf of the principal in the matters of his personal knowledge and that he can appear as a witness only in his own capacity to depose with regard to the acts done by him on behalf of the principal. However, the ratio of law laid down in this judgment would not apply to the facts and circumstances of the present case as the need of the respondent- landlady was well within the personal knowledge of her grandson, who had appeared to depose as an attorney.
The law has been further summarized by the Hon'ble Apex Court in the case of 'Man Kaur (Dead) by LRs v. Hartar Singh Sangha' 2011(1) RCR (Civil) 189 as under:
"(a) An attorney holder who has signed the plaint and instituted the suit, but has no personal knowledge of the transaction can only give formal evidence about Singh Rattan Pal 2013.09.19 16:07 I attest to the accuracy and integrity of this document High Court, Chandigarh Civil Revision No.3516 of 2013 (O&M) 22 the validity of the power of attorney and the filing of the suit.
(b) If the attorney holder has done any act or handled any transactions, in pursuance of the power of attorney granted by the principal, he may be examined as a witness to prove those acts or transactions. If the attorney holder alone has personal knowledge of such acts and transactions and not the principal, the attorney holder shall be examined, if those acts and transactions have to be proved.
(c) The attorney holder cannot depose or give evidence in place of his principal for the acts done by the principal or transactions or dealings of the principal, of which principal alone has personal knowledge.
(d) Where the principal at no point of time had personally handled or dealt with or participated in the transaction and has no personal knowledge of the transaction, and where the entire transaction has been handled by an attorney holder, necessarily the attorney holder alone can give evidence in regard to the transaction. This frequently happens in case of principals carrying on business through authorized managers/attorney holders or persons residing abroad managing their affairs through their attorney holders.
(e) Where the entire transaction has been conducted through a particular attorney holder, the principal has to examine that attorney holder to prove the transaction, and not a different or subsequent attorney holder.
(f) Where different attorney holders had dealt with the matter at different stages of the transaction, if Singh Rattan Pal 2013.09.19 16:07 I attest to the accuracy and integrity of this document High Court, Chandigarh Civil Revision No.3516 of 2013 (O&M) 23 evidence has to be led as to what transpired at those different stages, all the attorney holders will have to be examined.
(g) Where the law requires or contemplated the plaintiff or other party to a proceeding, to establish or prove something with reference to his 'state of mind' or 'conduct', normally the person concerned alone has to give evidence and not an attorney holder. A landlord who seeks eviction of his tenant, on the ground of his 'bona fide' need and a purchaser seeking specific performance who has to show his 'readiness and willingness' fall under this category.
There is however a recognized exception to this requirement. Where all the affairs of a party are completely managed, transacted and looked after by an attorney (who may happen to be a close family member), it may be possible to accept the evidence of such attorney even with reference to bona fides or 'readiness and willingness'. Examples of such attorney holders are a husband/wife exclusively managing the affairs of his/her spouse, a son/daughter exclusively managing the affairs of an old and infirm parent, a father/mother exclusively managing the affairs of a son/daughter living abroad."
From a perusal of the aforesaid principles, as culled out by Hon'ble the Apex Court, it is clearly made out that where landlord seeks eviction of his tenant on the ground of his bonafide need, normally the landlord himself has to give evidence and not an attorney-holder. However, there is an exception to the aforesaid requirement, i.e. where Singh Rattan Pal 2013.09.19 16:07 I attest to the accuracy and integrity of this document High Court, Chandigarh Civil Revision No.3516 of 2013 (O&M) 24 the affairs of a party are completely managed, transacted and looked after by an attorney (who may happen to be a close family member), it is possible to accept the evidence of such attorney even with reference to bonafide need of the landlord/landlady, and if such attorney-holder is a husband/wife exclusively managing the affairs of his/her spouse, a son/daughter exclusively managing the affairs of an old and infirm parent, a father/mother exclusively managing the affairs of a son/daughter living abroad.
On the basis of the aforesaid examples, as set out in clause
(g), learned Senior Advocate appearing on behalf of the petitioner- tenant has made an effort to raise an argument that Mandeep Singh Bindra, attorney-holder of the respondent-landlady, who is her grandson, does not fall within the examples as noticed by Hon'ble the Supreme Court, whose evidence could possibly be accepted with regard to bonafide need of the landlady while acting as attorney.
The argument raised has to be rejected simply on the ground that while summing up the law with regard to the cases wherein an attorney-holder of a landlord could give evidence on behalf of the principal, the Hon'ble Supreme Court has just cited examples of personal and intimate relationship of the attorney with such a landlord and the said list is not exhaustive but inclusive one and thus, where a person is so intricately linked or related to the landlord/landlady and can substantiate the pleading of personal necessity then in such an eventuality merely because landlady did not appear cannot be Singh Rattan Pal 2013.09.19 16:07 I attest to the accuracy and integrity of this document High Court, Chandigarh Civil Revision No.3516 of 2013 (O&M) 25 considered a ground to construe as a fatality to the pleaded case of the landlady.
It is admitted case of the parties that the landlady in the instant case has in fact pleaded her and her family's requirement for the demised premises only for settling the business of her grandson namely Mandeep Singh Bindra, who had appeared to depose on behalf of the respondent-landlady; and thus, there could not have been any other person better than the said grandson who could depose with regard to personal need of the respondent-landlady requiring the demised premises.
It is well settled that landlord can seek eviction of a tenant from the tenanted premises not only for his or her need but even for the need of a closely related person. Reference in this regard can be made to the observations of Hon'ble the Supreme Court in 'Joginder Pal v. Naval Kishore Behal' (2002-2) Vol.CXXXI PLR 625, wherein it has been held that expression "for his own use" would cover the requirement of any person closely connected to the landlord as per the social or socio-religious milieu and practices prevalent in a particular Section of society or a particular region. In short, the requirement of a family member or of a person on whom the landlord is dependent or who is dependent on the landlord is also the requirement of the landlord and the strict view of law governing the personal appearance of the person concerned, who has to depose about the facts in his/her own knowledge, may not apply to such cases. It would be logical to say that any person, who is closely related to the landlord/landlady, would Singh Rattan Pal 2013.09.19 16:07 I attest to the accuracy and integrity of this document High Court, Chandigarh Civil Revision No.3516 of 2013 (O&M) 26 have the same knowledge, and thus, competent to depose about it. The need for personal use would well be within the knowledge and that too in the personal knowledge of such closely related person, and thus, the strict rule of evidence disentitling a person to give derivative evidence through a Power of Attorney may not apply to such cases.
In Joginder Pal's case (supra), Hon'ble the Apex Court has observed that the expression "for his own use" must be assigned a wider, liberal and practical meaning; in the following terms:
"33. Our conclusions are crystalised as under:
(i) the words 'for his own use' as occurring in Section 13(3)(a)(ii) of the East Punjab Urban Rent Restriction Act, 1949 must receive a wide, liberal and useful meaning rather than a strict or narrow construction.
(ii) The expression - landlord requires for 'his own use', is not confined in its meaning to actual physical user by the landlord personally. The requirement not only of the landlord himself but also of the normal 'emanations' of the landlord is included therein. All the cases and circumstances in which actual physical occupation or user by someone else, would amount to occupation or user by the landlord himself, cannot be exhaustively enumerated. It will depend on a variety of factors such as inter-relationship and inter-dependence -
economic or otherwise, between the landlord and such person in the background of social, socio-religious and local customs and Singh Rattan Pal 2013.09.19 16:07 I attest to the accuracy and integrity of this document High Court, Chandigarh Civil Revision No.3516 of 2013 (O&M) 27 obligations of the society or region to which they belong.
(iii) The tests to be applied are: (i) Whether the requirement pleaded and proved may properly be regarded as the landlord's own requirement? and, (ii) Whether on the facts and in the circumstances of a given case actual occupation and user by a person other than the landlord would be deemed by the landlord as 'his own' occupation or user ? The answer would, in its turn, depend on (i) the nature and degree of relationship and/or dependence between the landlord pleading the requirement as 'his own' and the person who would actually use the premises, (ii) the circumstances in which the claim arises and is put forward, and (iii) the intrinsic tenability of the claim. The Court on being satisfied of the reasonability and genuineness of claim as distinguished from a mere ruse to get rid of the tenant, will uphold the landlord's claim.
(iv) While casting its judicial verdict, the Court shall adopt a practical and meaningful approach guided by the realities of life.
(v) In the present case, the requirement of landlord of the suit premises for user as office of his chartered accountant son is the requirement of landlord for his own use within the meaning of Section 13(3)(a)(ii)."
At this stage, it may be useful to notice the judgment dated 26.03.2008 of this Court rendered in Civil Revision No.2001 of 2007 Singh Rattan Pal 2013.09.19 16:07 I attest to the accuracy and integrity of this document High Court, Chandigarh Civil Revision No.3516 of 2013 (O&M) 28 titled as 'Shashi Bala v. Nirmala Rani', the relevant part of which reads thus:
"Ground of personal necessity otherwise has been challenged basically on the ground that the landlady had not appeared in support of her plea. This is co-related with the fact that the petitioner is an old person and may not be able to carry her business at this old and infirm age.
The observations made in the case of Janki Vashdeo Bhojwani (supra) would not be of much assistance to the cause of the petitioner. What is held in this case is that attorney cannot be allowed to appear and depose as a witness on behalf of the principal in the matters of his personal knowledge. It is further noticed in this case that he can appear as a witness only in his own capacity to depose with regard to the acts done by him on behalf of the principal. The ratio of this judgment would not apply to the facts of the present case. The need of the landlady would be well within the personal knowledge of her husband, who had appeared to depose as an attorney. Even otherwise, the requirement of a spouse or other closely related family members to appear as a witness in support of the plea of personal necessity in rent cases is required to be viewed in a slightly different context. It may need a notice that a landlord can seek eviction of a tenant from a tenanted premises not only for his or her own need, but even a need for closely related person has been held to be personal need of a landlord/landlady. Reference in this regard can be made to the observations in the case of Joginder Pal (supra), where it is held that the expression "for his own use" would cover the requirement of any person(s) closely connected to the landlord/landlord as per the social or socio-religious milieu and practices prevalent Singh Rattan Pal 2013.09.19 16:07 I attest to the accuracy and integrity of this document High Court, Chandigarh Civil Revision No.3516 of 2013 (O&M) 29 in a particular section of society or a particular region. In short, the requirement of member of a family of a person in whose or who is dependent is also to be considered as an requirement of a landlady/landlord for her/his use. Accordingly, the strict view of law governing the personal appearance of a person concerned, who has deposed about the facts in his/her own knowledge, may not strictly apply to such cases. It would be logical to say that any person, who is closely related to landlord/landlady would have the same knowledge and, thus, competent to depose about it. The need for personal use would well be within the knowledge and that too in the personal knowledge of such closely related person and thus the strict rule of evidence disentitling a person to give derivative evidence through a power of attorney may not apply to such like cases. Number of other judgments have been referred to above where the court found no infirmity in those cases where husband/wife appeared as witness as an attorney on behalf of their respective spouse. Accordingly, I am not inclined to accept this limb of submission raised by the learned counsel for the petitioner as this would not lead to any infirmity at all. The other aspects/submissions on the basis of the age of the respondent-landlady would not also advance the case of the petitioner in any manner. The precedents are available in sufficient number to show that this cannot be advanced as a valid ground to decline the prayer on the ground of personal necessity. The respondent-landlady, as such, succeeded in proving the ground with assurance and the tenant-petitioner has not been able to substantiate her plea on the basis of evidence on record or in terms of the legal position, that may emerge from the judgment referred to and relied upon by her."Singh Rattan Pal 2013.09.19 16:07 I attest to the accuracy and integrity of this document High Court, Chandigarh Civil Revision No.3516 of 2013 (O&M) 30
It may further be noticed that SLP No.11858 of 2008 filed against the aforesaid judgment of this Court has already been dismissed by Hon'ble the Apex Court.
In Civil Revision No.4480 of 2006 titled as 'Roop Chand v. Karneesh Kumar' decided on 11.05.2010, the argument of the tenant's counsel to the effect that a grandson cannot be said to be a member of the family of the landlord, particularly who was not financially dependent upon him, was negated by this Court in the following terms:
"I have not been able to persuade myself to find any force in the plea raised on behalf of the petitioner. There is no warrant for the proposition that a grand son has necessarily to be averred and proved to be financial dependent upon the paternal grand father before the latter can raise a claim for ejectment of tenant from the tenanted premises for use by the latter. Infact, the question of financial dependence of a grand son upon the paternal grand father would appear to be completely foreign to the issue. What, to my mind, would be relevant for purpose of consideration in such like eventuality would be whether the projected need is bonafide or a mere wish of the landlord aimed at obtaining vacation of the tenanted premises. Being from the same line of generation otherwise, a grand son can validly raised a claim of the indicated category and there is nothing whatsoever wrong in a grand father raising a plea that he requires the tenanted premises for occupation by his grand son."Singh Rattan Pal 2013.09.19 16:07 I attest to the accuracy and integrity of this document High Court, Chandigarh Civil Revision No.3516 of 2013 (O&M) 31
In 'Smt. Rajni Arora and others v. Smt. Krishna Devi' 2012(1) RCR (Rent) 208, wherein in similar circumstances the landlady had failed to step into the witness box and statement of her attorney, who was her husband, to prove her bonafide requirement of the demised premises was accepted, was sought to be challenged by raising similar argument as raised in this case, and the same was rejected in the following terms:
"17. The last argument raised on behalf of the counsel for the petitioner that landlady has failed to step into the witness box and therefore an adverse inference has to be drawn against her and the statement of her attorney cannot be read into evidence and the petition is liable to be failed on this count and is again without any merit. It is well settled that a power of attorney is competent to depose about the facts about which he has personal knowledge. No doubt he has deposed about the facts which are exclusively in the knowledge of the party for whom he has been examined in the Court. In the present case the respondent landlady was to prove its personal necessity for his requirement of the shop in dispute for her son Arvind Kumar. In the present case, the power of attorney of the respondent landlady is none else but her husband Subhash Chander who is also father of Arvind Kumar for whose necessity the shop is required. It is not in dispute that landlady and her son are residing together with Subhash Chander her husband general power of attorney.Thus, it cannot be argued, in the facts and circumstances of the case, that the facts regarding the requirement of the personal necessity of his son Arvind Kumar were not to the knowledge of the power of attorney Singh Rattan Pal 2013.09.19 16:07 I attest to the accuracy and integrity of this document High Court, Chandigarh Civil Revision No.3516 of 2013 (O&M) 32 and he could not depose regarding those facts. In the peculiar facts and circumstances of the case, the judgments relied upon by the learned in case of Radhey Sham supra is not applicable at all."
It is further useful to refer to a judgment of this Court in the case of 'M/s Metro Tyres Limited v. Sushil Kumar and another' (2012) 1 RCR (Rent) 20, wherein a question was raised as to whether in the absence of landlady from the witness box, who has projected her/her husband's bonafide need in the pleadings, the ejectment application on the ground of her necessity could have been allowed on the basis of the statement of her attorney-holder (husband); and this Court after considering a catena of judgments, including the one in Man Kaur's case (supra), has held as under:
"14. From the resume of the aforesaid and specially the law laid down by the Supreme Court in the case of Man Kaur (Dead) by LRs (supra), it is evident that even an attorney in the case of husband and wife can depose on behalf of the other. In this regard, there is a Single Bench judgment of the Andhra Pradesh High Court in the case of Satyanarayan, Spun Pipe Company v. N. Padmavathi, 2003(3) R.C.R.(Civil) 388 in which it has been held that as per Section 120 of the Indian Evidence Act, 1872, in all civil proceedings the parties to the suit, and the husband or wife of any party to the suit, shall be competent witnesses. In case of non-appearance of landlady, her husband who had knowledge of the facts can depose in the Court and the non-appearance of his wife cannot be faulted with ..."Singh Rattan Pal 2013.09.19 16:07 I attest to the accuracy and integrity of this document High Court, Chandigarh Civil Revision No.3516 of 2013 (O&M) 33
It may further be noticed that in another judgment rendered in 'Sheela Rani and another v. Minder Kaur alias Mohinder Kaur' 2013(2) RCR (Rent) 130, this Court has not accepted the plea that grandson has to be dependent upon the landlady for the use of building since according to the pleadings the property was required for the landlady and her grandson and not solely for the grandson, who was independently doing some business.
It is also useful to refer to the judgments of this Court rendered in 'Anurag Bindal v. Kamlesh Mittal' 2012(2) HLR 354 and 'Satnam Chanan v. Darshan Singh' 2006(2) HRR 272, wherein it has been held that a Power of Attorney holder, who is in personal knowledge of the facts of the case, can be appointed by a landlord who can represent the matter and can adduce evidence in accordance with law where the essential facts are within his knowledge and the testimony of such Power of Attorney cannot be discarded.
Thus, in view of the need for personal use, which was very well within the knowledge of the grandson, who is so closely related to the landlady, it cannot be said that Mandeep Singh Bindra attorney of the landlady was not having personal knowledge of the facts which are essential for the adjudication of the dispute in issue and such facts were only to the notice of landlady. In this case landlady has pleaded the necessity of her grandson and there cannot be any other person better than the grandson, who is her attorney also, who can spell out the personal necessity of the landlady and her family. Singh Rattan Pal 2013.09.19 16:07 I attest to the accuracy and integrity of this document High Court, Chandigarh Civil Revision No.3516 of 2013 (O&M) 34
In view of the aforesaid discussion, this Court is not inclined to accept the argument raised on behalf of the petitioner-tenant that in the instant case adverse inference has to be drawn against the respondent-landlady for not appearing into the witness box to prove her case as her grandson/attorney was not competent to depose on her behalf.
At the cost of repetition, it must be noticed that the need of respondent-landlady has not been challenged on any other ground.
Thus, no case for interference in the impugned orders/judgments is made out.
Dismissed.
(RAKESH KUMAR GARG) JUDGE September 19, 2013 rps Singh Rattan Pal 2013.09.19 16:07 I attest to the accuracy and integrity of this document High Court, Chandigarh