IN THE HIGH COURT OF JUEICJi.TURE CHHATTISGA® AT BILASPUR C.R.NO. '^0 /2005 APP.i.ilCAlTC (TENAN?) i4.-^' .^y^ ,H%^-^ s Narendra Sharma ••"' S/o Shiv Bhagvan Sharma, Aged about 39 years, R/o Kallash Nagar,Ranjnandgaon District-Rajnandga©n (CG) • ^'^"' ...-••" '^•••""' e?° . HQM^APPLIC^S (Land-lord) Versus ^> Smt. Hansagouri W/o Late Shri Gunwant Rai Jani, Through power of Attorney Shri Mahesh Kumar R/o Kamthi Line, Raj'nandgaon District-S.ajnanagaon (CG) • CIVIL Ki.VI SION UNDER SEC'riuN~23-E,QF_'rH£ CHHATTISGARH ACCOiWOufSIOS ACT >.-< •^ ^. Snde Bench:- j-tonlbie SiriJystice_Uiirendra Mjs.to jvi! f^vjsion No. 30 of 2 rt. Petitioner by Shri P.Diwakar, Sr.Advocate with Shri Anup Majumdar, Advocate. Respondetn by Shri B.P.Gupta, AdvocaSs. ony/05,'2006) The petitioner/tenant has preferred this civil revision under Section 23-E of the Chhattisgarh Accommodation Control Act (hereinafter referred to as 'the Act') against ths order of eviction datsd 03.01.2005 passed in Cass in No. 09-A/90, year 2000, by the Rent Controlling Authority, Rajnandgaon. Srief facts of the case are that the respondent/landlord filed an appllcatlon under Sectlon 23-A of the Act for eviction of the petitioner/tenant on the jround of bonafide necessity stating that the suit accommodation was pven on a monthly rent of Rs. 2.700/- to the petitioner'tenant fur a period of 11 months w.e.f. 10.12.1998 and the petitioner has not paid the rent- from January 1999 to January 2000 amounting Rs. 32.400/-. It was stated in the application that she is a widow and the owner of the suit house and she bonafldely requires the abo'/e accommodatlon for openmg of wholesa!®business and for that purpose she 'A'i!! do hsr business •with th< help of har son namely Mahesh Kumar Jani who had served registered notice to the petitioner which rsmained unreplied. It is aiso stated in the appiication that the respondent/'landiord does not have any suitable non- residentialvaeant accommodation in the corporation area. This application dated 21.02.2000 v/as flled by the respondent/Iandlord through her son Mahesh Kumar Jani as being the power of attorney hoider and a!ong wlth •"t%s"sy°^^swfs'^s^y^gf^y^Kgsssssss^s -2- o tnis application a general power of attorney exeeuted by the respondent/landlord in favour of her son was also filed. After filing of the above application, notice was Issued for appearance of petitioner and he appeared before the Tribunal on 16.03.2000 through his counsef and the matter was posted for reply on 10.04.2004. Howsver, the petitioner dld not file his repiy and fiied an application under Order 6 Rule 5 of the C.P.C. on 12.05.2000 and on this date respondent/iandlord also moved an application for ejectment of the petitioner. Thereafter, arguments were heard on both these applications on 27.02.2001 and the tearned Tribunal vide order dated 09.04.2001 closad the right of the petitioner $o defend and fixed the for evidence of th< respondent/iandlord- The petitioner preferred a revision under Section 23-C of the Acl against fhe above order of ciosing his right to defend his case. This Court vlde order a'ated 19.07.2001 passed in C.R.No. 456/01 direeted that th< proceedings before the triat Court may go on but no final order shaii be passed. The evidence was reoorded on 11.06.2001 but however the petitioner was not permitted to cross examine the witnesses of the respondent/landlord on the ground that the defence of the petltioner has been struck off. This Court vlde order dated 12.02.2004 passed in C.R.No. 456/01 vacated the stay order grarrted earlier on the ground that arrears of rent has not been paid- After vacating of the stay order by the High Court, both the parties were given an opportunity of haaring for arguments and thereafter impugned order was passed on 03.01.2005 by the trial Court. Learned counsel for the petitioner submits that though the defence of the present petitioner was struok off by the Tribunai even then, the respondent/landlord was required to prove that she needed the suit pr'emises bonafidely. It is submitted that the respondent/landlord did not mter Intp the witness-box and in her p!ace her son Mahesh Kumar Jani, the general povi/er of attorney holder, n'as examined. Learned counsel for the petitloner argues that even the power of attorney fiied by him, does not specificalty authorize the power of attorney holder to prosecute the case. Relying upon the judgment of the Hon'ble Apex Court reported in ASR 2005 SC 439 in the matter of Je.Rfa' y^Acfco Bhoiwani and anwther Vs. 1 -3- Indusnd Bank L^ ano' oftws submits that power of attorney does not authorize the power of attorney holder to depose in place and insfead of principai. Thus, the landlord has failed to prove her bonafide need and learned Tribunal ought to have dismissed the above application on this iround aiso. It is further argued that the respondent/landlord has not fiied any affidavit in support of the application preferred and further that from perusai of the impugned order it would be clear that leamed Tribunal has not disoussed the svidence available on record Vi/hile allovi/ing the application of the respondent/landlord for eviction of the petitioner. On the other hand, iearned counse! for the respondent/iandiord submitted that evsn after service of notice of the proceedings, the petitioner did noi seek permission within 15 days from the date of sen/iee of summons and as per provisions of Section 23-C of the Act, in defauit of obtaining leave to dsfend, the statement made by the landlord in the eviction appiication is to be deemed to be admitted by the tenant and the iearned Tribunal was duty bound to pass eviction order against She tenant from the suit accommodatlon. Learned counsel for the respondent/'landiord further submits that thera is no ground availabie to the petitioner as provided under Seotion 23-E of the Act. Learned counsel for the landiord submits that as per provisions of Section 23-H of the Act, provisions of Section 13 of the Act is to apply "mutatis mutandis" in respect of an application for recovery of possession of accommodation under Section 23-A and in respect to proceedings for revision undsr Section 23-E of the Acl aiso. It is also submitted that the pstiiioner has not paid the rent sincs January 1999 till date whieh has been admitted by the petitioner before this Court and therefore, as per provlsions of Section 23-H of the Act, the petitioner cannot be permitted to prosecute the instant revision. Learned counsel for the respondent/landlord submits that as far as ob}ection of the petitioner that he did not examine Smt. Hansagouri, the landlord..during proceedings and further objectlon that the holder of powsr of attomay.cannot depose In place of principal are concerned, it Is evident from the materiai availabie on records that the patitioner did not raise any objection on the above ground before ths Tribunai, therefore, he v/as preciuded from raising such objectlons and further that the judgment cited by the petitioner mentions that the holder of power of attorney cannot 1 -4- depose on those facts which are in the exclusive knowtedge of the principal whereas in the present ease, the power of attorney holder is the son of the applicant with whose assistance the proposed business is to be run by the landlord, Relying upon the judgment of the Hon'ble Apex Court sc 76_m the matter of V®. Mohinder Kaur itooal and anather it is submitted that the iegislative intent is clear that if an application for eviction of a tenant is filed by a widow for herself oocupation, the Rent Controliing Authority shouid pass an order for eviction with utmost expeditlon. The purpose behind this enactment te to serve the sociai need to help a widow in gettini possession of the premsses required for her personal occupatlon. !t further submitted that the legislat'ure has placed heavy burden on the tenant to satisry the Rant Controliing Authority 6y filing an affidavit statini such facts which, if believed, wili sufficiently prove that the plea of need of personal oc.cupation by the petitioner/widow is nothing but a pretenee and the leave as provided under Section 23-C of the Act is not granted and the order of evictlon may be passed solely on the basis.of averments ofthe fandlord. I have heard learned counsel for the parties and have gone through the records of both the Courts below and have also perused the impugned order. So far as the contention of the petitioner/tenant that the respondent/landlord has failed to prove the bonafide necessity on the ground that she did not enter to witness box and the holder of power of attorney cannot depose in piace of her is concerned, 1 am of the opinion that from, a bare perusa! of Section 23-C of the Act, it is clear that in the absence of appiication for leave to defend supported by an affidavit, Rent Controliing Authority is competent to pass an order of eviction of the tenant from the suit aooommodation as the averments of the iandiord in the- application for eviction is to be deemed to be admitted by the tenant. Eve" .athenA/ise, in the present cass the alone son of the petitionsr has been examined as a witness and even as per Section 23-D sub-section (3) of the Act, an application filed by a landlord under Sub-ciause (a) or Clause (b) of Section 23-A, bonafide necessity of the iandlord is to bs presumed unless oontrary is proved by the tenant. Thus, in the absenoe of any pleading or proof and in the absence of leave to defend, the 1 ww ^s'^s'1 <33' .5- Tribunal could have passed an order of eviction only on the basis of the application of the landlord. And further considering the submission of the respondent/landlord that the petttioner has not paid the rent from January 1999 till date and thus, he eannot be permitted to prosecute the revision proceedings before this Court as the provisions of Section 13 of the Aci are applicabie to the proceedings under Section 23-A of the Act as also the proceedings for revision under Section 23-E sf the Act, 1 am of the opinion that the Instant civil revision preferred by the petitioner u.nder Section 23-E of the Act is devoid of merit and the same is liabie for dismissai and accordingiy, rsvision is dismissed with costs. ————— —_ iv. the Sd/- Dhirendra Mishra Judge ^