It may be recalled that the rent note at Exhibit 41 is itself signed by the plaintiffs father-in-law on her behalf. Therefore, the plaintiff's father-in-law was the person conversant with the facts of the case. Hence, whether as a holder of power of attorney or as an individual having knowledge of the facts of the case, the plaintiff's father-in-law's evidence could not have been ignored. Further, according to the defendant, he had taken the premises on rent from the plaintiff's husband Vishnukumar and not the plaintiff. In view of this, the ground of non-examination of the plaintiff cannot be raised as a defence by the appellant. In any case, this is not an issue on which the appeal has been admitted.
Print Page
Bombay High Court
Shankar S/O Ratiram Bhure vs Smt. Seetadevi W/O Vishnukumar ... on 19 December, 2005
Equivalent citations: 2006 (2) MhLj 511
Bench: R Chavan
1. Being aggrieved by the decree of his ejectment passed by the learned 4th Joint Civil Judge, Junior Division, Sakoli, and confirmed in appeal by the learned Additional District Judge, Bhandara, the defendant in Regular Civil Suit No. 51 of 1994 before the learned trial Court has preferred this Second Appeal.
2. The plaintiff claimed to have let out suit premises to the defendant from 1-3-1993 to 31-1-1994 on rent of Rs. 800/- per month. An agreement was executed to the said effect. At the expiry of the term, the defendant was to vacate the premises. It was also agreed that on failure of the defendant to vacate, the defendant was to pay damages at the rate of Rs. 50/- per day. In spite of notice dated 2-2-1994 sent by the plaintiff, the defendant did not vacate the premises and hence the plaintiff filed the said suit for defendant's ejectment.
3. The defendant was duly served and filed a written statement denying that he was plaintiff's tenant. He stated that he was tenant of one Vishnukumar Modi, husband of the plaintiff, since 1978. He, therefore, prayed for dismissal of suit.
4. Upon considering the evidence tendered before him, the learned Civil Judge held in favour of the plaintiff and directed defendant's ejectment. The defendant's appeal to the District Court also came to be dismissed. The defendant, therefore, has approached this Court. The appeal was admitted to consider the following two questions :
Whether the suit as framed and filed by the respondent is maintainable in absence of permission from the Rent Controller under C. P. and Berar Rent Control Order, to issue quit notice to the appellant? If no, whether the suit is liable to be dismissed?
Whether the Judgment and Decree passed by both the Courts below is a nullity and without jurisdiction as it is passed by the Court which has no jurisdiction under the Provincial Small Cause Courts Act, 1887 to entertain and try the suits for ejectment, possession and wrongful occupation charges?
5. I have heard Shri Bhattad, the learned Counsel for the appellant/ defendant, and Shri Bhangde, the learned Counsel for the respondent/plaintiff.
6. The learned Counsel for the appellant submitted that the learned trial Judge could not have ordered the appellant-defendant's ejectment, since the plaintiff-respondent had not obtained requisite permission from the Rent Controller to issue notice under Section 106 of the Transfer of Property Act before filing the suit. It was, therefore, contended that the suit was not tenable. For this purpose, the learned Counsel relied on the decision of the Supreme Court in the case of Nandlal and Ors. v. Motilal reported in 1997 Mh.L.J. 711. The Apex Court observed that the Rent Control Order applied to the premises which were situated in the town for which a Municipality was established. The question before the Apex Court was whether it also applied to the towns where Municipalities were established after the Rent Control Order was promulgated. The Court held that it so applied. However, it is nobody's case that there is any Municipal Council established at Sakoli - the place whether the suit property was situated. Hence, there is no question of the provisions of C.P. and Berar Letting of Premises and Rent Control Order, 1949 applying to the suit premises.
7. The appeal was admitted to also consider the question whether the Court, which had no jurisdiction under the Provincial Small Cause Courts Act, 1887, could entertain and try the suit for ejectment, possession and wrongful occupation charges. The proposition that since the learned 4th Joint Civil Judge, Junior Division, Sakoli, lacked the jurisdiction to try the suit as a small cause suit, the suit ought to have been filed before the Civil Judge, Senior Division, Bhandara, who had such jurisdiction, is raised only for the purpose of protracting the litigation. Under Section 26 of the Provincial Small Cause Courts Act, a Court of Small Causes has a jurisdiction to entertain and try all suits or proceedings between licensors and licensees, or landlords and tenants, for recovery of possession of immovable property. Section 16 of the Act bars jurisdiction of other Courts to try such suits within the local limits of jurisdiction of a Small Cause Court. Therefore, had there been a Court of Small Causes at Sakoli, the Civil Court could not have taken cognizance of the suit. However, there is no Court of Small Causes at Sakoli. Therefore, the provisions of Section 16 of the Provincial Small Cause Courts Act, which bar jurisdiction of other Courts to try suits cognizable by the Court of Small Causes, would not apply.
8. Availability of a Small Cause Court at the district place does not mandate that the Civil Court at Sakoli would have no jurisdiction to hear the suit for ejectment. Therefore, whether it affects the prospects of a party as regards appeal or scope of revision cannot be a consideration for holding that the Civil Court should not have tried the suit.
9. The learned Counsel for the appellant further contended that the Courts below erred in passing a decree of appellant-defendant's ejectment without considering the fact that there was no evidence tendered by the respondent-plaintiff. He submitted that the evidence was tendered by the father-in-law of the plaintiff as holder of her power of attorney. Relying on a decision of the Supreme Court in the case of Janki Vashdeo Bhojwani and Anr. v. Indusind Bank Ltd. and Ors. , the learned Counsel for the appellant argued that a holder of power of attorney was not entitled to depose in place of the plaintiff. The Supreme Court had considered the effect of execution of a power of attorney and the scope of activities which the power of attorney could take up. The last sentence in para 13 of the judgment, the Court is, however, significant and would clinch the issue. The Court observed, "... Similarly, he cannot depose for the principal in respect of the matter of which only the principal can have a personal knowledge and in respect of which the principal is entitled to be cross-examined."
10. It may be recalled that the rent note at Exhibit 41 is itself signed by the plaintiffs father-in-law on her behalf. Therefore, the plaintiff's father-in-law was the person conversant with the facts of the case. Hence, whether as a holder of power of attorney or as an individual having knowledge of the facts of the case, the plaintiff's father-in-law's evidence could not have been ignored. Further, according to the defendant, he had taken the premises on rent from the plaintiff's husband Vishnukumar and not the plaintiff. In view of this, the ground of non-examination of the plaintiff cannot be raised as a defence by the appellant. In any case, this is not an issue on which the appeal has been admitted.
11. To conclude, since the provisions of the C. P. and Berar Letting of Premises and Rent Control Order, 1949 do not apply to the suit premises, and since there is no Court of Small Causes at Sakoli to enable the appellant to contend that the Civil Court at Sakoli should not have taken cognizance of the suit or tried it, there is absolute no merit in the appeal.
12. The appeal is, therefore, dismissed with costs.
No comments:
Post a Comment