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2009 Supreme(MP) 667
A.M. Naik, J.
Sahibram Dhingra (d) through LR v. Shivshankar Goyal
Second Appeal No.404 of 2008 (Gwalior) : against the judgment and
decree of I Additional District Judge, Shivpuri, passed in
Civil Appeal No. 7-A of 2008; Decided on : 30.6.2009.
R.C. Khanna with EA. Shah for appellant;
V.K.Bharadwaj with Anand Bharadwaj for respondent.
Headnote:(1) Civil P.C., 1908 -- O.3 R.1 -- holder of power of attorney -- may appear and depose the facts which are in his personal knowledge -- he cannot depose the facts which are in the knowledge of his Principal.
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. 2005(2) Civil Court Cases 324 followed. 2004(2) Civil Court Cases 364 and 2000(2) Civil Court cases 606 relied on. [Para 12
(2) Accommodation Control Act, 1961(M.P.) -- S.12(1)(c) -accommodation held for residential purpose u one of the rooms started using for STD/PCO -- it is inconsistent -- tenant liable to be ejected under.
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 nond`residential 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. 2002(2) RCR 177, AIR 1978 SC 1601, AIR2001 SC1684 and 1993 AIR SCW 643 distinguished. 2005(2) JLJ 149, 1991(II) MPWN 22, 2000(1) MPHT 15 (NOC), 1997 MPACJ 158 and 1979 MP RCJ 110 relied on. [Para 16
¼1½ flfoy izfdz;k lafgrk] 1908 && vk-3 fu-1 rFkk && eq[rkjukek /kkjd && milatkr gks ldrk gS rFkk mu rF;ksa ds ckjs esa rFkk mu rF;ksa ds ckjs esa vfHklk{; ns ldrk gS tks mlds O;fDrxr Kku esa gS && og mu rF;ksa dk vfHklk{; ugha ns ldrk tks mlds ekfyd ds Kku esa gSA
;g LFkkfir jk; dh Hkk¡fr ekuk tk ldrk gS fd oknh dk eq[r;kjukek /kkjd milatkr gks ldrk gS vkSj dsoy mu rF;ksa ds ckjs es vfHklk{; ns ldrk gS tks mlds O;fDrxr Kku esa gS rFkk og oknh dh vksj ls mu rF;ksa dk vfHklk{; nsus ds fy, milatkr ugha gks ldrk tks vuU; :i ls oknh ds O;fDrxr Kku esa gSA 2005¼2½ flfoy dksVZ dslst 324 vuqlfjrA 2004¼2½ flfoy dksVZ dslst 364 rFkk 2000¼2½ flfoy dksVZ dslst 606 voyafcrA
¼2½ LFkku fu;a=.k vf/kfu;e] 1961 ¼e-iz-½ && /kkjk 12¼1½¼10½ && LFkku vkoklh; iz;kstu ds fy, fn;k Fkk && dejksa esa ls ,d es ,l Vh Mh@ih lh vks izkjaHk dj fn;k x;k && ;g vlaxr gS && vfHk/kkjh csn[ky fd, tkus ;ksX;A
izLrqr ekeys es ;g fooknxr ugha gS fd vfHk/kkjh ds okn ifjlj esa vkoklh; iz;kstu ds fy, yk;k x;k rFkk iwoZ es og mles fuokl djrk FkkA ;g o"kZ 2000 esa gh Fkk] tc vfHk/kkjh us vfHk/k`r ds ifjlj ds dejksa es ls ,d dks ,l Vh Mh@ih lh vks dsanz gsrq iz;ksx djus ds fy, ifjofrZr dj fy;k] tks Li"V :i ls vfHk/k`fr ds iz;kstu ls vlaxr Fkk ftlds fy, mls j[kk x;k Fkk A vfHk/kkjh dk ,dek= vlaxr dk;Z can[kyh ds fy, vk/kkj lkkfcr djus ds fy, i;kZIr gks ldrk gS ijarq og dk;Z egRoiw.kZ gksuk pkfg,A 2002¼2½ vkj lh vkj 177] , vkb vkj 1978 ,l lh 1601] , vkb vkj 2001 ,l lh 1684 rFkk 1993 , vkb vkj ,l lh MDY;w 643 izHksfnrA 2005¼2½ ts ,y ts 149] e-iz- ohDyh uksV~l 22] 2000¼1½ ,e ih ,p Vh 15 ,u vks lh] 1997 ,e ih , lh ts 158 rFkk 1979 ,e ih vkj lh ts 110 voyafcrA ¼iSjk 16½
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 (i.e. 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. The STD/PCO dealership was obtained from Airtel Company which is revealed in the computerized bill No.205468243 dated 2.10.2004 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 nor 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 up to 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. Bharadwaj, Senior 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 of 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.
