Judgment:
Abhay M. Naik, J.
1. This appeal has been preferred by the defendant/tenant against a decree for eviction granted by the Courts below in concurrent manner under Section 12(1)(c) of the M.P. Accommodation Control Act, 1961.
2. Plaintiff/respondent instituted a suit in the capacity of power of attorney holder of Bhagwan Das Goyal for eviction and recovery of arrears of rent with allegations that the suit house situated at A-B Road, Kamlaganj, Hanuman Colony, Shivpuri is owned by the principal (Le., Bhagwan Das Goyal) which was occupied by the defendant/appellant for residential purpose on rent @ Rs. 250/- p.m. Appellant lastly paid the rent on 6-5-2004 and obtained receipt therefor, wherein he acknowledged balance of Rs. 4,000/- towards arrears of rent. Son of the defendant/appellant, contrary to the purpose of tenancy converted one room of tenanted premises for non-residential purpose and opened a STD/PCO Centre with Registration No. 07492-503031 07492-503031 . The STD/PCO dealership was obtained from Airtel Company which is revealed in the computerized Bill No. 205468243, dated 2-10-04, which was appended to the plaint. Thus, the appellant having committed an act inconsistent with the purpose of tenancy has made himself liable to be evicted under Section 12(1)(c) of the M.P. Accommodation Control Act. A notice of demand of rent was issued which was not accepted by the defendant and it came back with an endorsement of refusal. However, entire rent was neither paid for tendered pursuant to the said demand notice.
3. Though a ground of subletting/parting with was also taken by the plaintiff/respondent, it having been negatived, I do not feel it proper to burden this judgment with the facts pertaining thereto.
4. Defendant/appellant submitted his written statement, denying thereby the claim of the plaintiff. However, he did not deny that the suit premises was obtained for residential purpose. It was obtained in the year 2000 @ Rs. 150/- p.m. as rent. With the consent of the plaintiff STD/PCO Centre was opened in one of the rooms of the tenanted premises and in lieu thereof rent was enhanced from Rs. 150/- to Rs. 250/- p.m. Defendant is still residing in the remaining portion of the suit premises and has not shifted his residence elsewhere. As regards, demand notice it is alleged that no such notice was tendered to him and he did not refuse to accept the same. However, it was stated in specific that the defendant/appellant deposited entire arrears of rent and upto date rent within 15 days from the service of summon and has deposited monthly rent regularly in the Court. It was stated in specific that the defendant is still residing in the suit premises and is not liable to be evicted. In addition to this, it was stated in the written statement that the plaintiff/respondent has no authority in law to institute a suit in his own name.
5. After recording the evidence, learned Trial Judge decreed the suit in favour of the plaintiff/respondent vide judgment and decree dated 30th April, 2007 on the ground of inconsistent user.
6. Aggrieved by it, Civil Appeal No. 7-A/08 was preferred which, too, has been dismissed vide impugned judgment and decree dated 23-4-2008. Hence, the present appeal which has been heard on the following substantial question of law:
Whether the tenant having converted one of the rooms of the residential premises while retaining the character of dominating purpose of residential tenancy in respect of major portion of tenanted premises is liable to be evicted under Section 12(1)(c) of the M.P. Accommodation Control Act?
7. Shri R.C. Khanna, learned Counsel for the appellant and Shri V.K. Bhardwaj, Sr. Advocate made the submissions for their respective parties.
8. In Para 3 of the written statement it was stated that STD/PCO Centre was installed with the permission of the landlord and therefore, rent o[ the suit premises was enhanced from Rs. 150/- to Rs. 250/- p.m. There was no whisper in the written statement that consent was in writing. However, during the evidence, it is revealed that defendant/appellant tried to develop that in the rent receipt marked as Exh. D-4 word/) UKAN was added which is proof of the consent having been granted. The rent receipt (Exh. D-4) was not produced during the plaintiffs evidence and the same was not confronted with any of the witnesses of the plaintiff. It was produced by Narendra Dhingra, who happened to be son of the tenant. This witness has clearly admitted in Para 8 of his cross-examination that Exh. D-4 does not contain signature of the plaintiff but it contains signature of Govind Das Goyal. If the permission for STD/PCO Centre was given vide receipt (Exh. D-4) by adding the word DUKAN, it was a material fact in order to avoid decree for eviction on the ground of inconsistent user and it ought to have been pleaded in specific. Permission for STD/PCO Centre is stated in Para 3 of the written statement to have been obtained from landlord, i.e., Bhagwan Das Goyal whose signature is not contained in Exh. D-4. Moreover consent according to written statement was obtained by the tenant Sahibram Dhingra, who despite being alive was not examined. Although his son Narendra Dhingra (D.W. 1) has stated that Sahibram was unable to move but that does not prevent him from giving statement on commission. This apart, Exh. D-4 is not original document but is photocopy of an alleged receipt. Defendant submitted an application under Section 65 of the Evidence Act on 2-8-06 (I.A. No. 8) with allegation that original of Exh. D-4 was misplaced. This interlocutory application was allowed by the Trial Judge on 20th September, 2006. It was nowhere disclosed by the appellant that original of Exh. D-4 was not available at the time of cross-examination of plaintiffs witnesses. Evidence of the plaintiff was closed on 7-7-06 and the notice under Section 66 of the Evidence Act for production of the receipt book containing alleged receipt was issued on 14-9-06. In view of the aforesaid facts and circumstances, the Courts below have not committed any error in disbelieving the defendant's plea that STD/PCO Centre was installed with the permission/consent of the landlord.
9. It is further contended that the power of attorney was not competent to depose about the personal knowledge of the landlord. Accordingly, statement is not admissible in the eye of law.
10. In the instant case defence of the defendant/tenant is that he had obtained the permission from the landlord for installation of a STD/PCO Centre in the suit premises and therefore, is not liable to be evicted. However, tenant Sahibram Dhingra did not appear in the witness box to prove the said consent.
11. As regards, Exh. D-4, it has been admitted by the son of the tenant that it did not contain the signature of the landlord. Since factum of having obtained consent is not duly proved by the tenant himself, it was not necessary for the plaintiff/landlord to appear in the witness box for denial of the fact which itself has not been proved at all.
12. Shri R.C. Khanna, learned Counsel for the appellant placed reliance on the decision of Andhra Pradesh High Court in the case of S. Padmavathamma v. S. Sudha Rani and Ors. 2004 (2) Civil Court Cases 364 (AP), wherein it was observed that general power of attorney holder can appear as witness only for his personal capacity but cannot appear on behalf of plaintiff in the capacity of the plaintiff. Thus, it can be taken as a settled view that power of attorney holder of the plaintiff may appear and depose only about the facts which are within his personal knowledge and he cannot appear on behalf of the plaintiff to depose about the facts which are exclusively within the personal knowledge of plaintiff. Reference may be made successfully to the Supreme Court decision in the case of Janki Vashdeo Bhojwani and Anr. v. Indusind Bank Ltd. and Ors. 2005 (2) CCC 324 (SC). Same view has been taken by Single Bench of Punjab & Haryana High Court in the case of Prem Sagar v. Darbari Lal and Anr. 2000 (2) CCC 606 (P&H;). It has been observed in Prem Sagar's case (supra), that:
If a party alone has a particular knowledge of the fact, it has to appear in the witness box and it cannot delegate his power to appear in the witness box to his attorney. In the present case, there is a specific case that the petitioners are using the premises for the residence of their labourers and if that is so, it is a fact which is in the knowledge of the tenant and it is for the tenant to prove the same. In the present case, if the landlord did not enter into the witness box, no adverse inference can be drawn against him.
13. In the instant case, defendant/tenant is found to have failed in proving that change of use from residential to non-residential was made with the consent of the landlord. This being so, non-appearance of the landlord did not assume importance in view of the facts and circumstances of the case.
14. Reliance by Shri Khanna, learned Counsel on this Court's decision in the case of T.D. Agrawal v. Nirmal Mitra 2002 (2) RCR 177, is out of place because in the case of T.D. Agrawal (supra), permission to the tenant to use one room as office in the tenanted premises which was dominantly for residential purpose was found proved. T.D. Agrawal case (supra), was under Chapter III-A of the M.P. Accommodation Control Act and the ground of eviction on the basis of inconsistent use was not available before RCA.
15. Before entering into the contentions of both the learned Counsel on the aforesaid substantial question of law, it would be proper to reproduce Section 12(1)(c) of the M.P. Accommodation Control Act, 1961, which reads as under:
12. Restriction on eviction of tenants.- (1) Notwithstanding anything to the contrary contained in any other law or contract, no suit shall be filed in any Civil Court against a tenant for his eviction from any accommodation except on one or more of the following grounds only namely:
(a) *** *** ***(b) *** *** ***(c) that the tenant or any person residing with him has created a nuisance or has done any act which is inconsistent with the purpose for which he was admitted to the tenancy of the accommodation, or which is likely to affect adversely and substantially the interest of the landlord therein:
Provided that the use by a tenant of a portion of the accommodation as his office shall not be deemed to be an act inconsistent with the purpose for which he was admitted to the tenancy.
16. It is crystal clear from the aforesaid provision that the Legislature in its best wisdom made the tenant liable to be evicted if he has done any act which is inconsistent with the purpose for which he was admitted to tenancy. It is not in dispute in the present case that the tenant was inducted into the suit premises for residential purpose and that he used to reside therein during past. It was only in the year 2004, when the tenant converted one of the rooms of the tenanted premises for using it for STD/PCO Centre which obviously was for nonresidential purpose and was obviously inconsistent with the purpose of tenancy for which he was admitted. Single inconsistent act of tenant may be sufficient to prove a ground for ejectment provided such an act must be of gravity.
17. Shri Khanna, learned Counsel placed reliance on Supreme Court decision in the case of Sant Ram v. Rajinder Lal and Ors. : AIR 1978 SC 1601, to contend that ground of inconsistent user is not available to the plaintiff. In Sant Ram's case (supra), it is held that it is impossible to hold that if a tenant who takes out petty premises for carrying on a small trade also stays in the rear portion, cooks and eats, he so disastrously perverts the purpose of the lease. A different 'purpose' in the context is not minor variations but majuscule in mode of enjoyment. In the present case, it has already been found proved that the defendant has converted entire room situated at the front site for STD/PCO Centre and the same was not used at all for residential purpose. Clause (c), Sub-section (1) of Section 12 makes a tenant liable to be ejected if he has done any act which is inconsistent with the purpose of tenancy. Single act of the tenant in view of the language of the said provision is sufficient to cause his eviction provided the act is of gravity. Thus, the appellant does not get any assistance ham Sant Ram decision.
18. Shri Khanna, learned Counsel further placed reliance on Supreme Court decisions in the case of Atul Castings Ltd. v. Bawa Gurvachan Singh AIR 2001 SAC 1684 and in the case of Bishamber Dass Kohli v. Satya Bhalla (Smt.) 1993 AIR SCW 643. In the case of Atul Castings Ltd. (supra), a residential room was found used for disposal of office work at home and was also being used as study room of family members. In the case of Bishamber Dass Kohli (supra), Supreme Court did not find any regular commercial activity for carrying on of business with interaction of public and customers. In the present case, it is not disputed that subject portion of the tenanted premises was made available by the tenant for the public at large to pay and avail the facility of STD/PCO. Thus, cases of Atul Castings Ltd. and Bishamber Dass Kohli (supra), are quite distinguishable on facts.
19. It may be seen that the learned Single Judge of this Court in the case of Devendra s/o Chandmal Chaoudhary v. Warsilal slo Diwanchandji Dua 2004 (3) MPLJ 162, has held that setting up of STD Booth in portion of suit shop contrary to the terms of rent note makes a tenant liable to be ejected.
20. I may successfully further refer on this point another Single Bench decision of this Court in the case of Bojraj Rathi v. Suchint Chincholkar 1991 (2) M.P. Weekly Notes 22, wherein it was held that in case a tenant used any portion for non-residential purpose of the tenanted premises let-out to him for residential purpose he makes himself liable for eviction under Section 12(1)(c) of the Act. Likewise a tenant putting up a tea stall in residential premises was held liable to be evicted under Section 12(1)(c), Baldev v. Ramniwas Chhaganlal Vyas 2000(1) M.P.H.T. 15 (NOC). In the case of Suresh v. Prabhulal 1997 MPACJ 158, it has been held by this Court that where accommodation was let-out for residential purpose and a part of it has been put to different use, i.e., for the business of washerman the tenant incures the liability of eviction under Section 12(1)(c) of the Act.
21. Division Bench of this Court in the case of Jagdish v. Manikchand Jain 1979 MPRCJ 110, does support the aforesaid discussions wherein it has been held that an act of the tenant in using a part of the premises for a different purpose was an act inconsistent so as to give rise to the ground for ejectment as contemplated under Section 12(1)(c) of the Act.
22. In the result, it is held that the defendant/tenant who was inducted in the tenanted premises for residential purpose, has made himself liable to ejectment by converting a room for STD/PCO, it being an act inconsistent with the purpose of tenancy. Accordingly, substantial question of law is decided against the appellant, in favour of the respondent. Impugned judgment and decree are hereby confirmed. Appellant to bear the costs of respondent to the tune of Rs. 5,000/- if already certified. Appeal is accordingly dismissed hereby.