^- «-- y <?- ^' HIGH COURT OF CHHATTISGARH AT BILASPUR SinaleBench : Hon'bleShrLDilip Raosaheb Deshmukh. J. Second Appeal No.167 of 2007 M/s. Raipur Litho Works yersus Smt. Meenakshi Gupta ORDER Postfor 10-12-2008 1 Sd/- DU4> Raosaheb Deshmukh Judge HIGH COURT OF CHHATTISGARHAT BILASPUR Single Bench : Hon'ble Shri Dilip Raosaheb Deshmukh Second Appeal No. 167 of 2007 APPELLANT (Defendant) M/s. Raipur Litho Works, a partnership firm duly registered under the relevant provisions of Partnership Act, 1956, having its office at House No. 16/597, Mahatma Gandhi Road, Raipur, Through its Partner Shri Ashok Rathore. Vs. RESPONDENTS (Plaintiff) Smt. Meenakshi Gupta, aged about 60 years, wife of Shri Bhirtisen Gupta, resident of Raja Talab, Raipur. ,/<" APPEAL UNDER SECTION 100 OF THE CODE OF CIVIL PROCEDURE. 1908 Present: Shri B.P.Sharma with Shri K. Sharma, counsel forthe appellant. Shri G.D.Vaswani with Shri A.K.Trivedi, counsel for the respondent. ORDER (Passed on this 10th day of December, 2008) Shri B.P.Sharma, learned counsel for the appellant was heard on admission. 2. Record of Civil Suit No.160A/2002 and Civil Appeal No. 4A/2006 is perused. 3. This is the defendant/tenants second appeal. ^^r^sss^QTf. /£sn!^'i <^ I i,. ^ "11 S '^••^/ 4. Civil Suit No.160A/2002 instituted by the respondent/plaintiff before the 6th Civil Judge, Class-1, Raipur (henceforth 'the trial Court') for eviction of the appellant herein on grounds under Sections 12(1)(f) and (h) of the Chhattisgarh Accommodation Control Act, 1961 (for brevity 'the Act') was decreed in favour of the respondent/plaintiff vide judgment and decree dated 24th November, 2006. Affirming the judgment and decree passed by the trial Court in toto, first appeal by the tenant (Civil Appeal No.4A/2006)'was dismissed by the 12th Additional District Judge (F.T.C.), Raipur (henceforth (the lower appellate Court') vide judgment and decree dated 18.04.2007. 5. Both the Courts below have held that respondent/plaintiff had proved that she required the House No. 15/517 situated in Jawaharnagar Ward, Raipur (for short 'the suit house') bona fide for starting the hotel business for her son Sanjay Gupta, who was a graduate and also for re- building the suit house for the Said purpose, which work could not be carried out without the suit house being vacated. 6. The grounds for admission of the appeal, as urged by Shri B. P. Sharma, learned counsel for the appellant, are as under: (i) It was urged by Shri B.P. Sharma, learned counsel for the appellant, that the grounds for eviction under Sections 12(1)(f) and (h) of the Act are mutually destructive of each other and landlord cannot seek eviction under both the provisions. In other words, once both the Courts below have upheld the ground for eviction ofthe respondent/plaintiff under Section 12(1)(h) ofthe Act, the tenant had a right of reentry under Section 18 of the Act, and stherefore, eviction of the tenant could not be ordered •———""T under Section 12(1)(f) of the Act. Reliance was placed on Smt. Parmeshwari Dewvs. ThakurNatthu Singh, 1998 (1) MPJR 462. (ii) Attention of the learned counsel for the appellant was drawn towards T.R.Sah s/o Doulatram Sah vs. Kundan Kaur wd/o Sardar Sadhusingh and others, 2006(1) M.P.L.J. 41, a decision rendered by a Division Bench of Madhya Pradesh High Court which has overruled Smt Parmeshwari Devi (supra). The Division Bench held as under: "The ground of eviction under section 12(1)(e) or (f) of the M.P. Accommodation Control Act on the one hand and ground of eviction under section 12(1)(g) or (h) on the other, are mutually exclusive with separate rights and obligations. When a suit is filed by a landlord under section 12(1)(e) and 12(1 )(h), pleading that he requires the accommodation for his own use and also states that he wants to demolish and reconstruct the building, and he establishes a case for eviction under section 12(1)(e), he will be entitled to an order under section 12(1)(e) and the averments relating to demolition and reconstruction will be construed as a part of ground under section 12(1)(e). In such an event, it will be immaterial whether he demolishes the building or not. When a Court grants an eviction under Clause (e), it shall dispose of the claim under Clause (h) as having become infructuous or rendered redundant. When granting a decree under section 12(1)(e), the question of applying section 12(7) or section 18 does not arise. On the other hand if the ground under section 12(1)(e) is rejected, then the Court may consider the ground under section 12(1)(h) independently subject to section 12(7) and section 18." (iii) Learned counsel for the appellant argued that the decision rendered in T-R.Sah (supra) by the High Court of Madhya Pradesh had persuasive value orty and was not binding on this Court, and therefore, a substantial question of law should be framed as there was no authoritative ^ pronouncement by this Court on this issue. However, the argument advanced by the learned counsel for the appellant is unacceptable because in Bhagwati Prasad Bajpai and others vs. Ashok Kanuga, decided on 22nd September, 2005, a Division Bench of this Court, of which 1 was a Member, had, upon a reference being made by the learned Single Judge of this Court, answered the above question as under: "5. After hearing Mr. Ashish Shrivastava, learned counsel for the appellant and Mr. Bhishma Kinger assisted by Mr. Sachin Singh Rajput, learned counsel for the respondent, we find that in two decisions of the Supreme Court, questions similar to the aforesaid substantial question of law have been decided. In Ramniklal Pitamberdas Mehta v. Indradaman Amratlal Sheth reported in A.I.R. 1964 S.C. 1676, similar provisions ofthe Bombay Rents, Hotel and Lodging House Rates Control Act, 1947 (hereinafter referred to as the (Act, 1947') arose for interpretation. Section 13(1)(g) of the Act, 1947 provided that notwithstanding anything contained in the Act but subject to provisions of Section 15 of the Act, a landlord shall be entitled to recover possession of any premises if the Court is satisfied that the premises are reasonably and bona fide required by the landlord for occupation by himself or by any person for whose benefit the premises are held and Section 13(1)(hh) provided that the landlord shall be entitled to recover the possession of any premises if the Court was satisfied that the premises consisted of not more than two floors and are reasonably or bona fide required by the landlord for the immediate purpose of demolishing them and such demolition is to be made for the purpose of erecting new building on the premises sought to be demolished. A contention was raised before the Supreme Court in the said case that the two grounds for ejectment under clauses (g) & (hh) of Section 13 (1) of the Act, 1947 are mutually exclusive and ^^s%, "^ ffc^.. ^ ^^^^ "yay^^^^ 't;^ vfe... ''%.l:^ ^^ n^'.^•' l^^r therefore a landlord cannot take advantage of clause (g) when his case falls under clause (hh) in view of the immediate steps he has to take after getting possessionof the premises. The Supreme Court, however, did not feel the need to express any opinion on this point but took the view that the case of the landlord falls under clause (g) i.e. bona fide requirement of premises for his occupation after making the alterations in the premises. Paragraphs 11 & 12 of the said judgment of the Supreme Court in the case of Ramniklal Pitamberdas Mehta are quoted herein below: "(11) It is further contended for the appellant that the two grounds for ejectment under cls. (g) and (hh) are mutually exclusive and therefore a landlord cannot take advantage of cl. (g) when his case falls under cl. (hh) in view of the immediate steps he has to take after getting possession of the premises. We need not express an opinion on this point, as for reasons to be mentioned later, the case falls under cl. (g) and not under cl. (hh) of S. 13 (1) of the Act. (12) We agree with the Courts below that the respondent's case falls under cl. (g) when he bona fide requires the premises for his own occupation. The mere fact that he intends to make alterations in the house either on account of his sweet will or on account of absolute necessitv in view of the condition of the house, does not affect the question of his requiring the house bona fide and reasonablv for his occuDation, when he has proved his need for occuDvina the house. There is no such prohibition either in the lanauaae of cl- (g) or in any other provision of the Act to the effect that the landlord must occupy the house for residence without makina anv alterations in it. There could not be anv logical reason for such a Drohibition. {emRhasis , \fc.5/ ^" supplied bv me) Under ordinary law, the landlord is entitled to eject his tenant whenever he likes, after following certain procedure except in cases where he has contracted not to eject him before the happening of a certain event. The act restricts that general right of the landlord in the special circumstances prevailing in regard to the availability of accommodation and the incidental abuse of those circumstances by landlords in demanding unjustifiably high rents." 6. In M/s Modem Tailorina Hall etc. v. H.S. Venkusa and others reported in A.I.R. 1997 S.C. 2453, similar provisions of the Karnataka Rent Control Act, 1986 (hereinafter referred to as the 'Act, 1986') came up for interpretation before the Supreme Court. Sectionr12(1)(h) of the Act, 1986 conferred on the landtord the right to claim eviction from a building bona fide required for his own occupation and Section 21(1)(j) conferred on him the right to seek eviction to have the building demolished and reconstructed but subject to right of re-entry of the tenant. In the said case, the landlo'rd had sought eviction of the tenant under Section 21(1)(h) on the ground that he bona fide required the premises for his own house and occupation though after demolition and reconstruction. The Supreme Court referred to the consistent view of the Karnataka High Court that the two provisions in Sections 21(1)(h) & (j) were mutually exclusive but referred to its earlier decision in Ramniklal Pitamberdas Mehta (supra) and held: "....The ground of eviction given in the two provisions being mutually exclusive have flowing therefrom separate individual rights and obligations and they cannot be permitted to overlap so as to confer on the Court the discretion of employing one provision over the ^lg^ 1 cyj ^-y ha^» ^N^ other. An application of the landlord, if not falling under 8.21 (1)(h), would on its own, merit dismissal. The Court cannot treat it in its discretion as one under 8.21(1 )(j) and order an unwanted eviction. The distinction qualitatively has to be maintained." 7. The aforesaid law laid down by the Apex Court in the two cases of Ramniklal Pitamberdas Mehta and M/s. Modern Tailohng Hall etc. would show that if a landlord seeks eviction of the tenant for the purpose of demolishing the existing premises for his own occupation either for residential or non-residential purposes, his case would fall under Section 12(1)(e) or 12(1)(f) and in such a case on a decree of eviction being passed by the appropriate Court, the tenant will have no option for re-entry under Section 18 of the M. P. Accommodation Control Act, 1961, but if the landlord seeks eviction for the purposes of building or rebuilding or making any substantial additions or alterations and not for his own occupation after such building, rebuilding or substantial additions or alterations, such ground for eviction would fall under Section 12(1)(h) ofthe M.P. Accommodation Control Act, 1961 and in such a case if a decree for eviction is passed, the tenant would have an option of re-entry under Section 18 of the Act. Whether the landlord is seeking eviction of the tenant for the purpose of his own occupation for residential or non- residential purposes after demolishing and building or rebuilding or alterations of the building or is seeking eviction of the tenant for the purpose of building or rebuilding or making substantial additions or alterations thereof only and not for his occupation after such building, rebuilding or substantial additions or alterations is a question of fact which has to be decided by the Court on the basis of pleadings and the facts and material available before the Court in each case." ~ It y^^^.. ^B. %n;^2^ <9^sff^;y./ ..^ ^' (iv) It is thus no more res integra that where the landlord establishes the ground for eviction of the tenant under Section 12(1)(e) or (f) and also under Section 12(1)(h), the tenant shall not have a right of re-entry under Section 18 of the Act. The first contention advanced by Shri B.P. Sharma, learned counsel for the appellant, thus fails. 7. The next ground urged by learned counsel for the appellant is that the judgment and decree for eviction of the appellant from the suit house under Section 12(1)(f) of the Act is unsustainable in law because the respondent/landlord Smt.Meenakshi Devi Gupta did not enterthe witness box and both the Courts below have erred in placing reliance upon the testimony of Bhimsen Gupta P.W.1, the husband of the respondent/plaintiff and holder of a General Power of Attorney executed by the respondent/plaintiff who deposed about the bona fide requirement pleaded by the respondenVplaintiff in the suit. Reliance was placed on paragraphs 13 & 17to21 of Janki Vashdeo Bhojwani and anothervs. Indusind Bank Ltd. and others, (2005) 2 SCC 217 which read as under: "13. Order 3 Rules 1 and 2 CPC empower the holder of power of attorney to "act" on behalf of the principal. In our view the word "acts" employed in Order 3 Rules 1 and 2 CPC confines only to in respect of "acts" done by the power- of-attorney holder in exercise of power granted by the instrument. The terms "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 of 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 ofthe matter of which only the principal can have a personal knowledge and in respect ofwhich the principal is entitled to ] / 6.^1. \ v't^l^' v %- ^^" be cross-examined. 17- On the question of power of attorney, the High Courts have divergent views. In the case of Shambhu Dutt Shastri\f. State ofRajasthan, (1986) 2 WLN 713 (Raj) 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 capacity. No one can delegate the power to appear in the witness box on behalf ofhimself. 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 in the capacity of the plaintiff. 18. The aforesaid judgment was quoted with approval in the case of Ram Prasad v. Hari Naram, AIR 1998 Raj 185. It was held that the word "acts" used in Rule 2 of Order 3 CPC 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 Opersonal 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 CPC. 19. In the case of Pradeep Mohanbay (Dr.) v. Minguel Carlos Dias, (2000) 1 Bom LR 908 the Goa Bench of the Bombay High Court held that a power of attorney can file a complaint under Section 138 but cannot depose on behalf of the complainant. He can only appear as a witness. 20., However, in the case of Humberto Luis v. Floriano Armando Luis, (2002) 2 Bom CR 754 on which reliance has been placed by the Tribunal in the present case, the High Court took a dissenting view and held that l... '^ss^^ -\ ''^^.^^v^^, {..[ '^Ki^^ ^...1 /./ ^- .'f -.•^ •' w» ^e^' the provisions contained in Order 3 Rule 2 CPC cannot be construed to disentitle the power-of-attorney holder to depose on behalf of his principal. The High Court further held that the word "act" appearing in Order 3 Rule 2 CPC takes within its sweep "depose". We are unable to agree with this view taken by the Bombay High Court in Flohano Armando (supra). 21. We hold that the view taken by the Rajasthan High Court in the case of Shambhu Dutt Shastri (supra) followed and reiterated in the case of Ram Prasad (supra) is the correct view. The view taken in the case of F/or/ano Armando Luis (supra) cannot be said to have laid down a correct law and is accordingly overruled." In the above case, the Debt Recovery Tribunal had allowed the husband of the appellant No.2 Ms Mohini Laxmikant Bhojwani to appear in the witness box on behalf of the appellants, who were shying away from gracing the box and the respondent Bank vehementlv obiected to allowina the holder of power of attorney of the appellants to appear in the witness box on behalf of the appellants. lemohasis sutsolied by me) In this context, it was held that by not gracing the box and testifying as witnesses themselves, the appellants had failed to discharge the burden that they had contributed towards the purchase of property from any independent source of income and that they were co-owners of the said property. 8. In the present case, it is noteworthy that no objection was taken by the appellanVtenant to the deposing by Bhimsen Gupta, P.W.1 on behalf of the respondenVplaintiff on the basis of a general power of attorney. Another distinguishing feature is that the respondent/plaintiff had sought eviction of the appellant/tenant under Section 12(1)(f) of the Act on the l^8^ ground of bona fide requirement of the suit house for starting the hotel business of her major son Sanjay Gupta, who was a graduate. Sanjay Gupta for whose bona fide non-residential requirement, the suit house was sought to be evicted, had testified in the trial Court. No arguments were advanced by the learned counsel for the appellant on facts to show that there was any perversity in the finding recorded by both the Courts that the suit house was required bona fide for the purpose of starting hotel business for Sanjay Gupta. 9. In Bashir v. Smt. Hussain Bano, 2005(2) M.P.L.J. 230, after considering the various judgments rendered by the different High Courts and the Supreme Court, it was held that where the landlady was a very old lady aged 80 years and did not enter the witness box, a decree for eviction of the tenant on the basis of the evidence of the son of landlady who also held a Power of Attorney on her behalf, would not be fatal to the decree for eviction. 10. Viewed in this context, the case law cited by the learned counsel for the appellant is distinguishable. No objection was raised by the appellant/tenant before the trial Court that Bhimsen Gupta, P.W.1, the husband ofthe landlady, holding aGeneral Power ofAttorney, could not depose on her behalf. Besides, Sanjay Gupta, the son of the landlady, for whose bona fide non-residential requirement the suit house was sought to be evicted, had deposed before the trial Court. In these circumstances, the mere fact that the landlady herself did not grace the box would not /pso facto render, the concurrent finding of fact recorded by both the Courts below that the ground for eviction of the appellant/tenant under Section 12(1)(f) of the Act was established, perverse. In this view of the matter, 1 am of the considered opinion that the question of law proposed by the learned counsel for the appellant does not arise for determination of this appeal. 11. Lastly, it was urged by Shri B.P.Sharma, learned counsel for the appellant that BhimsenGupta P.W.1, the husband and General Power of Attorney holder of the respondenVplaintiff had produced two documents Ex. P.2 which is a notice given by the respondenVplaintiff to the appellant/tenant and Ex.P.3 which is the reply to the notice given by the appellanVtenant. The trial Court had admitted these two documents subject to the objection of the counsel for the appellanVtenant. However, neither the trial Court nor the first appellate Court considered the objection. A perusal of memo of appeal filed under Section 96 of the Code of Civil Procedure by the appellant/tenant before the 12th Additional District Judge, Raipur does not show that any such ground was taken in first appeal. Besides, a perusal of paragraph 7 of the written statement shows that receipt of notice dated 13.07.1988 and the reply dated 26.07.1988 to the said notice given by the appellant/tenant were admitted by the appellanVtenant. Therefore, the last limb of the arguments advanced by the learned counsel for the appellant also fails. 12. Having thus considered the arguments advanced by the learned counsel for the appellant in its entirety, 1 am of the considered opinion that no substantial question of law arises for determination of this appeal, which is accordingly dismissed at the stage of admission. DaipRaosabebDestanukh Judge Anjani