"Waiver of notice to quit u/s 113, determination of tenancy U/S106 and deposition by power of attorney holder on behalf of landlord are the main questions involved in this petition."
1. Heard Shri Manu Khare, learned counsel for the defendants-tenants/petitioners and Shri Chetan Prakash, learned counsel for the plaintiff-respondent.
Facts
2. A shop in house No. D-58/12A-82, Gandhi Nagar, Sigra, Varanasi, was let out by its owner and landlady Smt. Sita Devi Agarwal (the plaintiff-respondent) to the defendants-tenants/petitioners no. 1 & 2 under a rent agreement dated 06.01.2009 at the monthly rent of Rs. 2,005/-. The tenancy commenced from 01.01.2009. Thereafter mutually the rent was enhanced with effect from 11.02.2011, from Rs. 2,005/- to Rs. 3,000/- per month. On 09.09.2013, the plaintiff-landlady/respondent issued a notice under Section 106 of the Transfer of Property Act, 1882 (hereinafter referred to as "the Act 1882") to the defendants-tenants/petitioners determining the tenancy. Since the notice was not complied with by the defendants-tenants/petitioners, therefore, the plaintiff-landlady filed SCC Suit No. 49 of 2014 (Smt. Sita Devi Agarawal v. Pawan Kumar & Ors.) which was decreed by judgment and decree dated 24.08.2017 passed by the Judge Small Cause Court, Varanasi. Aggrieved with this judgment the defendants-tenants/petitioners filed S.C.C. Revision No. 15 of 2017 (Pawan Kumar and Anr. v. Sita Devi), which was dismissed by the Additional District Judge/ FTC-1, Varanasi by judgment dated 15.07.2019. Aggrieved with these two judgments, the defendants-tenants/ petitioners have filed the present petition under Article 227 of the Constitution of India.
Submissions
3. Learned counsel for the defendants-tenants/ petitioners, submits as under:-
i. The plaintiff-landlady has not appeared in the witness box rather her son and power of attorney holder Anoop Kumar Agarwal appeared and gave evidence, which is impermissible in view of the law laid down by Hon'ble Supreme Court in Janki Vashdeo Bhojwani & Anr. vs. Indusind Bank Ltd. & Ors 2005 2 SCC 217, (para 13). The judgment of learned Single Judge in Union of India and another v. Sudarshan Lal Talwar, AIR 2002 (Allahabad) 212 relied by the plaintiff-respondent, has no application in view of the judgment of Hon'ble Supreme Court.
ii. A power of attorney was executed by the landlady Sita Devi Agarwal in favour of her son Anoop Kumar Agarwal on 17.07.2014 and thereafter, suit was instituted on 05.08.2014. Therefore, if the son of the plaintiff was well acquainted with all the facts of the case and competent to depose on behalf of the plaintiff-landlady, there was no need to execute the power of attorney. In fact, the son of the plaintiff-landlady was not aware of the facts of the case and therefore, he was not competent to depose on behalf of the plaintiff-landlady.
iii. In view of Section 111(h) readwith Section 113 of the Transfer of Property Act, 1882, the institution of a suit after one year of the notice would amount to waiver of the notice. The notice given by the plaintiff-landlady under Section 106 of the Act, 1882 was no notice in the eyes of law.
iv. The aforesaid notice was issued by the plaintiff-landlady for setting up the business for her son in the disputed shop who wanted to take franchise of Raymond.
v. Subsequently the plaintiff-landlady stated that she could not get franchiese of Raymond because the place was not available whereas in his cross examination son of the plaintiff-landlady has admitted that the shop was not suitable for franchiese of Raymonds. Thus, the need set up by the plaintiff-landlady was not bonafide.
vi. The defendants-tenants/petitioners have not violated any of the conditions of the rent agreement dated 06.01.2009. Therefore, the court below could not have granted a decree of eviction.
vii. Notice was issued by the plaintiff-landlady on 11.09.2013 under Section 106 of the Act, 1882 while the suit was instituted on 05.08.2014 and, therefore, the notice stood waived.
4. In support of his submissions Sri Khare, has relied upon the judgment of Hon'ble Supreme Court in Man Kaur (dead) by Lrs. Vs. Hartar Singh Sangha (2010)10 SCC 512 (para 18) and Sarup Singh Gupta Vs. S. Jagdish Singh and others (2006) 4 SCC 205 (para 6).
5. Learned counsel for the plaintiff-landlady/respondent submits as under:-
(i) The plaintiff has neither waived notice nor there is any material to indicate that there was any intention of the plaintiff to waive the notice. On the contrary after giving notice, the plaintiff-landlady instituted the suit on 05.08.2014. Thus, the submissions of learned counsel for the petitioner that the notice stood waived is wholly incorrect and misconceived
(ii) Anoop Kumar Agarwal is the only son of the plaintiff-landlady to whom she has given power of attorney. He gave evidence as P.W. 1 in his personal capacity. That apart he was well aware of all the facts of the case and, therefore, was competent to depose. Submission of learned counsel for the petitioner are wholly incorrect. Both the courts below have also found that the evidence given by plaintiff's son was in his personal capacity.
(iii) After giving notice to the tenant the tenancy stood determined. Therefore, the defendant-tenant/petitioner was bound to vacate the disputed shop. That apart the bonafide need of the disputed shop was fully established by the plaintiff-landlady/respondent.
6. In support of his submissions, learned counsel for the plaintiff-landlady/respondent has relied upon a judgment of this court in Union of India Vs. Sudarshal Lal Talwar, 2002 AIR (All) 212.
Discussion & Findings
7. I have carefully considered the submissions of learned counsels for the parties.
Waiver of Notice
8. The submission of learned counsel for the defendant-tenant/petitioner that the plaintiff-landlady has waived notice dated 11.09.2013 by filing the suit after about 11 months on 05.08.2014 is wholly misconceived. Section 106 of the Act 1882 provides for termination of tenancy by notice. It does not provide that the notice of the landlord terminating the tenancy shall stand waived if suit is not filed within a particular period. Likewise Section 111(h) of the Act 1882 also does not provide for any limitation for filing a suit after giving notice to quit. On the contrary it provides that lease of immovable property shall stand determined on expiration of a notice to determine the lease or to quit, or of intention to quit, the property leased, duly given by one party to the other. Section 113 of the Act 1882 provides that notice given under Section 111 Clause (h) is waived, with the express or implied consent of the person to whom it is given, by any act on the part of the person giving it showing an intention to treat the lease as subsisting.
9. Section 113 of the Act 1882 contains two conditions to waiver, namely :-
(i) Express or implied consent of the person to whom it is given, by any act on the part of the person giving it
(ii) which shows an intention to treat the lease as subsisting.
10. The principles of waiver are well settled. A waiver is an intentional relinquishment of a known right. There can be no waiver unless the person against whom the waiver is claimed had full knowledge of his rights and of facts enabling him to take effectual action for the enforcement of such rights. Intention of the landlord to treat the lease as subsisting and his knowledge of the fact that his conduct amounts to waiver, are the basic essentials of waiver contained in Section 113 of the Act 1882.
11. Facts of the present case leaves no manner of doubt that the plaintiff-landlady/respondent has never waived notice under Section 113 of the Act 1882. On the contrary, after determining the tenancy by notice dated 11.9.2013, she instituted SCC Suit No.49 of 2014 (Sita Devi Vs. Pawan Kumar and others) on 5.8.2014. She has been contesting the suit. Thus, no element of waiver of notice can be inferred on the facts of the present case. In the present case even rent was not accepted by her after determining the tenancy. Hon'ble Supreme Court in Ganga Dutt Murarka Vs. Kartik Chandra Das & others, AIR 1961 SC 1067 and this court in Anis Ahmad Vs. Special Judge/Additional District Judge, Saharanpur 1997(2) ARC 32 have held that mere acceptance of arrears of rent after expiry of notice or acceptance of rent for the period subsequent to the date of termination of tenancy by the landlord, does not amount to waiver of notice determining the tenancy under Section 106. Similar view has also been taken by this Court in Union of India and another Vs. Sudarshan Lal Talwar (supra).
12. The provisions of Section 113 of the Act has again been interpreted by Hon'ble Supreme Court in Sarup Singh Gupta's case (supra) which also does not support the case of the petitioner. Paragraph 6 and 8 of the said judgment is reproduced below:-
"6. The Learned Senior Counsel also relied upon a decision of a learned Single Judge of the Calcutta High Court in Manicklal Dey Chaudhuri v. Kadambini Dassi AIR 1926 Cal 763 wherein it was held that where rent is accepted after the notice to quit, whether before or after the suit has been filed, the landlord thereby shows an intention to treat the lease as subsisting and, therefore, where rent deposited with the Rent Controller under the Calcutta Rent Act is withdrawn even after the ejectment suit is filed, the notice to quit is waived. In our view, the principle laid down in the aforesaid judgment of the High Court is too widely stated, and cannot be said to be an accurate statement of law. A mere perusal of section 113 leaves no room for doubt that in a given case, a notice given under section 111, clause (h), may be treated as having been waived, but the necessary condition is that there must be some act on the part of the person giving the notice evincing an intention to treat the lease as subsisting. Of course, the express or implied consent of the person to whom such notice is given must also be established. The question as to whether the person giving the notice has by his act shown an intention to treat the lease as subsisting is essentially a question of fact. In reaching a conclusion on this aspect of the matter, the Court must consider all relevant facts and circumstances, and the mere fact that rent has been tendered and accepted, cannot be determinative.
8. In the instant case, as we have noticed earlier, two notices to quit were given on 10-2-1979 and 17-3-1979. The suit was filed on 2-6-1979. The tenant offered and the landlord accepted the rent for the months of April, May and thereafter. The question is whether this by itself constitutes an act on the part of the landlord showing an intention to treat the lease as subsisting. In our view, mere acceptance of rent did not by itself constitute an act of the nature envisaged by section 113, Transfer of Property Act showing an intention to treat the lease as subsisting. The fact remains that even after accepting the rent tendered, the landlord did file a suit for eviction, and even while prosecuting the suit accepted the rent which was being paid to him by the tenant. It cannot, therefore, be said that by accepting rent, he intended to waive the notice to quit and to treat the lease as subsisting. We cannot ignore the fact that in any event, even if rent was neither tendered nor accepted, the landlord in the event of success would be entitled to the payment of the arrears of rent. To avoid any controversy, in the event of termination of lease the practice followed by the courts is to permit the landlord to receive each month by way of compensation for the use and occupation of the premises, an amount equal to the monthly rent payable by the tenant. It cannot, therefore, be said that mere acceptance of rent amounts to waiver of notice to quit unless there be any other evidence to prove or establish that the landlord so intended. In the instant case, we find no other fact or circumstance to support the plea of waiver. On the contrary the filing of and prosecution of the eviction proceeding by the landlord suggests otherwise."
13. In view of the discussion, I do not find any force in the submission of learned counsel for the defendant-tenant/petitioner that the notice dated 11.9.2013 stood waived Determination of Tenancy by notice U/S 106 of the Act, 1882 and Bonafide need
14. Section 106 of the Act 1882, provides as under :-
"106. Duration of certain leases in absence of written contract or local usage-
"(1) In the absence of a contract or local law or usage to the contrary, a lease of immovable property for agricultural or manufacturing purposes shall be deemed to be a lease from year to year, terminable, on the part of either lessor or lessee, by six months' notice; and a lease of immovable property for any other purpose shall be deemed to be a lease from month to month, terminable, on the part of either lessor or lessee, by fifteen days' notice.
(2) Notwithstanding anything contained in any other law for the time being in force, the period mentioned in sub-section(1) shall commence from the date of receipt of notice.
(3) A Notice under sub-section(1) shall not be deemed to be invalid merely because the period mentioned therein falls short of the period specified under that sub-section, where a suit or proceeding is filed after the expiry of the period mentioned in that sub-section.
(4) Every notice under sub-section(1) must be in writing, signed by or on behalf of the person giving it, and either be sent by post to the party who is intended to be bound by it or be tendered or delivered personally to such party, or to one of his family or servants at his residence, or (if such tender or delivery is not practicable) affixed to a conspicuous part of the property."
15. Admittedly, the rent of the disputed shop was Rs.3000/-, per month. Therefore, the provisions of U.P. Act No.XIII of 1972 are not applicable. The notice dated 11.09.2013 under Section 106 of the Act, 1882 was issued by the plaintiff-landlady for termination of the tenancy on expiry of 30 days. Thus, the tenancy stood terminated on expiry of the period of notice.
16. In Jeevan Dass vs. L.I.C. (1994) Suppl. 3 SCC 694, Hon'ble Supreme Court held that "Section 106 of the T.P. Act does indicate that the landlord is entitled to terminate the tenancy by giving 15 days' notice, if it is a premises occupied on monthly tenancy and by giving 6 months' notice and if the premises are occupied for agricultural or manufacturing purposes; and on expiry thereof proceedings could be initiated. Section 106 of the T.P. Act does not contemplate of giving any reason for terminating the tenancy." Undisputedly in the present set of facts, the tenancy was on month to month basis and a notice date 09.09.2013 determining the tenancy was issued by the plaintiff landlady to the defendant-tenant and the tenancy stood determined on expiry of the period of notice on 30 days. Thereafter the plaintiff-landlady instituted SCC Suit No.49 of 2014 for eviction of the defendant-tenant.
17. In Sri Ram Urban Infrastructure Ltd. vs. High Court of Bombay, (2015) 5 SCC 539 (Para-18), Hon'ble Supreme Court held that "if the notice is a short of the period specified in Sub-Section (1) but the suit or proceeding is filed after the expiry of the period mentioned in Sub-Section (1), the notice shall not be deemed to be invalid even though the suit was filed after six months of the notice."
18. In Vasantkumar Radhakisan Vora vs. Board of Trustees of the Port of Bombay, (1991) 1 SCC 761 (Para-6), Hon'ble Supreme Court held that "by issuance of notice to quit automatically the right created thereunder, namely, cessation of the lease, does not become effective till the period prescribed in the notice or in the statute i.e. Section 106 expires. On expiry thereof the lease becomes inoperative and the lessor acquires right to have the tenant ejected. When the tenant fails to deliver vacant possession, the lessor would be entitled to have the tenant ejected and to take possession in due process of law."
19. In Tata Steel Limited vs. State of Jharkhand, (2015) 15 SCC 55 (Para-33), Hon'ble Supreme Court held that "Section 111 of the Transfer of Property Act specifies various contingencies in which a lease of immovable property determines. Clause (h) stipulates that expiration of a notice to determine the lease duly given by the lessor (in compliance with the requirement of Section 106) is one of such contingencies but the Transfer of Property Act, does not authorise the lessor to physical recovery of possession of the property on the determination of the lease. The lessor is still required to approach the competent court for recovery of possession of the property over which the lease is terminated." Thus, on expiry of period of notice under Section 106 of the Act, 1882, the contractual tenancy of the disputed property stood determined. For recovery of possession, the plaintiff-landlady has approached the competent court by filing the SCC suit.
20. In V. Dhanapal Chettiar v. Yesodai Arnrnal, (1979) 4 SCC 214, a Seven Judges Constitution Bench of Hon'ble Supreme Court held that "in the matter of determination of tenancy, the State Rent Acts do not permit a landlord to snap his relationship with the tenant merely by serving on him a notice to quit as is the position under the Transfer of Property Act." The landlord can recover possession of the property only on one or more of the grounds enacted in the relevant section of the Rent Act. Even after the termination of the contractual tenancy, the landlord under the definitions of landlord and tenant contained in the Rent Acts, remains a landlord and a tenant remains a tenant. The difference between the position obtaining under the Transfer of Property Act and the Rent Act in the matter of determination of a lease is that under the former Act in order to recover possession of the leased premises, determination of the lease is necessary because during the continuance of the lease, the landlord cannot recover possession of the premises while under the Rent Acts, the landlord becomes entitled to recover possession only on the fulfilment of the conditions laid down in the relevant sections. He cannot recover possession merely by determining the tenancy. Nor can he be stopped from doing so on the ground that he has not terminated the contractual tenancy. The principle laid in V. Dhanapal Chettiar (supra) has also been followed in Majati Subbarao vs P.K.K. Krishna Rao, (1989) 4 SCC 732 (Para-5). In V. Dhanapal Chettiar (supra), a Seven Judges Constitution Bench of Hon'ble Supreme Court in para-6 appropriately explained the provisions of Section 106 and Section 111 (h) of the Act, 1882 and held as under:-
"6. Section III deals with the question of determination of lease, and in various clauses (a) to (h) methods of determination of a lease of immovable property are provided. Clause (g) deals with the forfeiture of lease under certain circumstances and at the end are added the words "and in any of these cases the lessor or his transferee gives notice in writing to the lessee of his intention to determine the lease." The notice spoken of in clause (g) is a different kind of notice and even without the State Rent Acts different views have been expressed as to whether such a notice in all cases is necessary or not. We only observe here that when the State Rent Acts provide under what circumstances and on what grounds a tenant can be evicted, it does provide that a tenant forfeits his right to continue in occupation of the property and makes himself liable to be evicted on fulfilment of those conditions. Only in those State Acts where a specific provision has been made for the giving of any notice requiring the tenant either to pay the arrears of rent within the specified period or to do any other thing, such as the Bombay Rent Act or the West Bengal Rent Act, no notice in accordance with clause (g) is necessary. A lease of immovable property determines under clause (h):-
"On the expiration of a notice to determine the lease, or to quit, or of intention to quit, the property leased, duly given by one party to the other."
It is this clause which brings into operation the requirement of section 106 of the Transfer of Property Act. Without adverting to the effect and the details of waiver of forfeiture, waiver of notice to quit, relief against forfeiture for non-payment of rent etc. as provided for in sections 112 to 114A of the Transfer of Property Act, suffice it to say that under the said Act no ground of eviction of a tenant has to be made out once a contractual tenancy is put to an end by service of a valid notice under section 106 of the Transfer of Property Act. Until and unless the lease is determined, the lessee is entitled to continue in possession. Once it is determined it becomes open to the lessor to enforce his right of recovery of possession of the property against him. In such a situation it was plain and clear that if the lease of the immovable property did not stand determined under any of the clauses (a) to (g) of section 111, a notice to determine it under section 106 was necessary. But when under the various State Rent Acts, either in one language or the other, it has been provided that a tenant can be evicted on the grounds mentioned in certain sections of the said Acts, then how does the question of determination of a tenancy by notice arise? If the State Rent Act requires the giving of a particular type of notice in order to get a particular kind of relief, such a notice will have to be given. Or, it may be, that a landlord will be well advised by way of abundant precaution and in order to lend additional support to his case, to give a notice to his tenant intimating that he intended to file a suit against him for his eviction on the ground mentioned in the notice. But that is not to say that such a notice is compulsory or obligatory or that it must fulfil all the technical requirements of section 106 of the Transfer of Property Act. Once the liability to be evicted is incurred by the tenant, he cannot turn round and say that the contractual lease has not been determined. The action of the landlord in instituting a suit for eviction on the ground mentioned in any State Rent Act will be tantamount to an expression of his intention that he does not want the tenant to continue as his lessee and the jural relationship of lessor and lessee will come to an end on the passing of an order or a decree for eviction. Until then, under the extended definition of the word 'tenant' under the various State Rent Acts, the tenant continues to be a tenant even though the contractual tenancy has been determined by giving a valid notice under section 106 of the Transfer of Property Act. In many cases the distinction between a contractual tenant and a statutory tenant was alluded to for the purpose of elucidating some particular aspects which cropped up in a particular case. That led to the criticism of that expression in some of the decisions. Without detaining ourselves on this aspect of the matter by any elaborate discussion, in our opinion, it will suffice to say that the various State Rent Control Acts make a serious encroachment in the field of freedom of contract. It does not permit the landlord to snap his relationship with the tenant merely by his act of serving a notice to quit on him. In spite of the notice, the law says that he continues to be a tenant and he does so enjoying all the rights of a lessee and is at the same time deemed to be under all the liabilities such as payment of rent etc. in accordance with the law."
21. In the aforesaid judgemnt in V. Dhanapal Chettiar (supra), a Seven Judges Constitution Bench of Hon'ble Supreme Court referred to the earlier Five Judges Bench judgment of Mangilal vs. Suganchand Rathi, AIR 1965 SC 101 in which it was held as under:-
"The Accommodation Act does not in any way abrogate Chapter V of the Transfer of Property Act which deals with leases of immovable property. The requirement of Section 106 of the Transfer of Property Act is that a lease from month to month can be terminated only after giving fifteen days' notice expiring with the end of a month of the tenancy either by the landlord to the tenant or by the tenant to the landlord. Such a notice is essential for bringing to an end the relationship of landlord and tenant. Unless the relationship is validly terminated the landlord does not get the right to obtain possession of the premises by evicting the tenant. Section 106 of the Transfer of Property Act does not provide for the satisfaction of any Additional requirements. But then, Section 4 of the Accommodation Act steps in and provides that unless one of the several grounds set out therein is established or exists, the landlord cannot evict the tenant."
22. Thus, in the present set of facts after the tenancy was terminated by the landlady on expiry of the period of notice dated 09.09.2013 under Section 106 of the Transfer of Property Act, the consequence is that the relationship of landlady and tenant between the plaintiff-landlady and the defendant-tenant/ petitioner came to an end and the landlady has right to obtain possession of the disputed shop by evicting the tenant.
23. Much insistence has been laid by learned counsel for the tenants-petitioners on two lines of the evidence of P.W. 1 that the space of the disputed shop is not sufficient for the franchise. I have looked into the evidence of P.W. 1. The evidence of P.W. 1 has to be read as a whole and not in isolation. I find that P.W.1 has very specifically stated that adjoining the disputed shop is the shop of his father of Hosiery Goods. He narrated in detail that the tenants-petitioners have not vacated the disputed shop even after the tenancy was determined. Negotiations were going on for the franchise but he could not get the franchise. In his evidence on 17.11.2016, P.W.1 stated that for dealership company gave six months time to arrange for accommodation but the accommodation could not be arranged.
24. Both the courts below have recorded the concurrent findings of fact based on consideration of relevant evidences on record that need of the plaintiff-landlady for the disputed shop is her bonafide need. Therefore, it requires no interference.
Whether son/power of attorney holder of a landlord can depose on behalf of the landlord in a rent case in regard to matters involving personal knowledge:-
25. In support of his submission that the P.W. 1 could not have deposed on behalf of the plaintiff-landlady, learned counsel for the defendants-tenants/petitioners has relied upon the judgment of Hon'ble Surpeme Court in Man Kaur (supra)(paragrap 18), as under:-
"18. We may now summarise for convenience, the position as to who should give evidence in regard to matters involving personal knowledge:
(a) An attorney holder who has signed the plaint and instituted the suit, but has no personal knowledge of the transaction can only give formal evidence about the validity of the power of attorney and the filing of the suit.
(b) If the attorney holder has done any act or handled any transactions, in pursuance of the power of attorney granted by the principal, he may be examined as a witness to prove those acts or transactions. If the attorney holder alone has personal knowledge of such acts and transactions and not the principal, the attorney holder shall be examined, if those acts and transactions have to be proved.
(c) The attorney holder cannot depose or give evidence in place of his principal for the acts done by the principal or transactions or dealings of the principal, of which principal alone has personal knowledge.
(d) Where the principal at no point of time had personally handled or dealt with or participated in the transaction and has no personal knowledge of the transaction, and where the entire transaction has been handled by an attorney holder, necessarily the attorney holder alone can give evidence in regard to the transaction. This frequently happens in case of principals carrying on business through authorized managers/attorney holders or persons residing abroad managing their affairs through their attorney holders.
(e) Where the entire transaction has been conducted through a particular attorney holder, the principal has to examine that attorney holder to prove the transaction, and not a different or subsequent attorney holder.
(f) Where different attorney holders had dealt with the matter at different stages of the transaction, if evidence has to be led as to what transpired at those different stages, all the attorney holders will have to be examined.
(g) Where the law requires or contemplated the plaintiff or other party to a proceeding, to establish or prove something with reference to his "state of mind" or "conduct", normally the person concerned alone has to give evidence and not an attorney holder. A landlord who seeks eviction of his tenant, on the ground of his "bona fide" need and a purchaser seeking specific performance who has to show his ''readiness and willingness' fall under this category. There is however a recognized exception to this requirement. Where all the affairs of a party are completely managed, transacted and looked after by an attorney (who may happen to be a close family member), it may be possible to accept the evidence of such attorney even with reference to bona fides or ''readiness and willingness'. Examples of such attorney holders are a husband/wife exclusively managing the affairs of his/her spouse, a son/daughter exclusively managing the affairs of an old and infirm parent, a father/mother exclusively managing the affairs of a son/daughter living abroad.
26. The judgment of Hon'ble Supreme Court in Janki Vashdeo Bhojwani case (supra) relied by learned counsel for the petitioner has no application on the facts of the present case since it relates to filing of a suit due to non payment of loan by the borrower and not in a rent case.
27. Besides above, both the courts below have found that the P.W. 1 Anoop Kumar is the only son and power of attorney holder of the plaintiff landlady who has given his evidence in his personal capacity. This is a findings of fact.
28. Undisputedly, the plaintiff-landlady has appointed her power of attorney to Sri Anoop Kumar Agarwal who is the only son of the plaintiff-landlady. In paragraph-2 of the plaint of the S.C.C. Suit No.49 of 2014, it was clearly stated that the plaintiff-landlady is an old lady and often remains ill, and, therefore, on her behalf, her son Anoop Kumar Agarwal has always been looking after and maintaining the disputed house and collecting rent from tenants and taking action for eviction etc. The contents of this paragraph has been admitted by the defendant-tenant/ petitioner in paragraph-2 of the written statement. Thus, the evidence given by the power of attorney holder Sri Anoop Kumar Agarwal (son), falls under the recognised exception of the requirement of giving evidence by the landlord who seeks eviction of his tenant on the ground of his bona fide need. Admittedly, power of attorney holder and the only son Sri Anoop Kumar Agarwal has been exclusively managing the affairs relating to the house in question owned by his mother Smt. Sita Devi who is an old lady and often remains ill. Therefore, the deposition made by him, cannot be said to suffer from any legal infirmity, particularly in view of the law laid down by Hon'ble Supreme Court in the case of Man Kaur (supra).
Conclusion:-
29. Conclusions reached in foregoing paragraphs of this judgment, are briefly summarized as under:
(i) Intention of landlord to treat the lease as subsisting and his knowledge of the fact that his conduct amounts to waiver, are the basic essentials of waiver contained in Section 113 of the Act 1882.
(ii) Facts of the present case leaves no manner of doubt that the plaintiff-landlady/respondent has never waived her notice under Section 113 of the Act 1882. On the contrary, after determining the tenancy by notice dated 11.9.2013, she instituted SCC Suit No.49 of 2014 (Sita Devi Vs. Pawan Kumar and others) on 5.8.2014. She has been contesting the suit. Thus, no element of waiver of notice can be inferred on the facts of the present case.
(iii) Mere acceptance of rent did not by itself constitute an act of the nature envisaged by section 113 of the Transfer of Property Act showing an intention to treat the lease as subsisting. Even after accepting the rent tendered, a landlord may file a suit for eviction, and even while prosecuting the suit he may accept the rent which was being paid to him by the tenant. It cannot, therefore, be said that mere acceptance of rent amounts to waiver of notice to quit unless there be any other evidence to prove or establish that the landlord so intended.
(iv) Section 106 of the T.P. Act does indicate that the landlord is entitled to terminate the tenancy by giving 15 days' notice, if it is a premises occupied on monthly tenancy and by giving 6 months' notice if the premises is occupied for agricultural or manufacturing purposes; and on expiry thereof proceedings could be initiated. Section 106 of the T.P. Act does not contemplate of giving any reason for terminating the tenancy.
(v) By issuance of notice to quit automatically the right created thereunder, namely, cessation of the lease, does not become effective till the period prescribed in the notice or in the statute i.e. Section 106 expires. On expiry thereof the lease becomes inoperative and the lessor acquires right to have the tenant ejected. When the tenant fails to deliver vacant possession, the lessor would be entitled to have the tenant ejected and to take possession in due process of law.
(vi) The difference between the position obtaining under the Transfer of Property Act and the Rent Act in the matter of determination of a lease is that under the former Act in order to recover possession of the leased premises, determination of the lease is necessary because during the continuance of the lease, the landlord cannot recover possession of the premises while under the Rent Act, the landlord becomes entitled to recover possession only on the fulfilment of the conditions laid down in the relevant sections. He cannot recover possession merely by determining the tenancy. Nor can he be stopped from doing so on the ground that he has not terminated the contractual tenancy.
(vii) In the present set of facts after the tenancy was terminated by the landlady on expiry of the period of notice dated 09.09.2013 under Section 106 of the Transfer of Property Act, the consequence is that the relationship of landlady and tenant between the plaintiff-landlady and the defendant-tenant/ petitioner came to an end and the landlady has acquired right to obtain possession of the disputed shop by evicting the tenant.
(viii) Both the courts below have recorded concurrent findings of fact based on consideration of relevant evidences on record that need of the plaintiff-landlady for the disputed shop is her bonafide need. Therefore, it requires no interference.
(ix) Where the law requires or contemplated the plaintiff or other party to a proceeding, to establish or prove something with reference to his "state of mind" or "conduct", normally the person concerned alone has to give evidence and not an attorney holder. A landlord who seeks eviction of his tenant, on the ground of his "bona fide" need and a purchaser seeking specific performance who has to show his ''readiness and willingness' fall under this category. There is however a recognized exception to this requirement. Where all the affairs of a party are completely managed, transacted and looked after by an attorney (who may happen to be a close family member), it may be possible to accept the evidence of such attorney even with reference to bona fides or ''readiness and willingness'. Examples of such attorney holders are a husband/wife exclusively managing the affairs of his/her spouse, a son/daughter exclusively managing the affairs of an old and infirm parent, a father/mother exclusively managing the affairs of a son/daughter living abroad.
(x) Admittedly, power of attorney holder and the only son Sri Anoop Kumar Agarwal has been exclusively managing the affairs relating to the house in question owned by his mother Smt. Sita Devi who is an old lady and often remains ill. Therefore, the deposition made by him, cannot be said to suffer from any legal infirmity, particularly in view of the law laid down by Hon'ble Supreme Court in the case of Man Kaur (supra).
30. For all the reasons aforestated, I do not find any merit in this petition. Consequently, the petition is hereby dismissed.
31. After this judgment was dictated in open court, learned counsel for the defendant-tenant/petitioner states on instructions that the petitioner shall vacate the disputed shop and shall handover its vacant and peaceful possession to the plaintiff-landlady/respondent on or before 31.03.2020 and shall also pay to the plaintiff-landlady a sum of Rs.30,000/- for the use and occupation of the disputed shop for the period from today till 31.03.2020, within a month and, therefore till 31.03.2020 the defendant-tenant/petitioner may not be dispossessed from the disputed shop. Learned counsel for the plaintiff-landlord/respondent has no serious objection to the aforesaid request.
32. Considering the statement made by the defendant-tenant/petitioner as aforenoted, it is provided as under:-
i). If the defendant-tenant/petitioner submits an undertaking to the aforesaid affect before the court below and also deposit Rs.30,000/- within a month from today, then in that event he shall not be dispossessed from the disputed shop till 31.03.2020.
ii). In the event, either the undertaking as aforesaid is not submitted or a sum of Rs. 30,000/- is not deposited within the stipulated period, then the protection given to the defendant-tenant/petitioner under this order shall automatically stand vacated.
iii). In the event, the defendant-tenant/petitioner does not vacate the disputed shop and does not hand over its vacant and peaceful possession to the plaintiff-landlady/respondent on or before 31.03.2020, then apart from other consequences as may follow, the defendant-tenant/petitioner shall also pay a sum of Rs. 1,000/- per day for each day of delay after 31.03.2020, in vacating the disputed shop and handing over its vacant and peaceful possession to the plaintiff-landlady/ respondent.
Order Date :- 26.9.2019 vkg/NLY