[1]. IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR JUDGMENT
Shobha Chand @Shoba Ram Vs Pradeep Kumar & Anr. S.B. CIVIL SECOND APPEAL No.429 OF2011Civil Second Appeal Under Section 100 CPC against the judgment and decree dated 23.07.2011 passed by Addl. District Judge, Ratangarh in Appeal Decree No.9/2003. *** Date of Judgment: September 24, 2013 PRESENT HON'BLE MR. JUSTICE P.K. LOHRA Mr. A.K. Rajvanshy, for the appellant. Mr. O.P. Mehta, for the respondents. BY THE COURT: This second appeal arises out of the judgment and decree of the first appellate Court whereby it has affirmed the judgment and decree of eviction passed against the appellant-tenant. Scorning the checkered history of the case, the brief facts are that Late Shri Shiv Karan, father of the respondents, launched a civil suit against the [2]. appellant-tenant for arrears of rent and eviction from rented premises which was a Nohra situated at Dikhnade Bas, Ratangarh. At the threshold, in the plaint three grounds were set out for eviction, viz., reasonable and bonafide necessity, default and material alteration undertaken by the appellant-tenant. The suit was contested by the appellant and a written statement was filed denying all the allegations. In the written statement, the appellant has averred that he is not a tenant and being owner of the property, the suit as such is not tenable against him. Taking into account the pleading of the appellant, the plaintiff Shiv Karan made endeavor to amend the plaint by incorporating the ground of denial of title for eviction. While acceding to the prayer of the plaintiff, the learned trial Court allowed the amendment and permitted him to insert the new ground of eviction, namely, denial of title. During pendency of the trial of the suit, original plaintiff Shiv Karan expired and his legal representatives were substituted as plaintiffs to pursue the suit. The learned trial Court framed issues for determination and the rival parties adduced their evidence. On behalf of original plaintiff, his power of attorney Shiv Bhagwan appeared in the witness box and testified on oath. Besides Shiv Bhagwan, three other witnesses also appeared on behalf [3]. of the plaintiffs to prove their case. The appellant himself appeared in the witness box for substantiating his defence and two other witnesses also appeared on his behalf to strengthen his defence. The learned trial Court while deciding issue relating to default in payment of rent, recorded a categorical finding against the appellant but allowed him the benefit of first default. Two crucial issues i.e. Issue No.4 concerning material alteration in the premises, and Issue No.12A denial of title by the appellant, were decided against the appellant-tenant and on the strength of decision on these two issues, the learned trial Court passed the decree for eviction. Being disdained by the judgment and decree of the learned trial Court, the appellant-tenant preferred first appeal before the learned Addl. District Judge, Ratangarh, District Churu. Before the first appellate Court, respondents No.1 & 2 were arrayed as party. The first appellate Court, vide its judgment and decree dated 23rd of July 2011, upheld the judgment and decree passed by the learned trial Court and dismissed the appeal of the appellant. Learned counsel for the appellant, Mr. A.K. [4]. Rajvanshy, has strenuously argued that the respondent plaintiffs have miserably failed to prove their case inasmuch as the plaintiff/plaintiffs himself/themselves never appeared in the witness box to prove the requisite grounds for eviction. Assailing the testimony of the power of attorney holder of the plaintiff, learned counsel for the appellant would urge that his statements are absolutely vague and cryptic, and on the strength of these statements the grounds for eviction are not being fully proved in favour of respondent landlord. Learned counsel for the appellant has contended that the ground for eviction, namely, denial of title has been misconstrued by both the Courts below and the same has not been thrashed out in the light of other facts and circumstances, which were pleaded and proved by the appellant. Making scathing attack on the statement of power of attorney of the plaintiff, learned counsel for Mr. Rajvanshy has argued that on many crucial questions the witness has answered evasively, and therefore, his testimony is unworthy of any credit within the four corners of Order 3 Rule 1 & 2 CPC and solely on that count the judgment and decree passed by both the Courts below cannot be sustained. For substantiating his contention, learned counsel for the appellant has placed reliance on the following verdicts: [5].
1. Janki Vashdeo Bhojwani & Anr. Vs. Indusind Bank Ltd. & Ors. [AIR2005SC439 2. Vidhyadhar Vs. Manikrao & Anr. (AIR1999SC1441 3. Sohan Devi (Smt.) & Ors. Vs. Damodar Lal & Anr. [2013(3) RLW2615(Raj.)].
4. Ram Prasad Vs. Hari Narain (AIR1998Raj. 185). The Apex Court, in Janki Vashdeo Bhojwani’s case (supra), while examining the true purport of Order 3 Rule 1 & 2 CPC, has held that power of attorney can act on behalf of principal only in respect of acts done by him and the term “acts”. would not include deposing in place and instead of principal. The Apex Court made following observations in Para 13 & 14 of the verdict:
13. Order III, Rules 1 and 2 CPC, empowers the holder of power of attorney to "act" on behalf of the principal. In our view the word "acts" employed in Order III, Rules 1 and 2 CPC, confines only in respect of "acts" done by the power of attorney holder in exercise of power granted by the instrument. The term "acts" would not include deposing in place and instead of the principal. In other words, if the power of attorney holder has rendered some "acts" in pursuance to power of attorney, he may depose for the principal in respect of such acts, but he cannot depose for the principal for the acts done by the principal and not by him. Similarly, he cannot depose for the principal in respect of the matter which only the principal can have a personal knowledge and in respect of which the [6]. principal is entitled to be cross-examined.
14. Having regard to the directions in the order of remand by which this Court placed the burden of proving on the appellants that they have a share in the property, it was obligatory on the part of the appellants to have entered the box and discharged the burden. Instead, they allowed Mr. Bhojwani to represent them and the Tribunal erred in allowing the power of attorney holder to enter the box and depose instead of the appellants. Thus, the appellants have failed to establish that they have any independent source of income and they had contributed for the purchase of the property from their own independent income. We accordingly hold that the Tribunal has erred in holding that they have a share and are co-owners of the property in question. The finding recorded by the Tribunal in this respect is set aside. A coordinate Bench of this Court, in Smt. Sohan Devi’s case (supra), while considering the question of burden of proof, has held that if the plaintiff has not appeared in the witness box to discharge his burden, decree for eviction cannot be passed. The Court made following observations in Para 22 of the verdict:
22. There is no specific prayer in the plaint for eviction on the ground that defendant has raised construction upon the premises in question, therefore, the plaintiff is entitled for decree of eviction. It is also worthwhile to observe that there is no specific date or specific fact is mentioned with regard to type of construction raised by him and when; so also, the plaintiff himself did not appear in the witness-box to prove the fact of alteration even though burden of proof lay upon him. [7]. Per contra, Mr. O.P. Mehta, learned counsel for the respondents, would urge that no substantial question of law is involved in the instant appeal, and therefore, no indulgence can be granted to the appellant. Mr. Mehta, learned counsel for the respondents, has vehemently argued that instant case is a pure and simple case of concurrent finding of fact recorded by both the Courts below, and therefore, interference in the second appeal is not desirable. Joining the issue with the appellant on Issue No.4 & 12A, learned counsel Mr. Mehta has submitted that both the Courts below, on appreciation of evidence and other materials on record, has recorded a definite finding that the appellant has made material alterations in the premises and has denied the title of the landlord, and therefore, the said finding of fact is not liable to be upset by exercising jurisdiction under Section 100 CPC. Mr. Mehta, learned counsel for the respondents has urged that burden of proving Issue No.4 was on the appellant and he has miserably failed to discharge his burden inasmuch as he has not been able to substantiate his assertion that material alterations in the premises were carried out with the consent of the landlord. With these submissions, Mr. Mehta has urged that any pitfalls in the [8]. evidence of the respondent-plaintiffs cannot come to the rescue of the appellant. Mr. Mehta has contended that material alterations in the premises are admitted by the appellant but he has not been able to establish that these alterations were carried out with the consent of the landlord, and therefore, in these circumstances the finding of fact recorded by the learned trial Court on issue No.4 is a just conclusion warranting no interference in the second appeal. Countering the argument of the appellant that the plaintiffs have not appeared in the witness box to prove their case, learned counsel Mr. Mehta would urge that denial of title by the appellant is clearly apparent from his written statement as well as deposition of the appellant on oath before the learned Court below. Mr. Mehta has contended that the stand of the appellant in his written statement that he is owner of the property, coupled with his statement on oath as a witness to reiterate the said stand was rightly taken note by both the Courts below in construing the ground of denial of title as a valid ground for eviction. Mr. Mehta, learned counsel for the respondents has also contended that denial of title by the appellant has been rightly construed by both the Courts below and the said issue has been thoroughly examined in the light of facts and circumstances, which is a just decision, and calls for [9]. no interference being a decision on findings of fact. With these submissions, the learned counsel Mr. Mehta has argued that a candid admission by the defendant about his omissions and commissions are sufficient and in that background the loopholes in the evidence of the plaintiff can be overlooked and the same has been rightly overlooked by both the Courts below. In support of his arguments, the learned counsel for the respondents has placed reliance on Pandurang Jivaji Apte Vs. Ramchandra Gangadhar Ashtekar [(1981) 4 SCC569. The Hon’ble Apex Court, in the said verdict, while overruling the objection of drawing adverse inference for non-appearance of a litigant, has held that if there is an admission by the opposite party, the non-appearance of a litigant cannot be looked into. The Apex Court has made following observations in this behalf in Para 11 and 13:
11. In our opinion the question of drawing an adverse inference against Apte and Bavdekar on account of their absence from the court would arise only when there was no other evidence on the record on the point in issue. The first appellate court had relied upon the admission of the decree-holder himself and normally there could be no better proof than the admission of a party. The High Court, however, has observed in its judgment that the decree-holder has made no admission in his evidence which would justify refusal to draw adverse inference for the failure of Apte and Bavdekar to step into the witness-box. [10].
13. In the agreement dated December 29, 1958 between the decree-holder and the judgment-Debtor, Ex. 58, there is a clear reference to the amounts due to Apte from the judgment-Debtor and the decree-holder had full knowledge of the dues of Apte. Apart from the dues of Apte there were other dues also to be paid by the judgment-Debtor. If according to the judgment-Debtor himself the amount of Rs 46,000, which was due to Apte, had not been cleared off even by the sale of the property to Bavdekar the decree- holder could not proceed against the property in the hands of Bavdekar. The attachment of the property at the instance of the decree-holder was only subject to the lien of Apte and unless the entire amount due to Apte was cleared off the decree-holder could not proceed against the property in the hands of the purchaser, Bavdekar. Therefore, the conclusion drawn by the two courts below that the amount of Rs 46,000 and odd was due to Apte from the judgment-Debtor and the same had not been cleared off even by the sale of the property under attachment, was based on the materials on the record viz. the admission of the decree-holder, the admission of the judgment-Debtor and from various letters and receipts Ex. 47/1 to 47/13. All these documents have been lost sight of by the High Court which has indeed exceeded its jurisdiction in reversing the finding on the assumption that the courts below had approached the case with a wrong view of law in not drawing an adverse inference against Apte and Bavdekar on their failure to appear in court when the question of loan due to Apte from the judgment- Debtor and the sale of the properties for Rs 46,000 has been amply proved by the evidence on the record. The question of drawing an adverse inference against a party for his failure to appear in court would arise only when there is no evidence on the record. [11]. The Apex Court, while making it clear that the jurisdiction in second appeal is to be exercised sparingly, made following observations in Para 14:
14. On the findings of fact recorded by the two courts below, which are final and which could not be normally set aside by the second appellate court, the decree-holder cannot compel Apte or Bavdekar to produce the property before the Court or the proceeds of the sale of the property as the amount due to Apte from judgment-Debtor has not still been satisfied. Learned counsel has also placed reliance on a verdict of Apex Court in case of Smt. Ramkubai Since deceased by LRs. & Ors. Vs. Hajarimal Dhokalchand Chandak & Ors. [2000 (1) RCJ68(SC)].. In the said verdict, a landlady, who sought eviction of the premises, did not appear in the witness box and her son appeared as her general power of attorney and deposed on oath. Relying on the testimony of the general power of attorney, the Apex Court made following observations in Para 9 of the verdict:
9. We have already noted above that the ground of bona fide requirement of the landlady was accepted by the trial court but it was negatived by the Appellate Court and the same was confirmed by the High Court. The Appellate Court was swayed away by the fact that the landlady herself did not come into the witness box to support her claim. What is not appreciated by the [12]. Appellate Court is that her son Bhikchand who was also her G.P.A. holder and for whose benefit the business is to be set up, did come into the witness box to support the case of personal requirement. The Appellate Court was of the view that the bona fide requirement is in the first place a state of mind and might be something more and that could be established only by the landlady. In all fairness to Mr. Mohta, we must note, that he conceded that that reasoning of the Appellate Court could not be supported. Learned counsel for the respondents in order to counter the argument of the learned counsel for the appellant that alleged agreement-to-sale has altered the status of the tenant, has urged that mere agreement to sale cannot alter the position of a tenant vis-à-vis his landlord. Repudiating the alleged agreement to sale, learned counsel for the respondents would urge that there is no semblance of proof and therefore the same has been rightly brushed aside by both the Courts below. In support of this argument, the learned counsel has placed reliance on a decision of Division Bench of Punjab & Haryana High Court in Joginder Kaur Vs. HUF of Kidar Nath & Sons [2000 (2) RCJ223. In the said verdict, the Punjab & Haryana High Court has held that mere entering into an agreement cannot alter the position of a tenant qua his landlord. The Court made following observations in Para 19: [13].
19. While traveling into these precedents, an attempt has been made only dealing with the question if the relationship of landlord and tenant would come to an end or not. No opinion is expressed with respect to the civil rights pending between the parties. It is abundantly clear that the relationship of landlord and tenant would not come to an end merely because an agreement is alleged to have been entered into. Herein, it is stated to be an oral agreement. Once the relationship of landlord and tenant had been continuing, necessarily so because possession had not been delivered in pursuance of any such agreement, the liability of the petitioner- tenant to pay and tender the rent continued. On the first date of hearing, admittedly, rent was not tendered. The order of eviction, thus, was rightly passed. I have heard the learned counsel for the rival parties and perused the impugned judgments of both the Courts below. On thoroughly examining the impugned judgments, it is crystal clear that both the learned Courts below while recording an affirmative finding in favour of respondent landlord on Issue No.4 and 12A, has placed reliance on the admission of the appellant and the evidence tendered on his behalf. The learned trial Court, while recording finding on Issue No.4, has clearly and unequivocally concluded that the appellant- [14]. tenant has miserably failed to prove the concurrence of the landlord for making material alteration in the premises. As regards findings on Issue No.12A, the learned trial Court has recorded the same by taking note of the admission of the appellant in his written statement and the statements which he made on oath while asserting that he has never executed any rent note and he is not tenant of the plaintiffs. The appellant has asserted with full conviction that he is owner of the property. In this view of the matter, while appreciating the pitfalls in the evidence of the respondent-plaintiffs, this Court cannot lose sight of the fact that there is a candid admission of the appellant for proving material alteration in the premises and denial of title. As a matter of fact, the appellant has facilitated passing of the decree for eviction by conceding on both these grounds. It is a trite law that proof about any of the grounds set out under Section 13(1) of the Rajasthan Premises (Control of Rent and Eviction) Act 1950 is sufficient for passing a decree of eviction. As the learned trial Court has recorded a finding of fact by marshalling of the evidence that both the grounds are proved and the learned appellate Court while fully concurring with the said finding of fact has affirmed the same, there is obviously no reason for this Court to [15]. upset the said finding of fact in the second appeal. The second appeal is entertainable only when there is substantial question of law involved in the matter. A thorough examination of the matter makes it crystal clear that both the learned Courts below have recorded a finding of fact which is just and proper and not based on misreading of evidence of the rival parties. In the estimation of this Court, there is no perversity in the concurrent finding of fact recorded by both the Courts below and there being no substantial question of law involved in this appeal, the appeal is bereft of any merit. The net result of the above discussion is that I find no merit in this appeal and same is accordingly dismissed. No order as to costs. (P.K. LOHRA), J.
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