M.K. Mudgal, J.@mdashThe appellant/defendant has filed the appeal u/s 96 of CPC being aggrieved by the judgment and decree dated 22.9.2009 passed by the IVth Additional District Judge, (Fast Track) Guna (Shri Rajiv M. Apte) in Civil Suit No. 57-A of 2009 decreeing the suit filed by the plaintiff for eviction u/s 12(1)(a) M.P. Accommodation Control Act (hereinafter referred as to ''the Act'') and for recovery of arrears of rent. In this appeal, the appellant is referred as ''defendant'' and respondent as ''plaintiff''. The admitted facts are that the appellant/defendant is the tenant in the disputed premises and he is carrying his business in this shop. The plaintiff/respondent filed a suit for his eviction from the tenanted premises and recovery of arrears of rent, which has been decreed in her favour as stated earlier.
2. Facts, in brief, of the plaint are that the suit was filed on behalf of the plaintiff by the plaintiff''s son Pradeep Kumar Goyal who was having Power of Attorney against the defendant stating therein that the plaintiff owns a house in Ward No. 17 Nagarpalika, Guna and the appellant/defendant was the tenant of the premises paying rent @ Rs. 3450/- per month. The tenancy given on monthly basis commences from the first day of the every calendar month and terminates on the last day of the calendar month. The agreement of tenancy was oral. It was further pleaded in the plaint that the appellant/defendant did not pay rent after June, 2004 onwards and even on the request made by the plaintiff for payment of rent, the defendant did not turn up and pay any heed to the request made by the plaintiff. Hence, the plaintiff served a written notice dated 5.10.2006 to the defendant seeking due rent on the address of defendant''s shop but the defendant did not receive the same and it was sent back to the plaintiff. Thereafter, another notice was sent on 31.10.2006 on the defendant''s residential address as well as at the address of shop terminating the tenancy as well as demanding the arrears of rent of the tenanted premises. But after receiving the said notices neither any reply was given by the defendant nor was the tenanted premises vacated and nor arrears of rent paid. Hence, the suit was filed for eviction and recovery of due amount of rent i.e. Rs. 1,14,350 including mense profit and costs etc against the defendant.
3. Denying the allegations made in the plaint except the admitted facts, the defendant has submitted written statement stating therein that the rent of the tenanted premises was settled @ Rs. 1000/- per month and not @ Rs. 3450/- per month as alleged by the plaintiff. It was further averred that the tenancy was not oral but it was written as well. The document executed for this purpose had been destroyed in a fire accident which occurred in his shop. It was contended by the defendant that a premium of Rs. 2,00,000/- was paid by him to the plaintiff. He had also paid rent up to the month of May, 2006 and receipts were also issued by the plaintiff, but the said receipts also got destroyed in the fire accident. Even thereafter, he paid the rent for the months of June to September, 2006 but the receipts were not issued by the plaintiff for this payment on the pretext of non availability of receipt book. Thereafter, the defendant had deposited the whole rent due to the plaintiff, but no receipt was given. Service of notice by the plaintiff was also denied by the defendant. Hence, the defendant has prayed for dismissal of the suit.
4. The learned trial Court after framing as many as ten issues, recording evidence of both the parties and having considered the recorded evidence, allowed the suit filed by the plaintiff vide impugned judgment dated 22.9.2009 and granted decree for eviction and payment of arrears of rent to the plaintiff.
5. Heard learned counsel for the parties and perused the record.
6. The following issues crop up for consideration in this appeal-
A. Whether the plaintiff had given two months notice to the defendant u/s 12(1)(a) of the M.P. Accommodation Control Act (hereinafter referred to as "the Act") for demanding the arrears of rent before filing the suit?
B. Whether the plaintiff has duly proved the execution of the document of power of attorney (Ex-P/1) dated 12.4.07?
7. The learned counsel for the appellant submits that on behalf of the plaintiff, the demand notice Ex-P/2 dated 5.10.2006 and other notice Ex-P/3 dated 31.10.2006 were given by her counsel Shri Rakesh Patel but the contents of both the notices were not duly proved by the plaintiff as neither the statement of the plaintiff Smt. Pratibha Goyal was got recorded nor was the statement of the advocate issuing notices got recorded on behalf of the plaintiff and so it cannot be deemed proved that the demand notice as per Section 12(1)(a) of the Act was given by the plaintiff to the defendant. The counsel further submits that for passing the decree of eviction u/s 12(1)(a) of the Act, it was obligatory on the part of the plaintiff to prove the compliance of the said provision as held in
8. The learned counsel further argues that though on behalf of the plaintiff the statement of the holder of power of attorney Pradeep Goyal (PW/1), son of the plaintiff, was got recorded yet the said statement does not prove the contents of the notices Ex-P/2 and Ex-P/3 because when the notices were given by the plaintiff the holder of power of attorney was not in function since he was appointed by Ex-P/1 on 12.4.07 for filing the suit and so he having no personal knowledge of the facts of the said notice could not prove the contents of the notices. To bolster his submissions, the learned counsel has relied upon the
9. The learned counsel further contends that the document of power of attorney Ex-P/1 has not been duly proved on behalf of the plaintiff as per Section 4 of the Power of Attorney Act wherein a specific provision has been made to prove the document. It must have been strictly complied with. Whenever a particular provision is made to act in a specific manner, the said provision shall have overriding effect upon the general provisions of the other act. The counsel has relied on the judgment of the Supreme Court reported in
10. Per contra, the learned counsel for the respondent submits that the receipt of the said notices was not specifically denied by the defendant in his statement as well as in the written statement also. On account of this, non recording of the plaintiff statement does not carry any adverse effect on the merit of the case as the statement of the hold of power attorney has successfully proved the contents of the said notices. The learned counsel has relied on a few cases referred in the written arguments. The counsel further submits that the execution of power of attorney Ex-P/1 has been proved by the statement of Pradeep Kumar Goyal (PW/1) and Vinod Mangal (PW/2). Besides, the execution of Ex-P/1 was not disputed by the executant. The counsel vehemently opposing the contention submitted by the appellant counsel as regards Section 4 of the Power of Attorney Act has submitted that the compliance of the said Section is not obligatory to prove the execution of the document Ex-P/1. As per provision of the Evidence Act, the plaintiff has proved the execution of the Ex-P/1 and so the power of attorney holder PW/1 has legally filed the suit on behalf of the plaintiff on the basis of Ex-P/1. The counsel has also relied upon a few judgments in his submissions.
11. Before adverting to the submissions made on behalf of both the parties, the applications submitted by them are to be considered first.
12. The appellant/defendant has filed an application (I.A. No. 3957/11) dated 21.9.11 u/s 13(1) of the Act to condone the delay in depositing the rent. The appellant has submitted that the trial Court has held the rate of rent to be Rs. 1000/- per month vide impugned judgment dated 22.9.09 and has also held that the rent was due since 1.7.04. In para 36 of the judgment total due rent Rs. 66,000/- was determined by the court from the date 1.4.04, out of which, the appellant had deposited Rs. 52,000/- and rest of the amount Rs. 14,000/- was to be given to the respondent/plaintiff. In para 42 of the judgment, it has been directed that the appellant/defendant shall pay Rs. 14,000/- in one installation and thereafter Rs. 1500/- per month would be paid as compensation till the execution of the decree. The appellant has further stated that the due amount Rs. 14,000/- was deposited on 13.11.09 with the delay of two months. Thereafter the amount of compensation at the rate of Rs. 1500/- per month was deposited on 28.5.11 with the delay of two years. The appellant has further submitted that the above mentioned delay was due to the illness of the appellant''s father who has been undergoing treatment. In the meantime, the appellant/defendant could not concentrate on his business, therefore, he could not earn sufficient money to pay the rent and compensation within the stipulated time. Submitting the application the appellant has prayed as stated earlier.
13. Opposing the application by the respondent/plaintiff has submitted that though the appellant has deposited a sum of Rs. 104000/- yet the appellant has failed to deposit the amount of mesne profit as awarded by the trial court which was also required to be paid by the appellant. In para 3 of the reply, the respondent has further submitted that the due amount of Rs. 14,000/- was not deposited by the appellant as per direction of the impugned judgment. Moreover, after obtaining the stay order from this Court, the appellant has neglected to pay the monthly rent regularly as required u/s 13(1) of the Act. It is also submitted that the respondent filed an application u/s 13(6) of the Act on 01.04.2011 for striking out the defence of the appellant because of non payment of the monthly rent regularly. The appellant was required to deposit the monthly rent by the 15th of every succeeding month but there have been as many as 25 defaults in this requirement by the defendant. The appellant is a habitual defaulter and in such circumstances, he is not liable for any mercy from this Court for condonation of delay as he is enjoying the tenanted premises and running his business without paying the rent. The respondent has further alleged that the reason assigned by the appellant for delay in payment of the due rent is not based on bonafides. No documentary evidence in support of the plea was produced by the appellant who is trying to mislead this Court and the ground stated is not sufficient to condone the delay in depositing the rent.
14. On perusal of the record, it becomes clear that in compliance of the impugned judgment the appellant/defendant did not deposit the entire amount of due rent. As per application of the appellant due amount Rs. 14,000/- was deposited with the delay of two months and the appellant has not deposited the monthly rent as required by the section 13(1) of the Act. When the application u/s 13(6) of the Act dated 1.4.11 was filed by the respondent to strike out the defence of the appellant for not depositing the monthly rent as per Section 13(1) of the Act thereafter the appellant deposited Rs. 31,500/- on 25.8.11 and Rs. 2000/- on 16.9.2011. The cause of delay assigned by the appellant is not found bonafide as no document has been produced on record showing the illness of the appellant''s father as stated by him in his application. In view of this fact, it transpires that when the appellant felt that his defence might be struck out by this Court he deposited the due amount with the delay of two years with malafide intention. It is also found on record that the appellant/defendant is a habitual defaulter, he never paid the rent on due date as required u/s 13(1) of the Act. Considering the aforesaid facts, the application (I.A. No. 3957/11) being based on malafide is hereby rejected.
15. The respondent/plaintiff has filed an application u/s 13(6) of the Act (I.A. No. 1469/11) to strike out the defence of the appellant/defendant as the appellant has neither paid the arrears as held by the trial court in the impugned judgment nor paid the rent by every month regularly in compliance of the said judgment. The respondent has further submitted that after 13.11.09 no rent was paid by the appellant till filing the respondent filed an application 1.4.11. Hence, the appellant defence be struck off. The appellant filing the reply has submitted that in compliance of the order of the trial court Rs. 31,500/- was deposited on 25.8.2011 and before that Rs. 18,500/- was deposited on 13.11.09 and Rs. 2000/- was deposited on 16.9.11. Thus the entire rent has been deposited by the appellant, therefore, the application filed by the respondent/plaintiff be dismissed. As discussed earlier the application for condonation of delay in depositing the rent has been rejected. Hence, it is concluded that the appellant/defendant has not complied with the provision of 13(1) of the Act. Where a tenant does not deposit the due arrears of rent and monthly rent by the 15th of every month his defence may be struck out u/s 13(6) of the Act as held by this Court in Smt. Sumitra Vs. Shailendra Singh, 2002 (II) MPWN Note 3 and
16. The effect of striking off the tenant''s defence was taken into account by this Court and was described in para 25 of
The obvious result of such striking out of the defence against eviction was that under a statutory fiction made available as envisaged u/s 13(6) of the Act, the material facts which formed the edifice of the defence against eviction had to be taken to be totally absent and could not be deemed to have been pleaded. The assertions of facts constituting the pleadings in regard to the rate of rent clearly amounted to defence against eviction and since by statutory fiction these material facts could not be deemed to be there in the written statement and were liable to be ignored altogether, there could be no occasion to permit the defendants to lead evidence in support of a pleas which was not there at all.
Similarly, in the case of
It appears that view of Division Bench of this Court in the case of Krishna Bai Vs. Laxmi Bai (1) has been impliedly overruled in part by the case of Modula India Vs. Kamakshya Singh Deo, (2). In Krishna Bai Vs. Laxmi Bai (supra) a Division Bench of this Court, referred to an earlier Division Bench decision of this Court Premdas Vs. Laxmi Narayan (supra) and came to the conclusion that u/s 13(6) ''the Act'' only defence u/s 12 of ''the Act'' is struck out and not the defence under General law. This part of the decision of this Court has not been overruled by Supreme Court in Modula India Vs. Kamakshya Singh Deo, (supra). In fact, the Supreme Court was not concerned with the point decided by Division Bench in Premdas Vs. Laxmi Narayan (supra). However, the conclusion of the Division Bench is Krishna Bai Vs. Laxmi Bai (supra) that the defendant has to be treated exparte, so far as grounds u/s 12 of ''the Act'' are concerned, have been overruled. It appears to this Court the effect of decision of the Supreme Court in Modula India Vs. Kamakshya Singh Deo, (supra) is that the consequence of striking out defence would be as follows:-
(I) That part of Written statement which has been struck out, has to be overlooked:
(II) The defendant would not be allowed to lead his evidence on the point;
(III) There shall be no right of cross-examination in respect of the parties struck off from the written statement which was raised by way of defence u/s 12 of ''the Act''; and
(IV) However, defendant shall have a right of cross examination to a limited extent and right of addressing the argument. He may be permitted to demolish, if he can, by way of cross examination on the points in the case which the plaintiff is bound to establish in order to prove his case. Thus, there is no right of attacking the case of plaintiff for the purpose of defending his own case, but there is vestige of right negative in character of destroying the case of plaintiff by cross examination.
The view appears to be based on theory that no evidence is complete unless tested by cross examination. The conclusion of Supreme Court in Modula India Vs. Komakshya Singh Deo, (supra) is as follows:-
For the above reasons, we agree with the view of Ramendra Mohan Datta, A.C.J. that, even in case where the defence against delivery of possession of a tenant is struck off u/s 17(4) of the Act, the defendant, subject to the exercise of an appropriate discretion by the Court on the fact of a particular case, would generally be entitled:
(a) to cross-examine the plaintiff''s witnesses, and
(b) to address argument on the basis of the plaintiff''s case.
We would like to make it clear that the defendant would not be entitled to lead any evidence of his own nor can his cross-examination be permitted to travel beyond the very limited objective of pointing out the falsity or weaknesses of the plaintiff''s case. In no circumstances should the cross-examination be permitted to travel beyond this legitimate scope and to convert itself virtually into a presentation of the defendant''s case either directly or in the form of suggestions put to the plaintiff''s witnesses.
17. The contention of the appellant''s counsel to this effect that if a land lord does not serve two months notice to a tenant for the demand of arrears of legally recoverable rent before filing a suit, a decree for eviction cannot be passed u/s 12(1)(a) of the Act in favour of the land lord, appears to be correct as held in Babulal (supra).
18. In the instant case, the plaintiff has pleaded in para 5 and 6 of the plaint regarding the issuance of the notices Ex. P/2 dated 5.10.2006 and Ex. P/3 dated 31.10.2006. The defendant has not specifically denied having received the said notices. It is true that the notices were given by the Advocate Shri Rakesh Patel on behalf of the plaintiff. At that time, the holder of power of attorney Pradeep Kumar Goyal (PW 1) son of the plaintiff, was not appointed as power of attorney holder by the plaintiff through the document Ex. P/1 dated 12.4.2007. This is also true that plaintiff''s statement was not got recorded. The notices were proved by the Power of Attorney holder Pradeep Kumar Goyal (PW 1). Placing reliance on the judgment Janki Vashdeo Bhojwani (Supra), the contention of the counsel for the appellant is that the notice Ex. P/2 and P/3 for the demand of the arrears of rent, given on behalf of the plaintiff cannot be deemed proven without examining the plaintiff herself as the contents of notices Ex. P/2 and Ex. P/3 can only be proved by the plaintiff and not by the holder of Power of Attorney who had not been appointed as power of attorney holder till then and had no personal knowledge about the contents of Ex. P/2 and Ex. P/3 when they were issued by the Advocate on behalf of the plaintiff. The said contention is not acceptable in the instant case as the plaintiff''s witness Pradeep Goyal (PW 1) has deposed in para 4 and 5 that the notices Ex. P/2 and Ex. P/3 were given by her mother through the Advocate vide registered post receipt Ex. P/4 to Ex. P/6 and were received by the defendant through acknowledgment receipt Ex. P/7 and Ex. P/8. The said facts were not challenged on behalf of the defendant during cross-examination of Pradeep Goyal (PW 1) and it was not even asked how he had acquired knowledge of the said facts. Besides, the defendant has admitted in para 13 that the address mentioned in the receipt of acknowledgment Ex. P/7 is the correct address of his shop and it bears his signature. In the same manner, he has further admitted that the address written in the receipt of acknowledgment Ex. P/8 is that of his residence. In view of these facts, it becomes clear that when the notices were sent on the correct address of the defendant''s shop as well as residence, it may be presumed that the notices were served on the defendant as held in
19. The High Court has considered the judgments AIR 2005 SC 576 (supra) in the cases of
20. In view of the aforesaid facts and circumstances of the instant case, the failure of recording plaintiff''s statement does not affect the merit of the case and so, the aforesaid contention of the counsel for the appellant cannot be accepted.
21. Now it is to be considered whether the document of power of attorney has been properly proved or not. In this regard the counsel for the appellant has submitted that the Ex-P/1 ought to have been proved by the plaintiff according to Section 4 of the Power of Attorney Act whereas in this case, the said document was not proved and so it cannot be deemed fit that the suit was filed by a competent person. For considering the said contention, it would be proper to mention here the provision of Section 4 of the Power of Attorney Act which is as under:-
4. Deposit of original instruments creating powers-of-attorney.-(a) An instrument creating a power-of-attorney, its execution being verified by affidavit, statutory declaration or other sufficient evidence may, with the affidavit or declaration, if any, be deposited in the High Court or District court within the local limits of whose jurisdiction the instrument may be.
(b) A separate file of instruments so deposited shall be kept; and any person may search that file, and inspect every instrument so deposited; and a certified copy thereof shall be delivered out to him on request.
(c) A copy of an instrument so deposited may be present at the office and may be stamped or marked as a certified copy, and, when so stamped or marked, shall become and be a certified copy.
(d) A certified copy of an instrument so deposited shall, without further proof, be sufficient evidence of the contents of the instrument and of the deposit thereof in the High Court or District Court.
(e) The High Court may, from time to time, make rules for the purposes of this section, and prescribing, with the concurrence of the State Government, the fees to be taken under clauses (a), (b) and (c).
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(g) This section applies to instruments creating powers-of-attorney executed either before or after this Act comes into force.
22. On perusal of the aforesaid provision, it can be assumed that there is a procedure implied in it to prove the document of power of attorney. It is also true, whenever a specific provision is made in a special Act which has overriding effect on the general provisions of the Act, it should be acted upon. The learned counsel placing reliance on the judgment
The principle that where a power is given to do a certain thing in a certain way, the thing must be done in that way or not at all and that the other methods of performance are necessarily forbidden applies to judicial officers making a record under S. 164.
On perusal of the aforesaid judgment, it becomes clear that it is not related to Section 4 of Power of Attorney Act. Hence, the said judgment does not support the contention of the appellant in this case. Apart from this, the Section 4 of the Power of Attorney Act does not exclude the provision of the Evidence Act for proving the document of Power of Attorney. It is also pertinent to mention here that as per requirement of Section 4 of the said Act no rules have been formulated by the High Court of M.P. for depositing the power of attorney in the High Court or District Court. In the absence of the rules, compliance of Section 4 for proving the document of power of attorney cannot be possible.
23. In the instant case, the execution of the document of power of attorney Ex-P/1 has been proved by Pradeep Goyal (PW/1) and the witness Vinod Mangal (PW/2). The Ex-P/1 was executed by the plaintiff Smt. Pratibha Goyal who has not challenged the execution of the said document. Besides, the execution of the said document has neither been even challenged on behalf of the defendant during cross-examination of the plaintiff''s witnesses statement PW. 1 and PW. 2 nor by the defendant in his statement. In view of the said facts and circumstances, the plaintiff has rightly proved the execution of the document Ex-P/1. Thus, the contention by the appellant is not acceptable in the light of the above discussion.
24. Therefore, considering the entire evidence recorded in the case, there is no sufficient ground for interference in the impugned judgment and decree of the learned trial Court. The appeal being devoid of merit and credence is, hereby, dismissed. The cost of the appeal shall be borne by the appellant for the respondent.
The decree be drawn up accordingly.
