Pritam Shah Singh vs Climate Engineering And ...
1987 Latest Caselaw 561 Del

JUDGMENT

Mahinder Narain, J.

(1) I had pronounced judgment in this revision petition after hearing counsel for the petitioner. Thereafter, an application was made being C.M. No. 2394 of 1987 with the prayer that the judgment passed by me, which was given without hearing the respondent, be set aside and the respondent be provided an opportunity to make his submissions on behalf of the respondent, and the revision petition be decided on merits after hearing the respondent.

(2) On 28th August, 1987, Mr. Dayal appeared for the petitioner and stated that he had no objection to the grant of the application and further stated that he had already been beard and the matter be listed for hearing the respondent.

(3) As I had already heard the counsel for the appellant, I beard the counsel for the respondent and now proceed to judgment.

(4) The facts given rise to this Revision are that a petition for eviction of the respondent M/s. Climate Engineering & Maintenance Company from property No. C-66, Nizamuddin (East), New Delhi, was filed by Pritam Shah Singh, petitioner, under Section 14(1)(e) read with Section 25-B of the Delhi Rent Control Act on the ground of personal bona fide requirements. It is asserted that the petitioner, Pritam Shah Singh, is owner of the said premises, having purchased it at a public auction under the Displaced Persons (Compensation & Rehabilitation) Act, 1954. A certificate of sale dated 1st May, 1981 was issued in his favor. The lease-deed was, however, executed in his favor only on 1st May, 1981.

(5) It is asserted before me, as was done before the Rent Controller, that M/s. Climate Engineering & Maintenance Company is a sole proprietory concern of Riaz Ahmed, for whose residence and said premises had been given to him.

(6) The Rent Controller by her judgment dated 31st May, 1984 has correctly found that a proprietory concern docs not have a distinct legal entity from its sole proprietor. The Rent Controller was, therefore, right in rejecting the contentions of the respondent that the tenant was Climate Engineering & Maintenance Company. The Rent Controller has also correctly found that the premises has been taken for residential purpose only.

(7) The plea that provisions of Section 14(6) of the Delhi Rent Control Act are attracted to this case inasmuch as the lease-deed in favor of the owner is dated 1st May, 1981, whereas the petition for eviction has been filed on 3rd July, 1981, was also correctly rejected by the Rent Controller for the reason that the ownership relates back to the date of sale, i.e. 10th October, 1954.

(8) It having been found that the petitioner is the owner of the premises No. C-66, Nizamuddin (East), New Delhi, since 10th October, 1954, it having been found that the purpose of letting was residential, the only question which remains is whether the requirement of the petitioner was bona fide.

(9) It has been proved before the Rent Controller in evidence that the petitioner had sold his land and living accommodation in Navasbahr (Punjab), where he was carrying on agricultural activities. In my view, the trial court is in error in coming to the conclusion that the petitioner has to give reasons in the court for satisfying the court that the sale at Navashahr of the agricultural land and residential premises was bona fide. That is beyond the scope of the enquiry in the present proceedings which is confined to whether the petitioner is right in saying that his requirement to reside in C-66, Nizamuddin (East), New Delhi, is bona fide.

(10) Having accepted that the property in Navashahr (Punjab) has been sold, and that the petitioner has no other accommodation apart from C-66, Nizamuddin (East), New Delhi, for his residence anywhere in India, the question of justification of sale, to my mind, is irrelevant, and the Rent Controller has gone wrong in thinking that an explanation or justification for that sale was required in these proceedings. It is stated by the petitioner that he needs premises No. C-66, Nizamuddin (East), New Delhi, fot residence of himself, his wife and children, and that he has no other reasonable and suitable accommodation anywhere in India, that he is residing with his nephew in Delhi; and would not like to continue to do so.

(11) The assertions made by the respondent that the petitioner's children are living in U.S.A., and that he also does not live in India, have adequately been negated by the statement of the petitioner that he holds an Indian passport. He even today holds an Indian Passport. In Court I have been shown the passport issued to the petitioner. This passport bears No. E-262548, and has been issued by the Indian Vice-Consul, San Fransisco on 11th July, 1986. This passport also records that it is valid till 24th May. 1991. This passport further records that Pritam Shah Singh bad earlier held passport No. K-86892 dated 25th May, 1976, which was issued at Delhi. Another passport has been shown in Court, which relates to Amrit Kaur. This is issued by the Indian Vice-Consul, San Fransisco on 2nd April, 1987, and is valid till 28th June. 1992 This passport also records that the previous passport was bearing No L-710816 dated 29th June, 1977, and was issued at Chandigarh. The passport of the petitioner indicate that the petitioner landed in Delhi on 2nd May, 1987. It is obvious that the petitioner has come to India on an Indian passport. He needs a place for his residence. There is no reason to disbelieve him that he needs the premises No. C-66, Nizamuddin (East), New Delhi for his residence.

(12) Mr. Maheshwar Dayal, counsel for the petitioner has referred to judgment reported as (Usha Sales Ltd. v. Mrs. Mohini Nayar.) In that case the landlady was living and teaching in England, and had made an assertion in the petition for eviction that she needed the premises for residence in India. Her eviction petition was decreed.

(13) In the instant case, the petitioner is living in India as Indian Citizen, holding .even Indian passport. It is the house of the petitioner at C-66, Nizamuddin (East), New Delhi, where he wants to live, and is entitled to do so. His petition for eviction says that he and his wife want to live in that house, and it seems to me that the Rent Controller was in error in coming to the conclusion, which she has with regard to there being no bona fide requirement for the premises.

(14) The respondent contends that the petitioner does not have a bonafide need for the accommodation for himself and members of his family dependent upon him. The eviction petition filed by the petitioner was rightly dismissed by the court below. Counsel for the respondent has invited my attention to the statement that has been made by the petitioner in Court regarding his ownership of residential accommodation. I find from the statement recorded in Court on 26th July, 1982 that the petitioner stated in his examination-in-chief that "I do not own any other house cither in Delhi or in any part of India". I put it to counsel for the respondent that if this is the position then he has to show that the petitioner is deposing falsely and in fact that he had some other suitable residential accommodation as a matter of fact. Counsel for the respondent has taken me through the cross-examination of the petitioner by him and despite perusing the same as desired by the respondent I do not find any statement of the respondent that goes contrary to what is stated by the petitioner in examination-in-chief. In other words, the respondent has failed to elicit anything from the petitioner in his crossexamination that he has other accommodation or house in Delhi or anywhere else, which was suitable for the requirements of the petitioner. The petitioner has specifically denied the suggestions given by counsel for the respondent that he has other residential accommodation in a place called Navashahr. The petitioner's statement that his wife had a house in Navashahr, and that it was owned by his wife is established by sale deed, which was exhibited as Ex. A-5, has remained unrebutted. It is not possible for me to hold, after having perused sale deed Ex. A-5, that the sale transaction did not take place by Ex. A-5, in fact full particulars of the house including its boundaries, its location in the town are mentioned. The sale consideration is also mentioned. This document, therefore, cannot be used by the respondent for the purposes of contending that there is no sale. In any event, this document relates to the sale of immovable property by the wife of the petitioner, The petitioner deposed that it was his wife who sold the property. There is no infirmity in the statement of the petitioner and I accept the statement that the house that was sold in Navasbahr was his wife's house. This is clear from Ex. A-5.

(15) It is contended by the respondent that in view of the fact that a power of attorney was executed by the petitioner in favor of his nephew on 2nd August, 1980, photostat copy whereof is marked as R-1, it is not possible to say that the petitioner requires the premises for himself and members of his family dependent upon him in view of the contents of this power of attorney. It is to be noted that this power of attorney does not give any power to sell the property C-66, Nizamuddin East, as was specifically contended by the counsel. Clause 8 of this power of attorney permits letting of this property 'if it is vacated at any time'. The power to let is conditional; upon happening of an event-vacation of this house, which has not happened as yet. This power of attorney recites that the property with respect to which the power of attorney is given property bearing No. C-66, Nizamuddin East, has been let out to the respondent herein and also recites that various litigations are pending between the petitioner and the respondent (this is the position admitted by the respondent) with respect to the said property and as the petitioner was intending to go to U.S A. he was unable to look after hi s property and to prosecute his above-said litigation personally during his absence from India. This is the reason for execution of this document.

(16) To my mind, no advantage can be gained by the respondent from this document. This document would be an enabling document which would enable Madho Shah Singh, the attorney, constituted by this document to let out C-66, Nizamuddin East 'if it is vacated at any time'. This power of attorney enables the constituted attorney to take action in the absence of the petitioner. The premises have still not been vacated by the respondent. The petitioner is in India today and has been in India since 2nd May, 1987. While in India he can take action with regard to prosecution of the litigation himself. He does not need the constituted attorney. In my view, merely because the power of attorney permits letting by attorney in given circumstances and conditionally, it cannot, in my view establish the alleged intention of the executant of the power of attorney, appellant herein, to leave India for ever.

(17) To execute a power of attorney, in my view, is an act of prudent person who does not want the matter to go by default, does not want his interest in litigation to suffer owing to his absence from a place.

(18) A.I.R. 1954 Travancore-Cochin 10 (T.V. Kozhuvareed and another v. V.P. Mariappa Gounder and Others) and ( Syed Abdul Khader v. Rami Reddy and others), the cases cited by the respondents' counsel relate to registration of power of attorneys. In the former case, the power of attorney was a registered one, in the latter case the Supreme Court said that General power of attorney need not be registered. In either case, whether the power of attorney is registered or not, the contents thereof have to be strictly construed. The power of attorney permits only doing of that what it permits the attorney to do. Nothing more. Its contents cannot be used to draw inferences of intention of the executant, as is sought to be done.

(19) Mr. Mehta, counsel for the respondent, thereafter relied upon Ex. R-7- Ex. R-7 is purports to be a notice issued by a lawyer on behalf of one 'Sohan Lal' not a party to these proceedings, making some enquiries and notifying Riaz Ahmed of certain thing. It is contended that the contents of this document prove an intention to leave India and sell the property. In my view, this document was wrongly exhibited, objection to exhibit this document was taken before the court below. The court below erred in exhibiting this document. The lawyer who issued this notice was Mr. M.S. Yadav, who was not examined in court The person who purports to have given instructions to Mr. Yadav, Advocate to issue this notice to Riaz Ahmed, was also not examined in court. In these circumstances, as the contents of the notice have not been subject matter of cross-examination of person who wrote it, or on whose instructions it was written, it cannot be said that the same are true and correct .

(20) In any case, this document cannot be looked at as it has not been properly exhibited. It could have only be exhibited after Mr. Yadav, Advocate had been examined in cross-examination in court as the document bears his signatures. In view of what is stated herein and because of failure to examine Mr. Yadav, Advocate or Sohan Lal on whose behalf this notice is purported to have been issued, makes me believe that this is a procured document and cannot be used against the petitioner in any event.

(21) A.I.R. 1933 Rangoon 147 (Hamida Bai v. Abdul Gaffar), cited by counsel for the respondent is not applicable as in that case the decision was different. It was held that the court can presume that a notice sent by one of the counsel for the parties to the action, can be presumed to have been sent on instructions. Sohan Lal is not a party to this action, nor is Mr. Yadav before this Court.

(22) Regarding bona fide requirement, counsel for the respondent has cited 1984 (2) Rent Control Journal 217 (Ashok Karmam v. Sh. A.T. Jotwani) of Justice J.D. Jain of this Court and Rent Control Journal 1 (Joginder Singh v. Smt. Uma Vati) of Justice G.C. Jain of this Court. Both these judgments are to the proposition that onus, to prove bona fide requirement, is on the landlord. In my view, the landlord has fully discharged this onus in the facts and circumstances of this case.

(23) Another submission made by the counsel for the respondent was that the accommodation which is presently available with the landlord has not been indicated in a site plan. As far as this contention is concerned, I think, it is sufficient to recall the deposition of the petitioner, landlord, that he is living with his nephew and not in any premises over which he has any right or claim, and that he is living as a guest of his nephew. As such, the requirement, if any, of a site plan of accommodation with the landlord does not arise in this case.

(24) Another contention which has been raised by counsel for the respondent is that the correct person has not been sued by the landlord. The instant proceedings were initiated against M/s. Climate Engineering and Maintenance Company. What is contended is that there is another company known as M/s. Climate Engineering Company. As far as these two names are concerned, in my view, proceedings in one name or the other is of no consequence, inasmuch as it is not disputed by the respondent that by whatever name the business of the respondent is called, the respondent, Riaz Ahmed, is the sole proprietor thereof. In any case, neither of these two names can be considered to be independent legal entities, both having been sole proprietory concerns of the respondent, Riaz Amed.

(25) It is lastly contended, weakly, that the proceedings for eviction filed by the respondent were counter blast. The fact that other proceedings are pending, in my view, cannot impinge upon the statutory rights of the landlord to file a petition under Section 14(1)(e) of the Delhi Rent Control Act.

(26) For the aforesaid reasons, I set aside the order of the Rent Controller, and allow the petition for eviction filed by the petitioner with costs. Costs are quantified at Rs. l,500.00 . In accordance with Section 14(7) of the Delhi Rent Control Act, six months' time is granted to the tenant to vacate the premises.