Karnataka High Court
Sri Shamrao Rukamanna Talwar vs Smt. Suvarna By Her Pa Holder Sri ... on 23 October, 2007
Equivalent citations: ILR2008KAR1493, AIR 2008 (NOC) 1812 (KAR.), 2008 (3) AIR KAR R 1 2008 AIHC (N0C) 690 (KAR.) = 2008 (3) AIR KAR R 1, 2008 AIHC (N0C) 690 (KAR.) = 2008 (3) AIR KAR R 1, 2008 AIHC (N0C) 690 (KAR.) = 2008 (3) AIR KAR R 1 2008 (3) AIR KAR R 1, 2008 (3) AIR KAR R 1
Author: N. Kumar
Bench: N. Kumar
ORDER N. Kumar, J.
1. This revision petition is filed by the tenant against the concurrent finding recorded lay the Courts below that the landlady has established her requirement to occupy the schedule premises and therefore, the tenant is liable to be evicted.
2. For the purpose of convenience, the parties are referred to as they are referred to in the trial Court.
3. One Sri Sunthankar and brothers were owners of western half portion of CTS No. 3470 situate at Samadevi Galli, Belgaum in Karnataka. The petitioner purchased the said property under two registered sale deeds dated 11-9-1987 and 19-9-1987. Out of the said property, the premises roughly measuring 30' x 13' consisting of three rooms is in the occupation of the respondent as a tenant which is the subject matter of these proceedings and for short herein referred to as the "schedule property", In paragraph-1 of the eviction petition, the schedule property is clearly setout and a hand sketch is also prepared and referred to in paragraph-2 arid enclosed to the eviction petition showing the location of the schedule properly.
4. The petitioner filed an eviction petition under Section 27(2)(a) and (r) of the Karmtaka Rent Act, 1999 (for short hereinafter referred to as the "Act") for eviction of the respondent-tenant. The said eviction petition is filed through her Bower of Attorney Holder and husband Sri. Balchandra Tubachi, who has signed the eviction petition, verified, the same and also filed an affidavit swearing to the contents of the eviction petition. The case of the petitioner in that the respondent is not regular in making monthly payment of rent of Rs. 100/-. He has not paid rents from 1-10-1987 till the date of the petition. He is in arrears of rent for a period more than 14 years. Therefore, she got issued a legal notice dated 3-2-2004 claiming arrears of rent only for a period of three years from 1-2-2002 to 31-1-2004 amounting to Rs. 3,600/-. The said notice was duly served. He did not send any reply. Therefore, the petitioner was constrained to file the eviction petition. It is contended that the schedule property was purchased for her self occupation and for the benefit of her entire family. She is staying in a rented premises at Plot No. 21, Near Amrut Pharma, Pipe Line Road, Vrjayanagar., Belgaum on a monthly rent of Rs. 1,500/-. Except the schedule property she do not own any other premises either by herself or in the name of her husband within Belgaum Taluk. She has no other reasonable and suitable premises in Belgaum. Her son by name Suraja has already completed Diploma in Pharmacy in the year 2002, the schedule property is located in the heart of the city and in a commercial area, she intends to open a retail medical shop for the avocation of her son. Her husband is carrying on wholesale pharmaceutical dealership business under the name and style of M/s. Tubachi Medicals. Therefore, she contended that she needs the schedule property for her self-occupation.
5. The respondent after service of nonce entered appearance and filed detailed statement of objections, He contended that the description of the schedule property is not proper, boundaries are also not correct, the sketch produced has no legal sanctity and is not an authenticated document. He denied the purchase of the schedule property by the petitioner, denied the relationship of landlord and tenant between the parties, denied the rate of rent. He averred that the Corporation demolished a portion measuring 8 ft. in length in his occupation and therefore, he had no option but to get it repaired. In that context, the petitioner filed a suit in O.S. No. 402/1997 to harass the respondent He denied that he is in arrears of rent. He denied the title of the petitioner to the schedule properly. He setup a plea of adverse possess ion. He contended that he is in possession of the schedule property from the year 1975 till today without any obstructions, hurdles and disturbances from anybody. Therefore, he sought for dismissal of the HRC petition.
6. The petitioner examined her Power of Attorney Holder/husband as PW1 and produced 31 documents, which are marked as Exs. P1 to P31. She also examined her landlord of the rented premises as PW2. The respondent examined himself as RW1 and examined two witnesses as RW2 and RW3 and produced two documents, which are marked as Exs. R1 and R2.
7. On appreciation of the aforesaid oral and documentary evidence on record and after hearing the arguments advanced, the trial Court framed the following points for consideration:
i) Whether the petitioner proves that the respondent is in arrears of rent for a period of 3 years from 1-2-2002 to 31-1-2004 total amounting to Rs. 3600/-?
ii) Whether the petitioner proves that she requires the petition premises for her use and occupation as averred in the petition?
iii) What order?
8. The trial Court answered both the points in affirmative. It also held that there exists jural relationship of landlord and tenant between the parties. It is relevant to point out at this stage that the respondent had filed I.A. No. 2 under Section 43 of the Act to stop further proceedings on the ground that there is no jural relationship of landlord and tenant. The said application was opposed by the petitioner. The trial Court after hearing, rejected the said application by its order dated 30-8-2004, holding that prima facie there exists relationship of landlord and tenant.
9. The respondent being aggrieved by the order of eviction preferred HRC RP. No. 34/2005. He also filed HHC.RP. No. 30/2004 challenging the order of the trial Court passed on I.A. No. 2 under Section 43 of the Act. The learned District Judge heard the revision petitions together and framed the following points for consideration:
i) Whether the finding of the trial court that there existed jural relationship of landlady and tenant between the petitioner and the respondent is sustainable?
ii) Whether the finding of the trial court that the respondent is liable to be evicted under Section 27(2)(a) of the Karnataka Rent Act 1999 is sustainable?
iii) Whether the finding of the trial Court that the respondent is liable to be evicted Under Section 27(2)(r) of the Karnataka Rent Act 1999 is sustainable?
iv) Whether the trial court erred in dismissing I.A. No. II in HRC No. 23/2004?
v) Whether HRC R.P. No. 30/2004 and HRC R.P. No. 34/2005 deserves to be allowed?.
10. The revisional Court held that in view of clear admissions contained in Exs. P30 and 31 as well as the judgment in O.S. No. 402/1997, the finding recorded by the trial Court that there edstis jurat relationship of landlady and tenant between the parties is legal and valid. It also held that the trial Court was justified in dismissing I.A. No. 2 and consequently, dismissed the HRC.RP. No. 30/2004, As the trial Court had not granted 30 days time to the respondent to pay the arrears of rent, the order of eviction passed under Section 27(2)(a) of the Act was set-aside. On the question of self-occupation, it recorded a finding that need put-forth by the petitioner is established and the finding recorded by the trial Court is based on legal evidence and do not call for interference. Accordingly, it dismissed HRC.RP. No. 34/2005. This petition m preferred only against the eviction order passed under Section 27(2)(r) of the Act.
11. This Court by an order dated 14th November 2005, held that as the landlady was not examined in the case at all and that the proceedings were initiated through a Power of Attorney Holder who has deposed, following the judgment of the Supreme Court in the ease of Janki Vashdeo Bhojwam and Anr. v. Indusind Bank Ltd. and Ors. set-aside the order of eviction and remanded the matter to the trial Court permitting the landlady to adduce evidence. Aggrieved by the said order of this Court, the petitioner preferred a Special Leave Petition to the Supreme Court in Civil Appeal No. 304/ 2007. Leave was granted and the order of the High Court was set-aside and the matter was remanded to the High Court for fresh decision in accordance with law keeping open all the contentions. It is thereafter, this revision petition is taken up for consideration and heard.
12. Sri C.B. Srinivasan, learned Senior Counsel appearing for the respondent/tenant contends in spite of specific denial in the statement of objections to the eviction petition, denying the existence of jural relationship between the landlady and the tenant and the description and the identity of the property, the trial Court committed serious error in not raising these two points for determination and in passing an order of eviction. Even though the revisional Court raked a point regarding the relationship of landlady and tenant, the question of identity was not raised. Therefore, he contends that the impugned orders require to be quashed, Secondly, he contended that in view of First Explanation to Section 27(2) where once a landlord file an affidavit regarding his requirement of the premises, presumption is raised in his favour. It is the landlord of the premises alone, who has to file the affidavit, who alone has to depose before the Court in support of the said averments. A Power of Attorney Holder is not competent either to file an affidavit or to depose in a petition filed under Section 27(2)(r) of the Act. Therefore, he contends that admittedly the landlady has not stepped into the witness box and she has not filed any affidavit and therefore the eviction order passed based on the evidence of Power of Attorney Holder is illegal and requires to be set-aside. He also submitted that even the finding on merits is contrary to material on record and requires interference.
13. Per contra Sri G. Balakrishna Shastry, learned Counsel appearing for the petitioner land lady, submitted that the trial Court has recorded a categorical finding that there exists relationship of landlady and tenant between the parties. Regarding identity and description, the said point was not urged. On the contrary, the respondent admitted the description of the property in the cross-examination. The requirement of the premises is that of the family which consists of landlady, her husband and her son! Therefore, the need was within the knowledge of her husband who, as the Bower of Attorney Holder, filed an eviction petition, filed an affidavit in support of the eviction petition and has given evidence. In fact, on the ground that the landlady has not been examined and the evidence of the Power of Attorney Holder cannot be acted upon, this Court had set-aside the order of eviction, which order is now been set-aside by the Supreme Court remanding the matter and therefore, that question is finally concluded by the judgment of the Supreme Court and cannot be re-agitated before this Court. In so far as the merits of the claim of the respondent is concerned, tooth the Courts have concurrently held that the requirement pleaded by the petitioner established and that being purely a question of fact, which is based on legal evidence, cannot be interfered with, in the absence of perversity, in second revision. Therefore, he submits that tm case for interference is made out.
14. In the light of aforesaid submissions, the points that arise for consideration in this revision petition are as under:
i) Whether the non-raising of point for termination vitiates the judgment when both the parties have adduced evidence, argued the matter the Court has considered the same and recorded a finding thereon?
ii) Whether the petition for eviction under Section 27(2)(r) of the Act is to be signed by the landlady, and she alone hat to file the affidavit and the examination of the landlady is mandatory in order to secure an order of eviction?
iii) Whether a case for interference on findings of merits is made out?
Regarding Point No. 1:
15. It is a fact that in the statement of objections filed to the eviction petition, the respondent has specifically denied the identity of the property as well as the description of the property. Further the respondent has specifically denied the jural relationship of landlady and tenant It is a fact that in the judgment of the trial Court, no points for consideration are raised in respect of these two aspects.
16. Section 42 of the Act provides for procedure to be followed by the Court Sub-section (2) states that while holding an inquiry in any proceedings before it, follow as far m maybe the practice and procedure of a court of small causes, including recording of evidence. The procedure followed in small causes is that, after the filing of the written statement the case is posted for evidence of the plaintiff. As in the case of an original suit, issues are not framed and then case is not posted for evidence of the plaintiff. However, after the parties adduce evidence and argue the matter, the court while writing the judgment after setting out the pleadings of the parties and the arguments advanced, frames the points for consideration and answer the same from the material on record. Therefore, both the parties know what their case is and what is the case of the opposite party and in order to substantiate their respective contentions, they are expected to adduce evidence in support of their respective cases.
17. In the instant case, the parties have adduced evidence in respect of both the aforesaid pleas, which was raised by the respondent. Insofar as the identity of the property is concerned, virtually in the cross-examination, the respondent admits that the description of the property given in the eviction petition is the property, which is in his occupation. In the eviction petition, not only the description of the property was act-out meticulously in paragraph in paragraph-2 they refer to the hand sketch and have also enclosed the hand sketch and have in detail described the property with reference to the hand sketch. The respondent has not looked into the hand sketch, which he admits in the cross-examination. In the light of the aforesaid admission, no arguments were addressed in support of the said plea. The learned trial Judge has setout in detail the entire arguments of both the parties and this point is not noted. It is not the case of the respondent before this Court that they had argued that point and the learned trial Judge did not consider the same. On the contrary it is not in dispute that the said point was not urged. Therefore, it is clear that when the evidence on record shows there is no dispute regarding the identity and description of the property and the said point was not urged at the time of arguments in both the Courts, bath the Courts committed no illegality in not raising a point for consideration and not recording any finding thereon. Such a point cannot be urged for the first time in second revision. Even other wise the material on record establishes the identify of the property.
18. Insofar as dispute regarding relationship of landlady and tenant is concerned, the parties have adduced evidence regarding the point in controversy. The trial Court has looked into both the oral and documentary evidence on record. It is on record, that the Belgaum Municipal Corporation for the purpose of widening of road demolished a portion, roughly, 7 ft., which was in the occupation of the respondent. It is the case of the respondent that with the consent of the landlord alter obtaining license, he repaired the remaining extent of the building. However, he apprehended that the landlord might initiate proceedings against him and prevent him from effecting repairs. Therefore, he lodged a caveat to prevent at interim order or an exports order being passed again him. The said caveat wan filed on 21-4-1997 on the fl of Vacation Judge, Belgaum, against the petitioner-lax lady. It wan numbered as Caveat Petition No. 12/199 which is marked in the case as Ex. P31. Paragraph-1 the caveat petition reads as under:
The petitioner is a monthly tenant of residential premises consisting of 4 rooms in CTS No. 3470, Samadevi Galli, Belgaum and respondent is the landlady of the said premises. The petitioner has been in actual possession and occupation of the said premises since from 1977. Earlier landlord was Sri Nilkanth Sunthankar. The husband of the respondent has been recovering the rental amount from the petitioner. But he has never passed the receipts to any of her tenants. It is submitted that this petitioner has paid upto date rent to the landlady, through her husband.
In paragmph-2, it is stated as under:
The petitioner with the consent of landlords got permission from the Corporation Authority to construct, the building for repairs and the Corporation authority has granted permission to the petitioner regarding repair of the said building.
In paragraph-4 it is stated as under:
It is likely that respondent's husband has filed a suit against the petitioner and will try to get the exparte order or any interim order against the petitioner.
Therefore, the respondent admitted in unequivocal terms the relationship of land lady and tenant, and payment of rent. As predicted by the respondent, the petitioner had filed a suit in O.S. No. 402/1997. In fact, it was filed in vacation which was numbered as V.O.S. No. 10/1997. After vacation, it was re-numbered as O.S. No. 402/1997. In the said suit, the respondent filed his written statement. Paragraph-19 is of utmost importance which reads as under:
1977 to 1987 earlier owner Sunthankar was collecting rental at the rate of Rs. 65/- per month. From 1987 upto this date, rent is collected by the plaintiff at the rate of Rs. 100/ -per month. There is no arrears of rent. Rent receipts are not passed under the threat of eviction, Earlier premises m occupation of this defendant was 13' x 44', now reduced to 13' x 36'. Only ground floor was leased is false. Ground floor with 10' was leased out, Building is not demolished, Only repair is done to strengthen old walls. The entire repair work is completed before suit Photos axe produced herewith (likewise the building permission is produced herewith).
After the said written statement was filed, the respondent did not participate in the suit Therefore, an exparte decree came to be passed holding that there exists relationship of tenant and landlady between the parties, monthly rent is Rs. 100/- and the petitioner is the owner of said property. The said order has become final
19. The aforesaid admissions in the legal proceedings were much prior to the filing of eviction petition. In the aforesaid written statement the respondent has admitted the ownership of plaintiff to the schedule property, relationship of landlady and tenant between them and the monthly rent being Rs. 100. It is only after the eviction petition was filed, for the first time giving a go-by to the said stand, the title of the plaintiff was denied, relationship was denied, description and identity of the properly wm denied. The trial Court on appreciating the aforesaid legal evidence on record, has rightly come to the conclusion that there exists relationship of landlady and tenant between the parties. It is clear that the respondent has deliberately Bed in this proceeding and has gone to the extent of setting up a plea of adverse possession. He is in possession of the properly as a tenant. In the light of the aforesaid admissions, at an undisputed point of time, in a legal proceedings between the very same parties, existence of relationship of landlady and tenant is clearly established. Moreover the finding in OS No. 402 of 1997 also operates as res judicata. Merely because the trial Court did not raise a point for consideration regarding this dispute, it do not vitiate the order. In fact this Court had an occasion to consider a similar question in second appeal where it was urged that non-framing of an issue has vitiated the judgment and decrees of the Courts below, In answering the said contention this Court held in the case ofK.S. Venkatesh v. N.G. Lakshminarayana and Ors. as under:
25. Therefore, it is well settled that where the parties went to trial fully knowing the rival case and led all the evidence not only in support of their contentions but in refutation of those of the other side, the absence of an issue is not fatal and it cannot be said that there was mis-trial, If the material on record shows parties understood their case, adduced evidence, addressed arguments, mere not framing of an issue on that point would not vitiate the judgment if the Court on consideration of the aforesaid material has recorded a finding on the said disputed question. The principle underlining this rule is, the party to a suit should not be taken by surprise and not only he should have a full opportunity to put forth his case, but he should also have an opportunity to meet the case of the opposite party. It is neediest to emphasise that framing of a proper issue in a suit is not only the responsibility of the Court but equally a responsibility m cast on the learned Counsel who are appearing for the party, as they are fully acquainted with the facts of the case and the points in dispute and the evidence they are expected to adduce in order to succeed, So also is the responsibility of the parties, as it is they who want adjudication of their dispute. Therefore, if the material on record shows that both the parties are fully conscious of the dispute involved in the proceedings and consciously adduce evidence in respect of their respective cases also, address arguments and when the Court on consideration of the same records a finding thereon mere non-framing of an issue in the manner the parties wanted it to be, would not vitiate the judgment and decree rendered by the Court, void.
In fact the revisional court did raise the aforesaid point for consideration and has answered the same agreeing with the findings recorded fey the Trial Court. Therefore, there is no substance in the said contention.
Reg: Point No. 2:
20. Section 27 of the Act deals with protection of tenants against eviction. Sub-section (1) of Section 27 starts with a non-obstante clause, gives protection to the tenant from eviction of the premises which fella within the jurisdiction of the Act. However, Sub-section (2) provides for an order of eviction being passed on an application made making out ground stipulated the said sub-section. Clause (r) of Sub-section (2) provides that when the landlord of the premises requires the premises in the same form or after reconstruction or rebuilding for occupation for himself or for any member of his family or for any other person for whose benefit the premises are held and if he does not possess any reasonably suitable accommodation, he is entitled to an order for recovery of possession. Explanation-I to the said Section provides, where the landlord in his application supported by an affidavit submits that the premises are required by him for occupation for himself or &r any member of his family dependent on him, the Court shall presume that the premises are so required. In fact, Explanation-III, makes it clear that for the purpose of this Clause, that is, Clause (r), 'the owner at the premises' includes a person who has been allotted such premises by the Bangalore Development Authority or any other local authority by way of an agreement of hire-purchase, lessee or sub-lease, mi before the full ownership rights accrue to such hire-purchaser, lessee or sub-lessee, as the cane may be. Therefore, it is clear that the landlord who seeks eviction under Section 27(2)(r) need not be an absolute owner of the premises. The word "landlord" also has been defined under the Act, meaning a parson who for the time being is receiving or is entitled to receive the rent of any premises, Therefore, a petition for eviction under Section 27(2)(r) can be filed by the landlord for occupation for himself or by the owner of the properly for the requirement of any member of his family or for any person for whose benefit the premises are held. If such a petition is filed it has to be sworn to by an affidavit setting out the nature of requirement and even a person who has not acquired absolute title to the property can maintain a petition for eviction as provided under Explanation-III.
21. In the light of the aforesaid provisions, the question for consideration is, whether a petition for eviction should be filed by the landlord personally or could it be filed by his Power of Attorney Holder and the case of requirement could be established by examining such Power of Attorney Holder?
22. Who should sign and verify the pleadings is contained in Order VI Rules 14 and 15 of the Civil Procedure Code. It reads as under:
14. fPleading to be signed.- Every pleading shall be signed by the party and his pleader (if any): Provided that where a party pleading is, by reason of absence or for other good cause, unable to sign the pleading, it may be signed by any person duly authorised by him to sign the same or to sue or defend on his behalf.
15. Verification of pleading.-
(1) Save as otherwise provided by any law for the time being in force, every pleading shall be verified at the foot by the party or by one of the parties pleading or by some other person proved to the satisfaction of the Court to be acquainted with the facts of the case.
(2) The person verifying shall specify, by reference to the numbered paragraphs of the pleading, what he verifies of his own knowledge and what he verifies upon information received and believed to be true.
(3) The verification shall be signed by the person making it and shall state the date on which and the place at which it was signed.
23. From a reading of the aforesaid provisions it is dear that normally a pleading shall be signed by the party. However, there are certain exceptions carved out. If by reason of absence or for other good cause the party is unable to sign the pleading, it may be signed by any person duty authorized by him to sign the same or to sue or defend on his behalf. Therefore, a person who is duly authorized by the party may sign the pleading. He she may be a person holding a General Power of Attorney or a person holding such other valid authorization. The object of signature and verification is to fix upon the party the responsibility for the statements and to affirm the guarantee of good faith. The words "other good cause" leave the matter in the discretion of the Court. Signing is merely a matter of procedure. So it is immaterial whether it is signed by him or by some one else on behalf of the to provided he is duly authorized to do so. Similarly, the law provides such pleadings shall be verified at the foot by the party or by one of the parties pleading, if there are more than one or by some other person proved to the satisfaction of the Court to be acquainted with the facts of the case. In this rule the words "duly authorized" is conspicuously missing. Under this rule even a person who is not duly authorized may verify the pleadings provided the Court is satisfied that such a person is acquainted with the facts of the case. By CPC Amendment Act, 1999 Sub-rule (4) has been introduced. It mandates that the person verifying the pleading shall also furnish an affidavit in support of the pleadings. Here the word used is the person and not the party to the proceedings. Such a verification is required to be made at the foot of the print for the simple reason that what is to be verified is what is averred in the preceding paragraphs of the plaint. Therefore, from, these two provisions it is clear that it is not the requirement of law that in all cases the party alone should sign and verify can he done by a duly authorized agent such as a Power of Attorney Holder.
24. Section 27 of the Rent Act provides for an application being made to the Court in the prescribed manner for the recovery of possession of the premises on one or more of the grounds mentioned therein. Rule 33 of the Karnataka Rent Control Rules, 2001 makes the application of CPC to such applications. It reads as under:
33. The provisions of the Civil procedure Code to be generally followed. In deciding any question relating to procedure not specifically provided for in the Act or by these rules, the Court shall as far as possible be guided by the provisions contained in the Code of Civil Procedure, 1908.
Therefore, the Court dealing with the application under Section 27 of the Act shall as far as possible be guided by the provisions contained in CPC, 1908 in the absence of specific provision in the Act providing for a particular situation. The Act specifically do not provide how the application should be signed and verified. Therefore, an application under Section 27 also requires to be signed and verified as contemplated under Order VI Rules 14 and 15. Thus it could be signed either by the party or by a person duly authorized by such party.
25. It was contended that, when the landlord files a petition under Section 27(2)(r) as he or she is seeking an order for recovery of possession on the ground of self occupation, such a petition should be signed only by the owner and it cannot be signed and verified by any person though he may be duly authorized. As is clear from the language employed in Section 27(2) the person who has to make an application for the order of recovery of possession is not explicitly mentioned. However, such an application could be filed only by a landlord. The word 'landlord' has been defined under Section 3(e) which reads as under:
(e) "landlord" means a person who for the time being is receiving or is entitled to receive, the rent of any premises, whether on his own account or on account of or on behalf of or for the benefit of any other person or as a trustee, guardian or receiver for any other person or who would so receive the rent or to be entitled to receive the rent, if the premises were let to a tenant.
26. The language employed in the aforesaid definition makes it clear that a landlord under the Act though is given a restricted meaning he need not be the owner of the premises. That is, a person other than the owner of the premises being a landlord of the premises can make an application for recovery of possession. In that view of the matter, the argument that an eviction petition should be signed only by the owner or the party if it is under Section 27(2) has no substance, When the law provides even a person other than the owner who falls within the definition of landlord can maintain a petition, it cannot be said a petition under Section 27(2)(r) cannot be filed by a person who is duly authorised by such owner of the premises or the landlord of the premised.
27. First explanation to Section 27(2)(r) mandates that a petition under Section 27(2)(r) is supported by an affidavit of the landlord stating that the premises are required by him for occupation for himself or for any member of his family dependent an him, the Court shall presume that the premises are so required, If a person other than the landlord on the bails of due authorisation by way of a Power of Attorney is permitted in law to file a petition for eviction,, such a person can as well file an affidavit as contemplated under explanation-I to Section 27(2)(r) of the Act. It is thereafter, such person can also step into the witness box to give evidence in support of the allegations made in the petition as well as in the affidavit. In law there is no prohibition for an eviction petition to be filed by such duly authorised person which is signed and verified by such person and which is also supported by an affidavit of such person, He can also depose in the case in place of the landlord. However, when the person who has signed and verified the plaint and filed the affidavit and who has deposed before the Court is a person other than the landlord himself, the Court before acting on such evidence should carefully scrutinize the said evidence. The standard of proof that is required to be adduced in such case would be certainly higher than compared to the evidence adduced by the party himself. Ultimately the Court is to be satisfied from the material on record whether the case pleaded by the party is proved or not If the case pleaded by the party is purely personal to the landlord, his Power of Attorney Holder's evidence on those aspects would be in the nature of hearsay evidence and it carries no weight and the Court would be justified in declining to act on the said evidence. But, the evidence required to be adduced in the case is something which is within the personal knowledge of the party and the said evidence is also within the personal knowledge of the person deposing, then if that evidence proves the case pleaded by the party, the Court can very well act on the said evidence and grant the relief to the party.
28. In a case of self occupation of the premises under Section 27(2)(r) when the case pleaded is that the landlord needs the premises for his or her self occupation and the occupation of his or her family members and if the other family members have within their knowledge the said requirement they would be competent witnesses to speak about the requirement In a case, where the property stands in the name of the wife and the husband is collecting the rent, in Jaw both could he construed as landlord within the meaning of Section 2(e) of the Act. Even otherwise a husband who u living with his wife who has actively taken part in the acquisition of the properly in the name of the wife and who wants the premises for bus occupation as well as the occupation of his wife and their children is competent to file an eviction petition in the name of the landlord/wife on the basis of a Power of Attorney executed, in his favour and on that basis to duly sign and verify the application, petition and also duly authorised to file the supporting affidavit as contemplated under explanation-I to Section 27(2)(r) and also depose in support of the case pleaded in the petition. Such a situation arise when property stands in the name of a wife, she may be illiterate, feeling shy to come to Court or prevented from coining to Court because of ailment or disability. Same may be the case, in the case of a husband who also Buffers from the aforesaid disabilities in which event his spouse can very well file an eviction petition on the bask of a Power of Attorney duty executed. If the husband and wife are aged, or are under some disability, infirm and under the care of their children, the children could sign, verify the application if they are duly authorized. They can also depose.
29. As is clear from the definition of word "landlord", any person who satisfies the requirement under the said provision could maintain a petition. If that is so, in the absence of any express provision providing for presentation of such petition by the landlord himself, it cannot be said that the Power of Attorney Holder is not entitled to present such petition. There is no such law. Therefore, a petition under Section 27(2)(r) can be filed by the Power of Attorney Holder of a landlord. If a Power of Attorney Holder can file a petition, an affidavit accompanying the said petition also can be filed by such Power of Attorney Holder on behalf of the Landlord. Though as is clear from Explanation-I a presumption is raised in favour of such a landlord, it is not an irrebuttable presumption. If the tenant adduce evidence rebutting the said presumption, the landlord has to prove his case in accordance with law. Therefore, merely because, a Power of Attorney Holder files an affidavit swearing to the contents of the petition which he has duly sworn to, files it before the Court, in no way it affect the interests of both the landlord or the tenant Moreover, before the Court acts upon the affidavit and draws a presumption in favour of the landlord, it has to look into the relationship between the person who has filed the affidavit apart from the fact that he is the Power of Attorney Holder. If the person who has filed the affidavit and who acts as the Rawer of Attorney Holder is a total stranger to the landlord or in other words, is not a member of the family of the landlord, the Courts can insist on greater proof of requirement, But in cases, where the Power of Attorney Holder is none other than the husband or wife or son or daughter who are all members of the same family and for their need an eviction order is sought, if it is to be insisted that the landlord or landlady alone should file an affidavit, should file an eviction petition and step into the witness box, it will be stretching the language unduly and it win not advance the cause of justice. The Rent Act is meant to protect the interest of the tenant as well as the landlord. Unless, the grounds provided under the Act is established, the landlord is not entitled to an order of eviction. While appreciating the case of the petitioner the Court will certainly take note of the status of the Power of Attorney holder, the status of the person who has adduced evidence and his relationship to the other. That is the safeguard, which is in-built in the enactment, As otherwise,, where the landlord is a legal person, the question of that legal person seeking eviction, filing an affidavit, stepping into the witness box would be impossible, as legal person has to act through natural person. If that is so, there is no reason to insist, in case the wife is the owner, the husband should not file a petition as her Power of Attorney or when the husband is the owner, the wife should not file a petition as his Power of Attorney. In fact, they are entitled to adduce evidence without any Power of Attorney, speaking about their requirement pleaded in the petition, which within their personal knowledge.
30. Relying on the judgment of the Supreme Court in Janki Vashdeo Bhojwani and Anr. v. Indusind Bank Limited and Ors. it was contended that the evidence of the Power of Attorney Holder cannot be the basis for passing a decree for eviction as the need put forth was personal to the landlady and such a need in not proved by the evidence of the Power of Attorney Holder.
31. In feet this Court had an occasion to consider the aforesaid judgment of the Supreme Court in the case of Bhimappa and Ors. v. Allisab and Ors. in reported in ILR 2006 KAR 3129. It was held that the Supreme Court in the aforesaid judgment has not laid down as a proposition of law, that in all cases the evidence of the Power of Attorney Holder is to be excluded and the plaintiffs case has to fail for not examining him. AH that has been said in the said decision of the Apex Court in, when plaintiff has to adduce evidence in respect of matters which are within h» personal knowledge, the plaintiff cannot prove those matters by examining a Power of Attorney in his place and consequently, if the plaintiff is not examined, the case of the plaintiff has to fail. In fact when this Court earlier set aside the order of eviction passed by the Courts below solely on the ground that the petitioner is not examined and the evidence of Power of Attorney Holder cannot be looked into, relying on the aforesaid judgment of the Supreme Court, the Apex Court set aside the order passed by this Court and has remanded the matter. Therefore, it follows that the said judgment of the Supreme Court has no application to the facts of this case. Though the entire matter is remanded to this Court for fresh consideration, as the Supreme Court has set aside the earlier view of this Court, to that extent the judgment of the Supreme Court has become final and the said contention cannot be re-agitated by the petitioner before this Court as it is already concluded.
32. In the instant case, the properly belongs to the wile, her husband has filed the eviction petition as her Power of Attorney Holder, he has sworn to the affidavit in support of the allegation in the petition, he has stepped into the witness box: and deposed, he has been cross-examined at length. The case of requirement is clearly established not only from his oral evidence, but also documentary evidence produced in this case. It is not a case of the court drawing a presumption in favour of the land lord on the basis of the affidavit filed under Explanation 1 to Section 27(2)(r) of the Act. When that being the position, the Courts below committed no illegality in acting on the evidence of the Power of Attorney Holder and passing the eviction order.
Reg: Point No. 3:
33. The material on records shows that the petitioner purchased the property for a valuable consideration. She is living with her family members in a rented premises. The owner of the rented premises is examined as PW-2, which fact is not disputed by the tespondent.
34. It is also alleged that the schedule premises is situate in a commercial area which can be used both for residential and commercial purposes. The material on record shows that neither the petitioner nor her husband nor her son owns any premises within the municipal limits of Belgaum. The petitioner's husband in carrying on Wholesale business in Pharmaceuticals and his son has completed Diploma in Pharmacy in the year 2002. These foots are established not only by oral evidence but also by unimpeachable documentary evidence. Relying on the said evidence both the Courts below have concurrent held that the requirement pleaded by the petitioner is established and therefore the petitioner is entitled to an order of eviction.
35. This being purely a question of fact, no ease for interference with the concurrent finding of facts is made out. Hence, on merits also, the impugned orders do not call for any interference.
36. In view of the aforesaid reasons, I pass this following:
ORDER The HRRP is dismissed. The parties shall bear their own costs. However, the respondent is granted three months' time to vacate the schedule premises.