IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR -------------------------------------------------------- CIVIL SECOND APPEAL No. 212 of 2006 PREM SINGH BOHRA V/S SETH MURLIDHAR MANSINGHKA CHARITY & ORS. Mr. PANKAJ KUMAR BOHRA, for the appellant / petitioner Mr. MANOJ BOHRA for Mr. KN JOSHI, for the respondent Date of Order : 21.9.2007 HON'BLE SHRI N P GUPTA,J. ORDER ----- Heard learned counsel for the parties, and perused the impugned judgments and the record as requisitioned. The two learned courts below have decreed the suit for eviction. Suit was filed for eviction, claiming the tenancy to have been terminated by giving one month's notice, in accordance with the terms of the lease deed, and despite expiry of notice period, the possession was not given, therefore, suit was filed. It was also alleged, that the tenant has not paid rent since August, 1993. The plaintiff is a public trust. Defendant contested the suit, claiming no rent to be outstanding. It was denied that any notice was received, and it was pleaded, that notice is not valid, and is not in accordance with law, and thereby tenancy is not terminated. It was also pleaded, that at the relevant time the rights of the tenant were protected, under the Rajasthan Premises (Control of Rent & Eviction) Act, hereafter to be referred as the Act, and therefore, the tenancy cannot be determined. It was also pleaded, that rent upto February 2000 has been tendered and deposited. Then, it was pleaded that the tenancy is a permanent lease, and therefore, neither suit can be filed for eviction, nor it can be determined by giving notice. Learned trial court framed four issues. Issue no. 1 was about the defendant having committed default; issue no. 2 was about the tenancy having been determined by giving notice dt. 20.9.1993; then, issue no. 3 was as to whether the defendant was inducted as a permanent tenant, and issue no. 4 was about relief. The parties led oral as well as documentary evidence. On the side of the plaintiff P.W. 1 Bhanwarlal was examined, who is an employee of the plaintiff trust, as a manager since 1958. The tenancy is since 1.9.1964. This witness has proved the rent note Ex.1, and signatures of the defendant thereon at A to B, and has deposed, that after expiry of the lease deed he did not vacate then notice was got served, copy whereof is Ex.-2, and acknowledgement receipt thereof is Ex.-3, bearing signature of the defendant at A to B. He has also deposed, that the 2 plaintiff had given him a power of attorney, and authorised to conduct the case. In cross-examination some questions were asked about the stamp and date etc. of Ex.1, and the date of purchase of stamp etc. The witness had denied the defendant to be permanent tenant, and that, when the Chabutari was let out, a wooden cabin was placed by the defendant. Then, he has admitted that power of attorney has not been produced, and has maintained that notice Ex. -2 was given by the advocate Mr. Gupta, and denied it to have not been received by the defendant, and has also denied that it does not bear the signatures of the defendant. Then, defendant also appeared as D.W.1, and interalia deposed, that rent receipts are from Ex. A-1 to A-4, and that the money is deposited upto 28.2.2004. He has denied the notice Ex.P-2, and denied the signatures on Ex.P-3. He has deposed that Bhanwarlal had no right to file the suit, and give evidence, and he has deposed that he had never paid rent to Bhanwarlal. Then, in cross-examination he has deposed, that he has not accepted the trust to be landlord, and has deposed, that he has taken the shop on rent from Murlidhar, who died 40 years back. Admitting the signatures A to B on the rent note, he has maintained, that the trust is not the landlord. Then, in cross-examination, he was again confronted by his signatures A to B on Ex.A-3, which he denied. Then, he has admitted, that rent receipts were being issued by Bhanwarlal (P.W.1), the rent was collected by him, and is being collected by him. On record Ex.4 has been produced, being the certificate of the registration of 3 the trust, and copy of the gazette notification dt. 6.7.1991 has been produced, whereby the plaintiff trust has been given exemption, from the provisions of the Act. In view of the fact that the premises are exempted from the Act, issue no. 1 becomes academic only. Then, since signatures are admitted on the rent note, the only question survives is about issue no. 2, and the learned trial court found issue no. 2 in favour of the plaintiff, by believing the notice to have been sent and served, and to be valid. Then, regarding issue no. 3 it was found, that the burden was on the defendant, and the defendant has not led any evidence in this regard at all. In appeal application under O. 41 Rule 27 was filed, to produce documents, to show, that the rent was deposited. The learned lower Appellate Court did not take the documents on record. However, in my view, the documents are not relevant, inasmuch as the premises are exempted from the provisions of the Act. It has been held by the learned lower Appellate Court, that in view of the fact, that provisions of the Act do not apply, the question of default need not be examined. Then, coming to issue no. 2 the learned lower Appellate Court found, that the appellant has contested the notice, only to be invalid, on the ground, that since the provisions of the Act apply, the notice could not be said to be valid. Then it has been found, that since the Act is not applicable, and no other illegality has been shown, the finding of the learned trial court was 4 affirmed. Likewise the finding on issue no. 3 was also affirmed. The appeal was argued in two installments. In the first instance the learned counsel argued, that in the present case the plaintiffs have not appeared in the witness box, and only Bhanwarlal P.W.1 has appeared, claiming to be power of attorney, while power of attorney has not been produced, therefore, the evidence of Bhanwarlal could not be considered. The learned counsel relied upon the judgments in, Shambhu Dutt Shastri Vs. State of Rajasthan reported in 1986(2) WLN-713, and Janki Vashdeo Bhojwani Vs. Indusind Bank, reported in AIR 2005 SC-439. Learned counsel for the respondent, on the other hand submitted, that P.W.1 has appeared as witness of fact. P.W.1 is working as manager in the trust since 1958, which fact has not been assailed in cross-examination, except asking that there is no written appointment order, but then the witness has maintained, that it is mentioned in the minutes book. However, it is admitted by the defendant, as D.W.1 himself, that it is this witness P.W.1, who collects the money, and issues receipts. Thus, admittedly this person P.W.1 has knowledge of facts. The other submission made was, that even if the power of attorney was not produced, that was mere irregularity, and on that ground the decree cannot be set aside. 5 In rejoinder the learned counsel for the appellant wanted to maintain same stand, about capacity of the witness P.W.1, so as to entitle the plaintiff to maintain the suit. After closure of the arguments, when I was to dictate the order, learned counsel for the appellant again stood up, and stated, that he has more submissions to make, as so far argument was made on only one aspect of the matter, and asked the Court that he would argue for about one hour. It may be observed that after the arguments of the learned counsel for the appellant were concluded, then only the learned counsel for the respondent was called upon, and after conclusion of his arguments the learned counsel made submissions in rejoinder, and after that I started to dictate the order. To standup at that point, and to contend that the learned counsel had argued on one aspect only, is nothing less then browbeating the court or to hold it at ransom, as according to the learned counsel, if the court is not inclined to accept his submissions, then he has the right to hold up the court like this. Anyway, bearing benevolence he was allowed to argue, as the learned counsel being not much senior, he might make out some good point in support of the appeal. However by the way I asked the learned counsel as to how much more time he is likely to take to make his submissions, and the learned counsel, making a typical sarcastic face, said that he would take about one hour, and 6 that if the court has any other urgent matter, his matter may be adjourned, obviously as he is having an interim stay. But then, while arguing, the only submission made was, that from the lease deed Ex.-1, it appears, that the lease was for a period of 11 months, and after expiry of those 11 months, since the appellant continued in possession, he becomes tenant holding over, and that, to any such person holding over, the old terms of tenancy continue to apply, and that in that view, the notice for termination of tenancy given under Section 106 of the Transfer of Property Act was not enough, but notice under Section 111(g) of the Transfer of Property Act was required to be given. Learned counsel read to me para-10 and 11 of the rent note. In para-10 the lessor has a right to forfeit the tenancy and re-enter in the possession, in the event of breach of any of the condition of the tenancy, while in para-11 it is stipulated, that if the tenant wants to vacate the premises, he will have to give one month's notice, and if the landlord wants to have the premises vacated, he will also give one month's notice. It was contended, that on the face of these conditions, notice under Section 111(g) was required to be given, and in that event, the appellant was entitled to benefit against the forfeiture, under Section 114, and the notice under Section 106 cannot entitle the plaintiff to decree for eviction. Learned counsel then read, obviously, unnecessarily 7 numerous judgments, none of which held that in such circumstances tenancy cannot be determined by type of notice, as given in the present case, be that as it may. After arguing for half an hour, learned counsel concluded. I have considered the submissions, and as noticed above, have perused the record. In my view, no legal authority has been cited to show, that it is always necessary for the plaintiff himself to appear in the witness box, irrespective of the fact, that the plaintiff, as such, may not be personally aware of any fact, or that, if a person personally aware of the facts, comes in the witness box, and proves those facts, still the plaintiff cannot get the decree in the suit. The two judgments cited are on different points, inasmuch as, Hon'ble the Supreme Court, in Janki Vashdeo Bhojwani's case has held, that if the power of attorney has rendered some acts in pursuance of the 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 can not 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. Likewise in Shambhu Dutt Shastri's case this Court has held that power of attorney can appear in his own capacity. But then neither of these judgments hold, or are of any use, to support the proposition, that Bhanwarlal could not be examined to 8 depose the facts, which were in his personal knowledge, as in the present case, the rent note was executed in his presence, rather it was scribed by himself, and the defendant signed in his presence. Likewise admittedly it is this Bhanwarlal, who has been receiving rent from the defendant, and has been giving receipts also. In that view of the matter, the submission about incompetence of Bhanwarlal to appear in the witness box, and non- entitlement of the plaintiff to get decree on that basis, cannot be accepted. So far as the requirement of notice is concerned, it was not the plea raised in the written statement, nor the argument was made before any of the learned courts below. That apart notice Ex.-2 is perfectly in terms of para-11 of the rent note Ex.-1, and the plaintiff has not filed present suit on the basis of right under Section 111 (g). In that view of the matter, the submission made in this regard has no force. The appeal thus does not involve any substantial question of law. Considering the fact that after conclusion of the arguments of both the sides, when the order was being dictated, learned counsel again insisted on arguing the matter for one hour, as if the learned counsel has a right to holdup the whole system at a ransom, and unnecessarily detained the Court for about half an hour, the appeal is required to be dismissed with exemplary 9 costs. The appeal is therefore dismissed with a cost of Rs. 10,000/-. The amount of this cost be recovered from the appellant, and be credited to the fund of the State Legal Services Authority. ( N P GUPTA ),J. /sushil/ 10