JUDGMENT :

Surya Prakash Kesarwani, J.

"Waiver of notice to quit under Section 113, determination of tenancy under Section 106 and deposition by power of attorney holder on behalf of landlord are the main questions involved in this petition."

1. Heard Shri Manu Khare, learned counsel for the defendants-tenants/petitioners and Shri Chetan Prakash, learned counsel for the plaintiff-respondent.

Facts:

2. A shop in house No. D-58/12A-82, Gandhi Nagar, Sigra, Varanasi, was let out by its owner and landlady Smt. Sita Devi Agarwal (the plaintiff-respondent) to the defendants- tenants/petitioners No. 1 and 2 under a rent agreement dated 6.1.2009 at the monthly rent of Rs. 2,005. The tenancy commenced from 1.1.2009. Thereafter mutually the rent was enhanced with effect from 11.2.2011, from Rs. 2,005 to Rs. 3,000 per month. On 9.9.2013, the plaintiff-landlady/respondent issued a notice under Section 106 of the Transfer of Property Act, 1882 (hereinafter referred to as "the Act 1882") to the defendants-tenants/ petitioners determining the tenancy. Since the notice was not complied with by the defendants-tenants/petitioners, therefore, the plaintiff-landlady filed S.C.C. Suit No. 49 of 2014, Smt. Sita Devi Agarwal vs. Pawan Kumar and Others which was decreed by judgment and decree dated 24.8.2017 passed by the Judge Small Cause Court, Varanasi. Aggrieved with this judgment the defendants-tenants/petitioners filed S.C.C. Revision No. 15 of 2017, Pawan Kumar and Another vs. Sita Devi, which was dismissed by the Additional District Judge/FTC-I, Varanasi by judgment dated 15.7.2019. Aggrieved with these two judgments, the defendants-tenants/petitioners have filed the present petition under Article 227 of the Constitution of India.

Submissions:

3. Learned counsel for the defendants-tenants/petitioners, submits as under:

(i) The plaintiff-landlady has not appeared in the witness box rather her son and power of attorney holder Anoop Kumar Agarwal appeared and gave evidence, which is impermissible in view of the law laid down by Hon'ble Supreme Court in Janki Vashdeo Bhojwani and Another vs. Indusind Bank Ltd. and Others, (2005) 2 SCC 217 : 2005 (1) AWC 138 (SC). The judgment of learned single Judge in Union of India and Another vs. Sudarshan Lal Talwar, AIR 2002 All 212 : 2002 (3) AWC 1881 relied by the plaintiff-respondent, has no application in view of the judgment of Hon'ble Supreme Court.

(ii) A power of attorney was executed by the landlady Sita Devi Agarwal in favour of her son Anoop Kumar Agarwal on 17.7.2014 and thereafter, suit was instituted on 5.8.2014. Therefore, if the son of the plaintiff was well acquainted with all the facts of the case and competent to depose on behalf of the plaintiff-landlady, there was no need to execute the power of attorney. In fact, the son of the plaintiff-landlady was not aware of the facts of the case and therefore, he was not competent to depose. on behalf of the plaintiff-landlady.

(iii) In view of Section 111(h) read with Section 113 of the Transfer of Property Act, 1882, the institution of a suit after one year of the notice would amount to waiver of the notice. The notice given by the plaintiff-landlady under Section 106 of the Act, 1882 was no notice in the eyes of law.

(iv) The aforesaid notice was issued by the plaintiff-landlady for setting up the business for her son in the disputed shop who wanted to take franchise of Raymond.

(v) Subsequently the plaintiff-landlady stated that she could not get franchise of Raymond because the place was not available whereas in his cross-examination son of the plaintiff-landlady has admitted that the shop was not suitable for franchise of Raymonds. Thus, the need set up by the plaintiff-landlady was not bona-fide.

(vi) The defendants-tenants/petitioners have not violated any of the conditions of the rent agreement dated 6.1.2009. Therefore, the court below could not have granted a decree of eviction.

(vii) Notice was issued by the plaintiff-landlady on 11.9.2013 under Sec