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2018 Supreme(All) 1201
IN THE HIGH COURT OF ALLAHABAD
Anjani Kumar Mishra, J.
M/s. Chaman Lal and Sons – Appellant
Versus
Awadh Kumar Agarwal – Respondent
S.C.C. Revision No. 310 of 2016
Decided On : 08-01-2018
For the Appellant : Tarun Agrawal.
For the Respondent: Manish Tandon.
The main legal point established was the importance of raising objections regarding the admissibility of evidence at the trial stage and the limitations of cross-examination when the defense has been struck off.
Headnote:
tenant - eviction - U.P. Act No. 13 of 1972 - Section 20, Section 3(g) (2) - [Section 20, Section 3(g) (2)] - The court discussed the issue of service of notice, arrears of rent, and the power of attorney holder's testimony. The key legal provisions discussed were related to the admissibility of evidence, mode of proof, and the power of attorney holder's ability to depose on behalf of the principal.
Fact of the Case:
The dispute involved a tenant challenging a suit for eviction, arrears of rent, and damages filed by the landlord. The tenant denied receipt of notice and alleged payment of rent to the co-landlords.
Finding of the Court:
The court found that the notice and its contents could be proved by the testimony of the plaintiff's son, and the defense of the tenant had been struck off, limiting the scope of cross-examination. The court also noted the absence of a written power of attorney for the witness.
Issues: The issues included the admissibility of evidence, the power of attorney holder's testimony, and the mode of proof.
Ratio Decidendi: The court held that objections regarding the admissibility of evidence should have been raised before the trial court and could not be raised at the revisional stage. The court also emphasized the limitations of cross-examination when the defense has been struck off.
Final Decision: The revision was allowed in part, affirming the order of eviction but modifying the damages payable to be calculated at a lower rate.
Anjani Kumar Mishra, J.
1. Heard Shri Tarun Agrawal, counsel for the revisionist and Shri Manish Tandon, counsel for the opposite party.
2. This is a SCC revision, filed by the tenant challenging the order dated 16.08.2016, decreeing the plaintiffs opposite parties suit for eviction, arrears of rent and damages.
3. The dispute pertains to a shop in the tenancy of the revisionist. The respondent filed the suit alleging that the tenant was in arrears of rent from 01.04.1995 to 31.10.2000 as also of the sewer and water tax, calculated @ 18%. A notice dated 14.11.2009 was sent by registered post through Advocate calling upon the tenant to pay the arrears within 30 days. The notice was served on 18.11.2009. The same was not complied with and therefore, the tenant was liable to be evicted. Damages @ Rs. 5,000/- per month was also claimed w.e.f. 19.12.2009, when the status of the tenant became that of an unauthorized occupant. It was also stated that only the preceding three years rent could be claimed as any claim for the remainder was barred by time.
4. The revisionist filed his written statement denying the receipt of notice and also the allegation of arrears. It was stated that the rent up to 28.10.2008, had been paid.
5. It was also stated that the original landlord was Ayodhya Prasad and upon his death, his widow Kishori Devi was paid the rent. When she died in 1996, the rent was paid to the co-owners, the sons of Ayodhya Prasad and Kishori Devi. The plaintiff opposite party is their fourth son. The rent was paid yearly and that the entire arrears had been deposited prior to the first date of hearing and therefore, the benefit of sub-section 4 of Section 20 was liable to be extended to him.
6. It appears that the tenant revisionist failed to deposit the monthly rent due to which, his defence was struck off. The order striking of the defence has admittedly been affirmed up the Apex Court.
7. Counsel for the revisionist submitted that the landlord opposite party never appeared in the witness box to prove his case. On his behalf, his son as deposed before the trial Court. The son alleges himself to be the power of attorney holder of the landlord. A power of attorney holder could depose, only as regards, facts which were in his personal knowledge. He was competent to depose regarding the facts, which were in the exclusive knowledge of the landlord, his father and principal.
8. Referring to the affidavit of PW-1, Manish Kumar Agarwal, especially his cross- examination, it is submitted that, in any case, it emerges therefrom that the son and father were residing separately.
9. Moreover, the notice dated 14.11.2009, had been sent by the Advocate on behalf of the plaintiff-opposite party. Neither the plaintiff himself nor the counsel, who sent the notice appeared in the witness box to prove its contents. The suit therefore, could have been decreed.
10. Reliance has been placed by the revisionist upon the following decisions:-
1. Man Kaur (Dead) by LRs. v. Hartar Singh Sangha, (2010) 10 SCC 512, especially paragraphs 14 and 18 thereof.
2. A.C. Narayanan v. State of Maharashtra and Another, (2015) 12 SCC 203, especially paragraph 15.
3. Janki Vashdeo Bhojwani and Another v. Indusind Bank Ltd. and Others, (2005) 2 SCC 217, especially paragraphs 13, 15, 17, 18 and 21.
4. Modula India v. Kamakshya Singh Deo, (1988) 4 SCC 619, especially paragraphs 18 and 19.
11. The second contention of counsel for the revisionist is that admittedly the rent was Rs. 5,000/- per annum. The Court below has committed patently illegality in awarding the damages @ Rs. 5000/- per month. It is additionally submitted that in any case, there was no evidence that the prevalent rate of rent in the locality was Rs. 5,000/- per month.
12. Counsel for the opposite party has submitted that the son of the plaintiff had deposed that his father was suffering from various ailment and was in a position to attend Court. Besides, he has specifically stated that he was residing with hi
