Further, it is argued by the learned counsel appearing for the tenants that the husband of the landlady alone deposed as an agent having obtained a deed of power of attorney, which shall not be accepted, as held by a Division Bench of this Court in Podelly Chinna Chinnamma v. Bandari Pedda Bhumanna, (DB).
34. The relevant portions, at paragraph Nos. 5 and 15, in the said judgment of the Division Bench are thus:
"Paragraph No.5:-..........................
Thus, on a bare reading of the provisions, a party to the proceedings can appear and apply and act through recognized agent viz., the person holding power of attorney, which authorizes him to make such appearance or application or to act. The expressions used are 'appearance', 'application' or 'act' are quite comprehensive enough to include every step taken in the process of pursuing the case either as plaintiff or defendant. It has thus no restricted applicability nor exclude any particular act specifically. The only requirement for a person to act as recognized agent is to hold valid authority duly conferring all such powers.
Paragraph No. 15:- Therefore, the only requirement for a person to come into the witness box to speak in regard to any facts and circumstances of the case is that he should be competent enough to testify i.e., to speak. The competency as. contemplated is a very wider in its connotation. There is distinctive feature between one who is said to be competent on behalf of the person to speak and another how far and to what extent the person can speak. These two aspects cannot be mixed up to reject a person from entering the witness box. As long as one holds proper authority under a Power of Attorney or otherwise, he is fully competent to come as witness on behalf of the said party. The competency as provided for further gets extended under Section 120 thereof providing that in any civil proceedings the husband or wife of a party to a suit shall be a competent witness. Therefore, it cannot be said that the Power of Attorney holder cannot be said to be incompetent as witness on behalf of the party/ executant. Neither the decisions reported in Ramprasad's case (AIR 1988 Raj. 185) or K. Bharthi's case considered these aspects and as such it has to be held that the aforesaid decision is not correct. It is thus held answering the reference that a Power of Attorney holder is a competent witness on behalf of the party/executant and further that the effect and relevancy of such evidence has to be considered from proper perspective on the facts and circumstances of each case."
35. From a reading of the said judgment, it could be seen that what all stated by the Division Bench of this Court was that the power of attorney cannot be prevented to speak on behalf of the plaintiff. But, basing on the facts and circumstances of the case, subject to the satisfaction of the Court, the Court may arrive at any conclusion.
36. In other words, the Court shall not reject in toto the evidentiary value of the agent who in normai course deposes about the facts, which are in his knowledge and if the information furnished by an agent though not spoken by the principal, is sufficient to establish the case, the same can be accepted by the Court. Merely because the landlady in the present case was not examined, the evidentiary value of the agent, who is no other than the husband of the landlady, cannot simply be brushed aside. Hence, the second contention cannot also be countenanced.
37. Insofar as the third and last contention of the learned counsel appearing on behalf of the tenants that bona fide requirement was not sufficiently proved is concerned, it is mere an assessment of the Court basing on the evidence available on record.
Andhra High Court
Vedpal And Ors. vs Shakuntala @ Aruna on 1 February, 2005
Equivalent citations: 2005 (4) ALD 79, 2005 (3) ALT 352
Bench: D Varma
1. Heard both sides.
2. This Civil Revision Petition is directed against the order and decree, dt. 13-9-2004, passed by the Additional Chief Judge, City Small Causes Court at Hyderabad (for brevity "the lower appellate Court"), reversing the order and decree, dated 27-12-2000, passed by the Additional Rent Controller, Secunderabad (for brevity "the trial Court"), in R.C.No.94 of 1999, insofar as the finding of bona fide requirement is concerned and confirmed the finding insofar as the wilful default is concerned.
3. The petitioners are the tenants and the respondent is the landlady.
4. For the sake of convenience, the petitioners and the respondent will be referred as "the tenants and the landlord" respectively.
5. The landlady filed R.C.No.94 of 1999 seeking eviction of the tenants on the grounds of wilful default and also bona fide requirement.
6. Disagreeing with both the grounds of the landlord, the trial Court dismissed the said R.C.No.94 of 1999, against which an appeal in R.A.No.136 of 2001 had been preferred and the lower appellate Court reversed the said order and decree of the trial Court insofar as the finding of bona fide requirement is concerned and confirmed the finding insofar as the wilful default is concerned and ordered eviction of the tenants from the premises in question.
7. The learned counsel appearing on behalf of the tenants raises mainly two grounds viz., firstly that the first tenant falls within the definition of Sub-section (4) of Section 10 of the Andhra Pradesh Buildings (Lease, Rent and Eviction) Control Act, 1960 (for brevity "the Rent Control Act"), secondly the landlord having initiated the proceedings under the Rent Control Act did not examine herself and examined her husband as an agent with the support of the deed of the power of attorney and thirdly the aspect of bona fide requirement, as accepted by the lower appellate Court, is not established by the landlord.
8. In this context, it is further contended by the learned counsel appearing on behalf of the tenants that the evidence of power of attorney is not sufficient and it has to be presumed against the landlord as postulated under Section 114 of the Indian Evidence Act, 1872.
9. insofar as the first contention of the learned counsel for the tenants is concerned, it is to be seen that subsection (4) (i) of Section 10 of the Rent Control Act is necessary to be extracted for ready reference.
"(4) No order for eviction shall be passed under Sub-section (3)-
(i) against any tenant who is engaged in any employment or class of employment notified by the Government as an essential service for the purposes of this sub-section unless the landlord is himself engaged in any employment or class of employment which has been so notified; or
(ii) ..............................
10. The abovementioned provision specifically envisages an exemption to the general principle under Sub-section (3) of Section 10 of the Rent Control Act that an order under Sub-section (3) shall not be passed against any tenant, who is in employment or class of employment notified by the Government as an essential service. Of course, this principle is not applicable if the landlord also belongs to such class or an employee of essential services.
11. It is brought to the notice of this Court the G.O.Ms.No.882, dated 20th June, 1960, published in AP. Gazette Part I, dated 30th June, 1960, which reads thus:
"In exercise of the powers conferred by Clause (i) of Sub-section (4) of Section 10 of the Andhra Pradesh Buildings (Lease, Rent and Eviction) Control Act, 1960 (Andhra Pradesh Act IV of 1960) and in supersession of Home (General-B) Department notification No.358 the Government of Andhra Pradesh published at page 1310 of Part I of the Andhra Pradesh Gazette, dated the 18th November, 1954, the Governor of Andhra Pradesh hereby notified that employment under State and Union Governments shall be an essential service for the purposes of the sub-section aforesaid."
12. Basing on the said G.O., which is purported to have been issued as contemplated under Clause (i) subsection (4) of Section 10 of the Rent Control Act, it is contended by the learned counsel appearing on behalf of the tenants that a specific embargo is created thereunder and hence the first tenant being involved in the service of Union Government is not liable to be evicted from the premises in question.
13. In this connection, it is to be seen that what all specifically postulated under subsection (4) of Section 10 of the Rent Control Act is that the tenant must be an employee or as belonging to the class of employment as notified by the Government and that such employment must be in an essential service.
14. Further, from perusal of the said G.O., it is clear that a notification has been issued by the Government of Andhra Pradesh notifying that the employment under the State and Union Governments shall be an essential service for the purpose of Sub-section (4) of Section 10 of the Rent Control Act.
15. From the above, what all required basically is an employment and nextly such an employment must be in an essential service.
16. Now, it is imperative for this Court to examine as to whether the first tenant is employee at all as contemplated under subsection (4) of Section 10 of the Rent Control Act read with the said G.O.Ms.No.882, dated 20th June, 1960.
17. In this connection, firstly it is to be noted that there is no employment order at all that was pressed into service in order to prove that the first tenant is an employee of an essential service.
18. It is the specific contention of the learned counsel for the tenants that the first tenant has been engaged as barber by the military authorities on contract basis and to buttress his contention that he is an employee, he placed strong reliance on Ex.R-4 (Certificate issued by the AOC Centre, Secunderabad), which reads thus:
CERTIFICATE It is certified that Sri Ved Pal, S/o. late Jabbu Ram is providing Hair Cutting Services to this Centre since 01 Apr., 98. Previously his father late Jabbu Ram was providing Hair Cutting Services since 1953. As per the Contract Agreement maintained in this office the home address of Sri Ved Pal is as under:-
House No.10-1-542, (Old N0.24/C) T.I.T. Block, East Marredpally, Secunderabad - 500026.
Contractor Sri Ved Pal is staying close by AOC Centre on the above address and his essential services are regular to this centre.
Unit: AOC Centre, Secunderabad-15.
Dated: 12 Oct. 99 (Jeswant Sngh) Lt.
Centre Quatermaster For Offg Commandant
19. From the above, it is clear that the first tenant was providing the services of hair cutting to the persons belonging to AOC Centre since April 1998. It further appears that his services were being extracted on the ground that his father also was providing the same services since 1953. However, it does not disclose as to whether the first tenant was employed at all or not, if employed, the said document must have indicated the scale of pay whether on monthly basis or on any other basis.
20. In other words, the said certificate (Ex.R-4) does not possess any of the known trappings of an order of employment. However, in order to be more careful, I feet it necessary to go into the aspect of the evidence.
21. The relevant portion of the evidence of the first tenant, who examined himself as R.W.1, in his cross-examination, is thus:
"In my appointment order, no monthly salary was mentioned. I have not filed appointment order in the Court. Every year there will be change in the rates. Every year, the Board Members will fix the rates. I do not sign in attendance register. I do not know whether the regular civil employees will sign in the attendance register. I have not entered into any contract agreement with AOC center but I entered into rate agreement. I agree that contents of R-4 are correct."
22. The further evidence of the tenant, in his cross-examination, is thus:
" I am an income tax assessee. My income tax accounts are maintained by Central Defence Account. I do not know my income tax assessment number."
23. In my view, the services rendered by the first tenant as a barber to the persons of AOC Centre might be essential services. But, it is to be seen that such services shall have to be notified. Therefore, what is more important is only such essential services, which are notified by the appropriate Government, are to be treated as essential services and such person involved in such essential services alone is entitled to have the benefit under Sub-section (4) of Section 10 of the Rent Control Act.
24. The learned counsel appearing on behalf of the tenants, of course, filed an application in C.R.P.M.P.No.16542 of 2004 under Order 41 Rule 27 of the Code of Civil Procedure to permit the tenants to file certain other documents as additional evidence.
25. The purpose of the said documents obviously and, as stated by the learned counsel appearing on behalf of the tenants himself, is only in order to show that the first tenant was rendering essential services.
26. For the aforementioned reasons, at the cost of repetition, though the services are recognized as "essential services," such recognition must be by a specific notification issued by the appropriate Government, and most significantly; that such services must be rendered by a person who is a member of State or Central service and that since the first tenant could not prove that he is an employee involved in such essential services, he is not entitled to have the benefit under Sub-section (4) of Section 10 of the Rent Control Act.
27. For the aforementioned reasons, I do not agree with the first contention of the learned counsel appearing on behalf of the tenants and accordingly the same is rejected.
28. Apropos the second contention of the learned counsel appearing on behalf of the tenants is concerned, Section 114 of the Indian Evidence Act is essential to be extracted, for ready reference, which is thus:
"114. Court may presume existence of certain facts. - The Court may presume the existence of any fact which it thinks likely to have happened regard being had to the common course of natural events, human conduct and public and private business, in their relation to the facts of the particular case.
29. But, it is to be seen that what all Section 114 of the Indian Evidence Act says is that "the Court may presume". Again "may presume" is defined under Section 4 of the Evidence Act, which is thus:
"4. "May presume".-- Whenever it is provided by this Act that Court may presume a fact, it may either regard such fact as proved, unless and until it is disproved, or may call for proof of it.
"Shall presume:.- Whenever it is directed by this Act that the Court shall presume a fact, it shall regard such fact as proved, unless and until it is disproved.
"Conclusive proof.-- When one fact is declared by this Act to be conclusive proof of another, the Court shall, on proof of the one fact, regard the other as proved, and shall not allow evidence to be given for the purpose of disproving it."
30. The definition of expression 'may presume' does not indicate that it is imperative for the Court to draw a presumption. On the contrary, the Court has the discretion to draw a presumption in the circumstances enumerated therein.
31. Further, Section 120 of the Indian Evidence Act, which is necessary for ready reference, reads thus:
"120. Parties to civil suit, and their wives or husbands, husband or wife of person under criminal trial. -In all civil proceedings the parties to the suit, and the husband or wife of any party to the suit, shall be competent witnesses. In criminal proceedings against any person, the husband or wife of such person, respectively, shall be a competent witness."
32. The provisions of the abovesaid Section permits the husband to speak on behalf of the wife and in a case like this, the husband can always speak about the factual circumstances in order to establish the case.
33. Further, it is argued by the learned counsel appearing for the tenants that the husband of the landlady alone deposed as an agent having obtained a deed of power of attorney, which shall not be accepted, as held by a Division Bench of this Court in Podelly Chinna Chinnamma v. Bandari Pedda Bhumanna, (DB).
34. The relevant portions, at paragraph Nos. 5 and 15, in the said judgment of the Division Bench are thus:
"Paragraph No.5:-..........................
Thus, on a bare reading of the provisions, a party to the proceedings can appear and apply and act through recognized agent viz., the person holding power of attorney, which authorizes him to make such appearance or application or to act. The expressions used are 'appearance', 'application' or 'act' are quite comprehensive enough to include every step taken in the process of pursuing the case either as plaintiff or defendant. It has thus no restricted applicability nor exclude any particular act specifically. The only requirement for a person to act as recognized agent is to hold valid authority duly conferring all such powers.
Paragraph No. 15:- Therefore, the only requirement for a person to come into the witness box to speak in regard to any facts and circumstances of the case is that he should be competent enough to testify i.e., to speak. The competency as. contemplated is a very wider in its connotation. There is distinctive feature between one who is said to be competent on behalf of the person to speak and another how far and to what extent the person can speak. These two aspects cannot be mixed up to reject a person from entering the witness box. As long as one holds proper authority under a Power of Attorney or otherwise, he is fully competent to come as witness on behalf of the said party. The competency as provided for further gets extended under Section 120 thereof providing that in any civil proceedings the husband or wife of a party to a suit shall be a competent witness. Therefore, it cannot be said that the Power of Attorney holder cannot be said to be incompetent as witness on behalf of the party/ executant. Neither the decisions reported in Ramprasad's case (AIR 1988 Raj. 185) or K. Bharthi's case considered these aspects and as such it has to be held that the aforesaid decision is not correct. It is thus held answering the reference that a Power of Attorney holder is a competent witness on behalf of the party/executant and further that the effect and relevancy of such evidence has to be considered from proper perspective on the facts and circumstances of each case."
35. From a reading of the said judgment, it could be seen that what all stated by the Division Bench of this Court was that the power of attorney cannot be prevented to speak on behalf of the plaintiff. But, basing on the facts and circumstances of the case, subject to the satisfaction of the Court, the Court may arrive at any conclusion.
36. In other words, the Court shall not reject in toto the evidentiary value of the agent who in normai course deposes about the facts, which are in his knowledge and if the information furnished by an agent though not spoken by the principal, is sufficient to establish the case, the same can be accepted by the Court. Merely because the landlady in the present case was not examined, the evidentiary value of the agent, who is no other than the husband of the landlady, cannot simply be brushed aside. Hence, the second contention cannot also be countenanced.
37. Insofar as the third and last contention of the learned counsel appearing on behalf of the tenants that bona fide requirement was not sufficiently proved is concerned, it is mere an assessment of the Court basing on the evidence available on record.
38. It is the case of the landlady that there are four families residing in the building though it is two storied. All the elder members of the four families are married and are leading independent lives in different fields and that their children also had some problem to reach different schools.
39. Further, various other aspects have been taken into account by the lower appellate Court before arriving at a conclusion that the bona fide requirement was sufficiently present and proved by the landlady. Hence, I do not find any justifiable reason to disagree with the finding recorded by the lower appellate Court in the impugned order insofar as the bona fide requirement is concerned.
40. For the foregoing reasons, I do not find any merit in the present Civil Revision Petition warranting interference with the impugned order of the lower appellate Court.
41. The Civil Revision Petition fails and is liable to be dismissed.
42. However, to vacate the premises in question, in my view, some time is desirable to be granted to the tenants.
43. Accordingly, the Civil Revision Petition is dismissed, at the stage of admission. However, there shall be no order as to costs.
44. However, the tenants are directed to vacate the premises in question within four months from to-day i.e., by 31-5-2005, without fail, and hand over possession of the same to the landlady. If the tenants fail to vacate the premises in question, as directed by this Court, the landlady is at liberty to proceed in accordance with law.
45. At this juncture, the learned counsel appearing on behalf of the tenants orally requested this Court to grant leave to the tenants to file an appeal before the apex Court to challenge the order passed in the present Civil Revision Petition.
46. Since no substantial guestion of law is involved, the request of the learned counsel appearing on behalf of the tenants is rejected.
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