IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH RSA No.4137 of 2010 (O&M) Date of decision:22.11.2010 Brij Bhushan ....Appellant versus Munish Singal, Additional District and Sessions Judge, Ludhiana and others. ...Respondents CORAM: HON’BLE MR. JUSTICE K. KANNAN ---- Present: Mr.Vaneet Kumar Sharma, Advocate, for the appellant. ---- 1. Whether reporters of local papers may be allowed to see the judgment ? 2. To be referred to the reporters or not ? 3. Whether the judgment should be reported in the digest ? ---- K.Kannan, J.(Oral) 1. The second appeal challenges the concurrent decrees for eviction essentially on five counts: (i) the suit for eviction was not maintainable and only a petition under the Haryana Urban (Control of Rent and Eviction) Act of 1973 was possible; (ii) the suit was filed at the instance of second plaintiff through a manager purported to have been appointed under the Lunacy Act but that order had not been produced before the Court; (iii) the case had been prosecuted by the plaintiffs through a power of attorney and the plaintiffs had not examined themselves. The prosecution of the case through a power of attorney RSA No.4137 of 2010 (O&M) - 2 - was, therefore, not competent; (iv) the plaintiffs had not proved the personal necessity to obtain the relief of ejectment; and (v) there was no notice of eviction as required under Section 106 of the Transfer of Property Act. 2. The answers to each one of the grounds urged could be seen from the respective decisions of the trial Court or the Appellate Court themselves. As regards the contention that the suit was not maintainable, the trial Court has considered the fact that the building had been completed only in 2001 and an occupation letter had been issued only in the said year. The tenancy had commenced in April, 2007 and the suit had been filed within a period of 10 years from when construction had been completed. Section 1(3) of Haryana Urban (Control of Rent and Eviction) Act of 1973 makes exclusion of the applicability of the Act as under:- “Nothing in this Act shall apply to any building the construction of which is completed on or after the commencement of this Act for a period of ten years from the date of its completion.” 3. The Court found that it was a new building to which the Act will not be applicable. The learned counsel for the petitioner urges that the property had been originally allotted by HUDA in favour of Smt. Mandeep Kaur on 26.10.1978 and as per the terms of allotment, the constrcution must have been made within a period of 15 years. His contention, therefore, was that the construction ought to have been completed even in 1993 and at the time when the tenancy commenced and the suit was filed, more than 10 years had elapsed from the RSA No.4137 of 2010 (O&M) -3 - completion of the construction. The completion of construction is essentially a question of fact and the trial Court had taken the occupancy certificate issued under P-4 on 23.02.2000 to conclude that the construction had been completed only in that year. The non-completion within a period of 15 years is a matter between HUDA and allottee and cannot be a defence for a tenant, who has come by possession from the landlord. The defence relating to the non-maintainability of the suit was, therefore, clearly untenable and found to be as such. 4. As regards the contention that the second plaintiff had not been duly proved to be represented, it cannot be an argument at the instance of the appellant since no such plea had been taken at the trial Court and no issue had been struck with reference to the same. The validity of representation of a person, who was claimed to be of unsound mind is a matter that should be objected to at the earliest time and it cannot be urged for the first time at the Appellate Court. Even otherwise if the property had belonged to three persons and an eviction had been sought by all of them, the mere fact that the representation of one person was not shown to be properly done, cannot vitiate the institution of the suit itself. The decree of eviction cannot be seen as a detriment to one of the co-owners, if the 2nd plaintiff was of unsound mind. Since there is no prejudice caused to the 2nd plaintiff himself, the tenant can not plead for an imaginary prejudice to one of the plaintiffs. I reject the contention of the defendant on the only ground that the frame of suit is a mixed question of fact and law and unless a proper foundation is laid in the pleadings, the party cannot build on edifice of a defence without such RSA No.4137 of 2010 (O&M) - 4 - pleadings and that too, when there were co-owners who were competent to prosecute the suit. 5. The contention of the appellant that the power of attorney was not competent to give evidence for the principal is again without any substance. The issue whether a power of attorney was competent to speak about a particular fact and issue has to be examined only in the light of facts required to be established and the evidence that was given. There is no rule of thumb that a power of attorney is not competent to speak on behalf of the principal. In a case where a suit is levied for eviction all that had to be proved was the issue of creation of tenancy and the tenability of claim for ejectment. I do not find from the facts that there were anything peculiarly in the knowledge of only the principal which the agent could not have been spoken about. The plea regarding the competence of power of attorney to let in evidence is also equally without merit. 6. The contention was further that there was no proof of personal necessity. A ground of eviction that would become relevant in a rent proceeding could be irrelevant in a suit instituted where the only point for adjudication would be whether the tenancy had been terminated validly and whether the landlords were entitled to maintain the suit for eviction. The ground of ejectment in a civil suit is wholly irrelevant in adjudication of rights between private parties. 7. The last contention was that there was not valid notice to quit. A copy of the notice had been filed and the returned unserved cover was also filed in Court. The contention of the learned counsel is RSA No.4137 of 2010 (O&M) - 5 - that the postal authority had not been examined to show that the letter was attempted to be served on the defendant and that he had deliberately evaded the service of notice. The matter of service or non-service and the issue that the person evaded service are again no substantial questions of law that would call for intervention in second appeal. On the contrary, in this case, the trial Court as well as the Appellate Court have affirmed the view that the notice had been addressed to the defendant at the correct address and there had been no service on the respondent. I will not hold the non-examination of a postal authority as relevant in such a situation. 8. There is no merit in the second appeal. There is no substantial questions of law involved for adjudication. The second appeal is dismissed. (K.KANNAN) JUDGE 22.11.2010 sanjeev