Amarjit Singh & Ors vs Sheikh Sultan Ahmed
2014 Latest Caselaw 1858 Del

$~66
*    IN THE HIGH COURT OF DELHI AT NEW DELHI

                                                                 Date of Judgement: 04.04.2014

+                          RC.REV. 522/2012, CM APPL.5596/2014

AMARJIT SINGH & ORS                                             ..... Petitioners
                  Through:                           Mr. Vinod Sharma, Adv.

                                                  versus

SHEIKH SULTAN AHMED                                              ..... Respondent
                 Through:                            Mr. M. Salim, Adv.

CORAM:
HON'BLE MR. JUSTICE NAJMI WAZIRI

NAJMI WAZIRI, J. (Oral)

This petition impugns an order dated 03.07.2012, dismissing the petitioner‟s application for leave to defend under Section 25B of the Delhi Rent Control Act, 1958 (for short „the Act‟) and under Order 11 Rules 1 & 2 CPC. The respondent‟s petition under Section 14(1)(e) of the Act seeking eviction of the tenant from shop bearing No.870, Nai Sarak, Delhi-110006 on, was allowed and the eviction order was passed.

The petitioner/tenant contends that the application for leave to defend ought to have been allowed for the following grounds, that:-

i. the petition is not signed by the eviction-petitioner, instead it has been signed and pursued by the GPA holder;

ii. the affidavit supporting the petition too has been signed by the said attorney;

iii. the Power of Attorney was neither duly signed nor registered, it could not confer any authority upon the attorney either to file the ____________________________________________________________________________________________________________

petition or to pursue it before the Tribunal, Rent Control Act. iv. the Power of Attorney on the basis of which the eviction petition has been filed itself discloses that the respondent/eviction- petitioner has a number of other properties;

v. the so called landlord is not the owner of the suit premises, which actually has been erected on public land and it is not attached to the property of the petitioner;

vi. the respondent would be at an advanced age of 85 years now and he as, according to the petitioners‟ knowledge the former is approximately 75 years old when the eviction-petition was filed and he was not in good health and, therefore;

vii. the requirement was neither bona fide nor so proved;

Mr. Vinod Sharma, the learned counsel for the petitioner submits that for the aforesaid reasons the impugned order ought to be set aside. Furthermore, he submits that the order suffers from material irregularities inasmuch as it takes into account documents which are inadmissible in law and on a petition which has neither been properly signed, nor sworn in accordance with law; that there is no relationship of landlord and tenant between the parties; that the eviction petitioner was not the landlord but only a rent collector, therefore, this Court in exercise of revisional jurisdiction should set aside the impugned order.

This Court notes that the Trial Court had addressed each of the aforesaid arguments in detail and found none of them raised triable issues, warranting grant of leave to defend. It concluded that except for bald averments, no details of any properties had been mentioned in the application seeking leave to defend, which could be said to be suitable alternate accommodation being available to the landlord to meet his bona fide ____________________________________________________________________________________________________________

requirement. On the basis of record the Trial Court found that the relationship of landlord and tenant has been admitted by the tenant in the application for leave to defend itself; that the landlord having a superior right than the tenant and his having shown his bona fide need, the landlord was entitled to an order for eviction under Section 14(1)(e) read with Section 25B of the Act. A careful reading of the aforesaid seven (7) points would reveal that they can be clubbed under three broad heads, i.e., (i), (ii) & (iii), regarding the power of attorney; (v) regarding the petitioners‟ lack of ownership of the suit premises and (iv) and (vii) that there was no bona fide requirement of the landlord in view of his advanced age and infirm health.

The Trial Court has considered the arguments apropos the authority the Power of Attorney holder to file the petition and to file documents on record and determined that the petition was filed with due authority. The reasoning of the Trial Court is as under:-

"The other ground taken by the respondents is that the petition has not been filed by the petitioner and the same is filed by his General Power of Attorney. The petitioner has submitted in his General Power of Attorney holder under his instructions who is otherwise his real nephew and the same has been signed by him. The copy of the same is placed on record by the petitioner. The perusal of the same also shows that the General Power of Attorney has been executed by the petitioner in favour of Sh. M. Salim. Therefore, there is no merit in the contention of the respondents that the petition is not maintainable as the same is not filed by the petitioner himself or through his legally appointed attorney. Hence, the aforesaid ground taken by the respondents is also rejected accordingly."

In Jatinder Kaur v. Rohit Chopra: (2011) 163 PLR 667, (2011) 2 RCR (Rent) 262, the High Court of Punjab and Haryana held:

"Insofar as the second issue with regard to the ____________________________________________________________________________________________________________

authorization of the General Power of Attorney to file the present eviction petition is concerned, it is specifically mentioned in Clause 6 of the General Power of Attorney that "to rent out/let out the said property to any tenant/tenants, to enter into such rent agreements/lease deeds, to receive and recover the rents, to issue receipts thereof, to eject the tenant/s personally or through court of law, to replace them/him with others, under his own signatures". To my mind, the language used in this paragraph of the General Power of Attorney has empowered the General Power of Attorney to file eviction petition as it provides that he can seek ejectment of the tenant through Court. Thus, I do not find any triable issue in this regard for which the permission has been granted by the learned Rent Controller."

Such being the position in law what would be required to be ascertained in the present case is, what were the powers that the General Power of Attorney vests in its holder. Clauses (1) & (12) of the said document reads as under:

"1. To appear and act in all the courts, civil, revenue or criminal whether original or appellate, in the registration offices or in any other office of Government or District Board, Municipal Board or Notified Area or any other local authority."

.... .... .... .... ....

"12. To collect rents from tenants of houses, shops, plots and compounds belonging to me and to give receipts for the same and to eject tenants from and settle new tenants in the said houses, shops, plots and compounds whenever he considers this to be in my interest and to take all necessary steps legal and otherwise which may be required for the purpose."

A combined reading of the two clauses leads to the only inevitable conclusion, that the GPA holder does have authority to file the eviction petition and pursue it on behalf of the landlord.

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The tenant/petitioner‟s contention that the landlord who is above 80 years of age, as in the present case, and allegedly not keeping good health, cannot have a need for an additional space as sought in the eviction petition is only stated to be rejected. Age and health cannot lessen a landlord‟s bona fide requirement for suitable accommodation. On the contrary it is sometimes both these factors that would aggravate the need for space. Insofar as the landlord may desire to better his lot either by way of a more suitable accommodation or his need to start a commercial venture or to augment his income, has age and infirmity of health cannot be deemed to be an obstacle in his seeking eviction of a tenant from a property which the landlord deems suitable for his need. With the improvement in medical care and advancement in life sciences, human longevity has increased significantly. People even in the 9th decade of human existence are known to carry on the management of their businesses and other temporal affairs with their direct or supervisory control. It is the nature of human beings to always strive to better their lot. Human endeavour to survive with dignity and to lead a meaningful life cannot be blighted by age, corporal frailty, affliction or any legal process either. The aspiration is natural and the right to aspire and to achieve it, a human right. The landlord seeking the eviction of his tenant from a property, the need of which is otherwise found to be bona fide, cannot be undermined or constrained by the tenant‟s contention that the landlord is old and/or infirm. This has been eloquently summed up in the words of American poet „Dylan Thomas‟, when he exhorts his terminally ill father to not give up the battle to live:

"Do not go gentle into that good night, Old age should burn and rage at close of day;

Rage, rage against the dying of the light."

The arguments raised by the learned counsel for the petitioner ____________________________________________________________________________________________________________

have been duly taken into account in the impugned order. This Court too has seen that the arguments regarding alternate property is not tenable, since no other property was identified by the tenant as being suitably available to the landlord. To tenant‟s contention of the availability of property No.2169, which is adjacent to the suit property, the landlord has denied its ownership. Obviously in the absence of ownership of the property adjacent to the suit property, the same could not be said to be available to the landlord as an alternate accommodation, neither had the tenant supported his contention with any documents to ex facie show that it was a triable issue. The mere references to other properties in the estate of the landlord does not render them suitable available alternate accommodation, such that a triable issue would be raised and the eviction order under Section 25B of the Act could be denied. The landlord had shown that he had no other property except the tenanted premises and it was most suitable for his needs. Accordingly, the Trial Court found the bona fide need to exist and the eviction order was passed. The landlord had reiterated that except the suit property he was not the owner of any other property in the locality. The tenant had failed to disclose which other properties of the petitioner were lying vacant or were more comfortable to the petitioner. In the circumstances this Court concurs with the Trial Court that no triable issues were raised in this regard.

The landlord had also denied that the suit property is just a side- window on the Government land, and he reiterated the site plan filed in the proceedings. The Trial Court found that the tenants‟ averments in this regard were vague since they had not specified as to what was the measurement of the shop and in what manner the landlord‟s site plan was incorrect. The tenants had not filed their own site plan to controvert the one filed by the landlord nor had they filed any document to show that the land belonged to the Government. Therefore, the tenants‟ arguments in this regard were held ____________________________________________________________________________________________________________

to be merely bald assertions, and were rightly rejected.

Furthermore, the petitioner had submitted in his reply that the present petition has been filed on his behalf by his GPA holder, under his instructions, and that the GPA holder is otherwise his real nephew and the same had been signed by him. Therefore, the Trial Court was right in concluding that the eviction petition was supported by due authority and requisite affidavit.

The petitioner had not raised any other ground to be considered as a triable issue and in any case, neither of the grounds were found to be a triable issue for granting leave to defend.

In view of the aforesaid discussion this Court is of the view that the impugned order does not suffer from any material irregularity or infirmity. The reasons contained in it are convincing and based on the record. Therefore, it does not call for any interference by this Court. The petition is without any merit and is accordingly dismissed.

NAJMI WAZIRI, J APRIL 04, 2014/rb/b'nesh

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