IN THE COURT OF SH. S.S. MALHOTRA : ADDL. RENT CONTROLLER : KARKARDOOMA COURTS DELHI. Suit No. E 39/06 IN THE MATTER OF:- Sh. [ENTITY], S/o Sh. [ENTITY], R/o 1/2049, Durga Mandir Marg, Near Shanti Building, Modern Shahdara, Ram Nagar, Delhi-110032 At present residing at : 34, Leeds Road Slaugh English, U.K. Through :- Sh. [ENTITY] (previous attorney), now through present Attorney :- Sh. [ENTITY], S/o Sh. Amarjit Singh, R/o Village Badala Khurd, District Kapurthala, Punjab. Petitioner Versus Sh. [ENTITY] S/o Sh. [ENTITY] R/o 1/2049, Ram Nagar, Durga Mandir Marg, Shahdara, Delhi-110032. Respondent
Date of judgment : 7.4.07
1. By this judgment I shall dispose off the petition of the petitioner (filed through Sh. [ENTITY], attorney who was attorney at the time of filing petition, but subsequently petition was amended by which the attorney was replaced from Sh. [ENTITY] to Sh. [ENTITY]) under [SECTION] of [ACT] for eviction of the respondent from the tenanted premises i.e. one room and kitchen on the ground floor in premises bearing No. 1/2049, Ram Nagar, Durga Mandir Marg, Shahdara, Delhi-32, hereinafter called the tenanted/suit property.
2. Brief facts stated by the petitioner through attorney, in his petition are that he is landlord/owner and the respondent is a tenant under him with respect to the tenanted premises @ Rs.800/- p.m., excluding electricity, water and other charges. It is further submitted that the premises was let out on or before 1.12.97 by the previous landlord Sh. [ENTITY] by way of oral agreement and subsequently the present petitioner has purchased the property on 13.11.2000 through registered sale deed and consequently said [ENTITY] has become owner of the suit premises and information of this transaction was given to the said tenant through Sh. [ENTITY] by regd. AD and [ACT]. It is further submitted that notice dt. 27.1.01 was also issued by Sh. [ENTITY] to the respondent thereby informing her about change of ownership and requesting her to pay the rent of the tenanted premises to the petitioner or Sh. [ENTITY] who is the landlord. It is further submitted that there was no change of status of Sh. [ENTITY] who was entitled to receive the rent prior to 13.11.2000 and is entitled to receive the rent at present as landlord being the general attorney of the petitioner. It is further submitted that respondent is in arrears of rent since 1.4.98 which he has not paid despite service of legal notice dt. 26.3.01 issued by the petitioner though his counsel and as such respondent is liable to be evicted and therefore, eviction order may be passed in favour of the petitioner and against the respondent in respect of suit property.
3. The respondent has filed written statement taking preliminary objections that that petition is not maintainable on various grounds, inter alia, that it is not properly signed and verified in accordance with law, said [ENTITY] has no locus standi to file and verify the present petition and even the same is not maintainable in the eyes of law and on the facts.
On merits, relationship of landlord and tenant is denied and it is denied that Sh. [ENTITY] is the landlord. However, the respondent is tenant in the suit premises is not denied. The extent of accommodation is also denied and it is submitted that apart from the portion shown by the petitioner, the respondent is also a tenant with respect to common latrine and bathroom. The rate of rent is also denied and it is submitted that it is not Rs. 800/- p.m. rather it is Rs. 300/- p.m. only. It is also denied that premises was let out to the tenant by the present landlord through oral agreement and it is submitted that respondent is a tenant under Sh. [ENTITY] since 1992. It is also denied that respondent has not paid rent till date as alleged and it is submitted that the rent was deposited for the period running from January, 2000 to May, 2000 @ Rs. 300/- and the respondent is in arrears of rent only w.e.f. June, 2000 @ Rs. 300/- p.m. and he is ready to make payment to the original owner. Notice which was issued by the petitioner is not denied and the change of ownership is denied and it is denied that Sh. [ENTITY] has ever sold the premises to Sh. [ENTITY] or that Sh. [ENTITY] is entitled to receive the rent as landlord and in these circumstances, it is submitted that petition of the petitioner may kindly be dismissed.
4. Replication was filed by the petitioner, wherein, the averments made in the written statement have been generally denied and those made in the petition have been reiterated and reaffirmed.
5. After completion of the pleadings order U/[SECTION] of the [ACT] was passed, thereby directing the respondent to make payment of arrears of rent @ Rs. 300/- p.m. w.e.f. June, 2000 and the parties were directed to lead evidence.
6. The petitioner has examined Sh. [ENTITY], his attorney as PW1, who filed his evidence on 7.8.03 and he further deposed on 23.2.04. The respondent has filed his evidence by way of affidavit on 29.4.04. There is yet another affidavit of the respondent filed on 31.1.07 and he was cross examined on 31.1.07 itself.
PW1 has deposed through attorney to the effect that he is attorney of Sh. [ENTITY] r/o 1/2051, Ram Nagar, Durga Mandir Marg, Shahdara, Delhi and Sh. [ENTITY] is son of Sh. [ENTITY] who executed a General Power of Attorney in his favour which is Ex. PW1/1, Sh. [ENTITY] is owner of premises No. 1/2051, Ram Nagar, Durga Mandir Marg, Shahdara, Delhi, the rented premises was let out to the respondent for the purpose of residence and the same is being used for the same purpose. He further deposed that respondent was inducted by Sh. [ENTITY] on or before 1.12.97 and the tenancy was created by oral agreement. The suit premises is consisting of one room and one kitchen on the ground floor and shown pink in the site plan, Ex. PW1/2. He further deposed that suit premises was let out @ Rs. 800/- p.m., exclusive of electricity and water charges. He further deposed that Sh. [ENTITY] became the owner through regd. sale deed of premises No. 1/2051, Ram Nagar, Durga Mandir Marg, Shahdara, Delhi and the same was sold by Sh. [ENTITY], attorney of Sh. [ENTITY] and the tenancy was attorned by a notice dt. 15.1.01 which was sent by regd. AD as well as [ACT], which are Ex. PW1/3 to Ex. PW1/5 respectively. He further deposed that a notice was also sent by Sh. [ENTITY] dt. 27.1.01 which notice is Ex. PW1/6 and postal receipt and [ACT] of the same are Ex. PW1/7 to Ex. PW1/8 in which Sh. [ENTITY] stated that he has become the owner of the property of the tenanted premises and it was requested to the respondent to make the payment of rent to the petitioner or his attorney. It is further submitted that Sh. [ENTITY] is entitled to receive the rent but the tenant has not tendered rent to him. It is further submitted that a notice dt. 26.3.01 was sent through counsel of Sh [ENTITY] which is Ex. PW1/9 and postal receipt and [ACT] of the same are Ex. PW1/10 and Ex. PW1/11. The tenant is stated to be in arrears of rent w.e.f. 1.6.99 and the sale deed is Ex. PW1/12.
He further deposed that he has filed present petition on behalf of [ENTITY] since he is his nephew. On court question, he submitted that he has a attorney executed in his favour by [ENTITY] which is Ex. PW1/DA. He does not remember when the property was purchased by Sh. [ENTITY] and for how much. He further deposed that earlier Sh. [ENTITY] had also executed attorney in his favour and he can produce the same which he produced and the copy of the same is Ex. PW1/D/B. Sh. [ENTITY] never cancelled GPA dt. 5.4.2000. The respondent is in possession of one room, one kitchen, common bathroom and latrine as shown in pink colour. He got prepared the site plan by Architect, whose name he does not remembers as his lawyer had called him. He denied the suggestion that site plan was not prepared in his presence. He further deposed that the property is assessed to House Tax which is being paid but he can only tell the house tax after seeing the receipt. He has never informed the house tax authority regarding tenancy of [ENTITY] and [ENTITY]. He has no document to show the rate of rent or tenancy of both [ENTITY] and [ENTITY] and he volunteered that premises were let out on the basis of mutual goodwill (Bhaichara) and he had inducted the respondent as tenant. He cannot tell the exact date of inception of tenancy. He further deposed that [ENTITY] is in the premises for last 4/5 years and [ENTITY] is in the premises for the lat almost 7/8 years. He further deposed that it could be possible that [ENTITY] is a tenant in the tenanted premises since 1994. He does not remember the year when Sh. [ENTITY] expired. But he volunteered that he expired after executing sale deed in favour of Sh. [ENTITY] which was executed by Sh. [ENTITY] in his presence. He also cannot tell if the registration in respect of sale deed delayed on account of some 'No Objection Certificate'. He also does not remember after how many days Sh. [ENTITY] has executed GPA in his favour after purchasing the property, but he volunteered that it was within one month from the date of purchase of the property. But he admitted as correct that the said GPA was not prepared on the same date when the property was purchased. He further deposed that he is aware that rent is being deposited by [ENTITY]/[ENTITY] in the Court. But he denied the suggestion that the rent of the portion is Rs. 300/- p.m. He admitted as correct that his lawyer has drafted the petition, got it typed and filed in the court. On court question, he submitted that he is aware of the contents of the petition and he has signed the same after going through the same. He further deposed that he can only sign in English and can read Urdu only. He denied the suggestion that the area where the tenanted premises is situated was not fully developed in the year 1990. He denied the suggestion that the tenanted portion was not well constructed when given on rent. He further deposed that he has tenants even in his property. His portion consist of shops as well as residential. He further deposed that the chemist who is occupying since last 10-12 years and is paying Rs. 600/- p.m. and the residential portion on the back comprises of two rooms, kitchen, bathroom and toilet are under occupation of tenant last three years at a monthly rent of Rs. 3300/- and he can produce the document regarding tenancy i.e. rent agreement and he further deposed that the portion in occupation of the respondent is in better constructed position. He further deposed that the attorney of Sh. [ENTITY] executed in his favour bears the sign of Sh. [ENTITY] and his signatures. He does not remember who were the witnesses and who had signed the attorney, however he can tell the names after seeing the signatures.
7. The respondent himself as RW1 has deposed in his evidence that he is a tenant in respect of one room, one kitchen on the ground floor with common latrine and bathroom at a monthly rent of Rs. 300/- p.m. excluding other charges since 1994 under Sh. [ENTITY] and she has been paying rent regularly and after December, 1999 he has deposited rent in the court upto May, 2000 @ Rs. 300/- p.m. Thereafter, deponent has deposited rent @ Rs. 300/- p.m. excluding other charged regularly in the court. Sh. [ENTITY] has never sold the property to Sh. [ENTITY] and Sh. [ENTITY] is neither the owner nor the landlord of tenanted premises and the demand notice issued by the petitioner was duly replied vide Ex. DW1/A. In his cross-examination, RW1 has denied that the rent of the tenanted premises is Rs. 800/- p.m. and he is staying in the said premises since 1992 and she has taken the same from Sh. [ENTITY]. She further deposed that when Sh. [ENTITY] refused to accept the rent in January, 2000 and Sh. [ENTITY] never told him that property in question had been sold to Sh. [ENTITY] and therefore, future rent is payable to Sh. [ENTITY]. He denied the suggestion that he is in arrears of rent or that sh. [ENTITY] has issued a notice dt. 15.1.01 to him informing her that [ENTITY] has sold the property to Sh. [ENTITY]. He denied the suggestion that rate of rent is Rs. 800/- p.m. or he has not paid the rent within a period of two months after service of legal notice.
8. I have heard the arguments and perused the record.
9. To succeed in the case U/[SECTION] of [ACT] the landlord / petitioner is required to prove the following ingredients :-
a. Relationship of landlord and tenant. b. Service of notice of demand for the arrears of rent by the landlord upon the tenant; and c. Existence of arrears of rent legally recoverable on the date of service of notice of demand. d. Non payment / tender of the whole of the arrears of rent legally recoverable from the tenant within two months of the service of the notice of demand.
10. Now coming to the first ingredient i.e. the relationship of landlord and tenant in between the parties. The petitioner is admittedly not residing in India and he has deposed through attorney that he is landlord and owner of the tenanted premises through attorney Sh. [ENTITY]. The relationship of landlord and tenant has been denied by the respondent. Sh. [ENTITY] has appeared in witness box and has deposed as PW1. He has deposed that he is attorney of the petitioner, Sh. [ENTITY] and earlier he was attorney of his father Sh. [ENTITY]. The attorney given in his favour is Ex. PW1/1 and as such he is deposing on the basis of the petitioner. It is also matter of record that the said attorney of the petitioner has died subsequently and an application was moved by the petitioner U/0 [SECTION] [ACT] with a prayer that title be allowed to be amended with the necessary amendment with respect to name of the attorney of the petitioner and he also wanted to make some amendment in para 19 of petition by stating that attorney Sh. [ENTITY] has died on 26.9.04 and after his death, Power of Attorney has been executed in favour of Sh. [ENTITY]. No reply to that application was filed by the respondent. Amended Power of Attorney was filed by Sh. [ENTITY] in favour of Sh. [ENTITY] and the amendment was also allowed by the Court by its order dt. 26.4.05. However, it is also matter of record that the said Sh. [ENTITY] had already been examined and cross examined by Ld. counsel for the respondent and said Sh. [ENTITY], the new attorney has not appeared in witness box to depose and he only pursued the petition from the stage from where it was left by the attorney Sh. [ENTITY]. Admittedly, the landlord/owner has not entered into witness box. The respondent has denied the relationship of landlord and tenant and to prove this fact the witness Sh. [ENTITY] has appeared in witness box and has deposed that the petitioner is owner of property No. 1/2051, Ram Nagar, Durga Mandir Marg, Shahdara, Delhi. This is not the correct fact. The sale deed which is filed on record and the premises under which the respondent is a tenant is not this premises. The tenanted premises is having No. 1/2049, Ram Nagar, Durga Mandir Marg, Shahdara, Delhi. This is the fact which is quite contradictory with respect to petition and it appears to the Court that petitioner himself was required to appear before the Court to depose. It is well settled law that an attorney cannot depose on behalf of principal with respect to facts which are within the specific knowledge of the landlord and even otherwise he cannot depose for principal in respect of matter which only the principal can have a personal knowledge and in respect of which the principal is entitled to be cross examined.
The law in this respect is very clear as it was inter alia held in [PRECEDENT] :-
[SECTION] [ACT], empowers the holder of the power of attorney to "act" on behalf of principal. In our view the word "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. In other words, 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.
In the case of [PRECEDENT] observed at page 583 SCC that "where a party to the suit does not appear in the witness box and states his own case on oath and does not offer himself to be cross examined by the other side, a presumption would arise that the case set up by him is not correct"
In case of [PRECEDENT], it was held that a general power of attorney holder can appear, plead and act on behalf of the party but he cannot become a witness on behalf of the party. He can only appear in his own capactiy. No one can delegate the power to appear in witness box on behalf of himself. To appear in a witness box is altogether a different act. A general power of attorney holder cannot be allowed to appear as a witness on behalf of the plaintiff i the capacity of the plaintiff.
The aforesaid judgment was quoted with the approval in the case of [PRECEDENT]. It was held that the word "acts" used in [SECTION] of the [ACT] does not include the act of power of attorney holder to appear as a witness on behalf of a party. Power of attorney holder of a party can appear only as a witness in his personal capacity and whatever knowledge he has about the case he can state on oath but he cannot appear as a witness on behalf of the party in the capacity of that party. If the plaintiff is unable to appear in the court, a commission for recording his evidence may be issued under the relevant provisions of the [ACT].
11. Now coming to the facts of the present case. It is matter of record that Sh. [ENTITY] had appeared before the Court, but his statement is not with respect to relationship of landlord and tenant in between the parties or with respect to service of legal notice or with respect to arrears of rent. He has only deposed with respect to the fact that earlier Sh. [ENTITY] was attorney and after the death of Sh. [ENTITY] he is appointing Sh. [ENTITY] as his attorney.
12. The witness i.e. PW1 is not aware as to where the respondent is a tenant and which property was purchased by the petitioner. He is not a witness to the rate of rent, nor a witness with respect to creation of landlord and tenant relationship. Therefore, the court is of the opinion that petitioner has not been able to prove that he is landlord/owner of the property No. 1/2049, Ram Nagar, Durga Mandir Marg, Shahdara, Delhi. Further, Power of Attorney which is executed by said Sh. [ENTITY] in favour of Sh. [ENTITY] also does not even authorize the attorney to depose before the court and the only power which is given by sh. [ENTITY] to the attorney Sh. [ENTITY] is to the effect that the attorney is authorize to give statement orally or written before the court or authorities. Such an authority do not grant the attorney to depose before the Court is view of judgment [PRECEDENT] (Supra). Therefore, the petitioner has failed to prove that he is the landlord of the tenanted premises i.e. 1/2049, Ram Nagar, Durga Mandir Marg, Shahdara, Delhi-32 qua the respondent.
13. Now coming to the fact whether the petitioner has issued a legal demand notice to the respondent. Legal demand Notice dt. 26.3.01 has not been disputed by the respondent and thus the same does not require much deliberation.
14. Now coming to the fact whether there was arrears of rent on the date of service of legal demand notice upon the respondent. The petitioner has claimed rent @ Rs. 800/- p.m. from 1.4.98. This fact is denied by the respondent by stating that rent has been paid upto December, 1999, and thereafter Sh. [ENTITY] refused to accept the rent and it was deposited in the court. To prove this fact, the petitioner has deposed before the court and it has already been held that Sh. [ENTITY] has failed to depose before the court with respect to material facts. Even otherwise, this witness is not aware as to on which date the premises was let out as in the petition he submits that premises was let out on or before 1.12.97. Therefore, the court is of the opinion that such statement of the attorney is too vague to be considered and therefore, the petitioner has not been able to prove that what is the rate of rent and from which date the respondent is in arrears of rent as he himself has not been able to prove the relationship of landlord and tenant.
15. In view of the aforesaid discussions, it is held that the petitioner has not been able to prove his case U/[SECTION] of the [ACT]. The petition is accordingly dismissed. However, the arrears of rent deposited by the respondent in the present suit would remain deposited in the court and the same would be disbursed to the rightful person/owner/landlord of the tenanted premises. No order as to cost. File be consigned to the record room.
([ENTITY]) ADDL. RENT CONTROLLER Announced in the open court KKD COURTS, DELHI. On 7.4.07