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2005(2) JLJ 414
S.K. Gangele, J.
Bashir v. Smt. Hussain Bana
Civil Revision No. 395 of 2003: against the order of Rent Control
Authority; Decided on 28.2.2005.
The landlady submitted before the Authority that suit house No. 8/2, Kadwghat, Indore was rented out to the petitioner on a monthly rent of Rs. 325/-, consisting of five rooms, two on first floor, 3 on ground floor, needed for herself and her family members, son Mohammad Iqubal and grandsons Chand Mohammad, Zia-ul-Hasan, granddaughter Shagufta Bano. She was residing in a small room at Kadwghat and her family members in a rented premises. Her two grandsons and granddaughter were schoolgoing children. She was old lady aged about 75 years, wanted to live with her family members in her own suit house. Her husband had died. Earlier she filed civil suit for eviction against the non-applicant which was dismissed in default on 13.2.2000. [Para 2
After analysing the evidence, pleadings documents on record of the case, the Authority has held that bona fide need of the applicant and her family members is genuine, she had no other alternate accommodation at Indore City for aforesaid purpose and provisions of Order 9 Rule 9 CPC are not attracted and passed an order of eviction in favour of landlady.
The learned senior counsel Shri Chaphekar for the petitioner has submitted that findings of the Authority with regard to bona fide need are perverse and contrary to the evidence of the case. The Authority relied on the evidence of power-of-attorney holder of the applicant who tendered his evidence on behalf of the applicant. The evidence cannot be admitted because he had no right to depose on behalf of applicant as per provisions of Order 3 Rule 1 & 2 of the Civil Procedure Code. [Paras 4 & 5
Held: From the perusal of the order of the Authority, which runs into 27 pages, it is clear that the Authority considered the evidence of both the parties in detail and held that applicant was the owner of the suit premises. It was needed by her and family members bona fide, she had no other alternative accommodation for this purpose in the city. The Authority also considered arguments and counter arguments of both the parties and judgments relied on by both the parties in their support. In such circumstances the order passed by the Authority cannot be said to be non-speaking one. .... It is clear from the evidence of Iqbal Mohd., witness No.1, power of attorney holder, that applicant was old lady, she was admitted in the hospital frequently for her ailment and being a member of her family he described the need of the family in detail.
Another son of landlady Ataulkhat, witness No.2, also deposed that her brother wanted to live with her mother. The non-applicant petitioner in his cross-examination in para 20 also admitted that applicant had a need but he had a large family so he could not vacate the premises being a poor man. In such circumstances, in my opinion, the Authority did not commit any irregularity or illegality in holding that applicant proved her need. [Paras 8 & 9
(2) Civil P.C., 1908--O. 3 Rr. 3 and 2, O. 18 R. 4 -- Evidence Act, 1872 -- S. 118 -- landlady a woman of 80 years -- her son power of attorney holder deposed for her -- such deposition is not illegal. AIR 2005 SC 439 distinguished. 1994(1) MPJR 144, 1997(1) Vidhi Bhasvar 280, 2004 (1) Vidhi Bhasvar 115 and 1997(1) MPWN 105 relied on. [Paras 11 & 12
(3) Accommodation Control Act, 1961 (M.P.)--Ss. 23-A(a) (b) and 12(1) (e) and (j) -- eviction case -- grounds for bona fide need and non-payment of rent -- are recurring causes -- landlord is not precluded from instituting fresh proceedings.
(4) Civil P.C., 1908--O. 23 R. 1(4) -- provision under -- has no application on eviction case for bona fide need. (2001) 6 SCC 473, AIR 1988 SC 1345 and 1990 MPRCJ NOC 10 relied on. [Para 13
(5) Accommodation Control Act, 1961 (M.P.)--S. 23-A (a) -four adult members with landlady--one room and tin shed--landlady cannot be compelled to squeeze the family in two rooms. 1992( 1) MPWN 198 relied on. [Para 13
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1. This is the non-applicant-petitioner revision filed u/s 23E of M.P. Accommodation Control Act (hereinafter called as 'the Act') against the order of eviction dated 10.7.2003 passed by the Rent Control Authority (hereinafter called 'as Authority') on an application filed by the applicant-respondent-landlady.
2. The landlady submitted before the Authority that suit house No. 8/2, Kadwghat, Indore was rented out to the petitioner on a monthly rent of Rs. 325/-, consisting of five rooms, two on first floor, 3 on ground floor, needed for herself and her family members, son Mohammad Iqubal and grandsons Chand Mohammad, Zia-ul-Hasan, granddaughter Shagufta Bano. She was residing in a small room at Kadwghat and her family members in a rented premises. Her two grandsons and granddaughter were schoolgoing children. She was old lady aged about 75 years, wanted to live with her family members in her own suit house. Her husband had died. Earlier she filed civil suit for eviction against the non-applicant which was dismissed in default on 13.2.2000.
3. The petitioner denied the pleadings of landlady and submitted that her need was not bona fide, she had sufficient accommodation, earlier also she filed an eviction suit which was dismissed in default, it shows that she had no genuine need and prayed for dismissal of the eviction application.
4. On the pleading of both the parties, the Authority framed issues with regard to bona fide need of applicant and her family members and availability of alternate accommodation and weather provisions of Order 9 Rule 9 of the Civil Procedure Code are attracted in the proceedings. After analysing the evidence, pleadings documents on record of the case, the Authority- has held that bona fide need of the applicant and her family members is genuine, she had no other alternate accommodation at Indore City for aforesaid purpose and provisions of Order 9 Rule 9 CPC are not attracted and passed an order of eviction in favour of landlady.
5. The learned senior counsel Shri Chaphekar for the petitioner has submitted that findings of the Authority with regard to bona fide need are perverse and contrary to the evidence of the case. The Authority relied on the evidence of power-of-attorney holder of the applicant who tendered his evidence on behalf of the applicant. The evidence cannot be admitted because he had no right to depose on behalf of applicant as per provisions of Order 3 Rule 1 & 2 of the Civil Procedure Code. In support of his contentions he relied on a decision of the Supreme Court reported in AIR 2005 SC 439 - Janki Vashdeo Bhagwani and another v. Indus Ind. Bank Ltd. and others. The Hon'ble Supreme Court has held as under :
"Order 3 Rule 1 and 2 empowers the holder of power of attorney to 'act' on behalf of the principal. The word 'acts' employed in Order 3 Rule 1 and 2, 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. 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 principal is entitled to be cross-examined. [Para 12]"
6. He further contended that land lady filed a eviction suit in 1985 against the petitioner which was dismissed on 13.12.2000 in non-appearance and again she filed the present application in August 2001 which shows that she had no bona fide need and the order of the authority is not a speaking one he only reproduced the evidence and did not decide any thing and relied on AIR 1981 SC 1711.
7. The learned counsel for the respondent has submitted that order of the authority is as per law based on evid
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