JUDGMENT
Kundan Singh, J.
1. This civil revision application has been preferred against the judgment and decree passed by the 4th Extra Assistant Judge, Vadodara passed in Regular Civil Appeal No. 74 of 1998, whereby the judgment and decree dated 11-3-1998 passed by the trial Court in Rent Suit No. 373 of 1996 against the petitioner-tenant for eviction of the suit premises was confirmed.
2. The respondent filed Rent Suit No. 373 of 1996 for recovery of possession of the suit premises u/s 13(1)(L) of the Bombay Rent Act and for getting permanent injunction against the defendant – tenant. It is stated by the plaintiff in the suit that he is the owner of the suit property situated in Narsinhji’s pole, Todawala’s Khancha, in Vadodara. The defendant was a monthly tenant of one room and kitchen on the ground floor of the suit premises. The standard rent of the suit premises was Rs.30/- p.m. Moreover, municipal tax and education cess, water charges and electricity charges of the suit premises were to be borne by the defendant. The defendant was trying to encroach more space in the suit premises for which the defendant has no right. The defendant has acquired another premises bearing Block No. C-48, situated in Vallabhnagar Cooperative Housing Society at Bapod area of Vadodara city and the said premises is suitable and convenient to the defendant for residential purposes. The defendant has purchased the said tenement in the name of his son Bharat Aknath Rane to be saved from the provisions of the Bombay Rent Act. The family of the defendant is a joint family and the defendant has gone to reside with her son. Thus, as per the case of the plaintiff, the defendant has acquired the suitable residential accommodation within the meaning of Section 13(1)(l) of the Bombay Rent Act and hence the defendant has no right to retain the possession of the suit premises and she is liable to be evicted from the suit premises. It is also stated that the defendant is not vacating the suit premises intentionally and the defendant is making illegal demand for money to hand over possession of the suit premises to the plaintiff. The defendant has given threat to damage the suit premises. The defendant wants to transfer possession of the suit premises by subletting to any third person for which the defendant has no right. For that purpose the defendant is required to be restrained from doing such acts by granting permanent injunction against the defendant.
3. The defendant was duly served with the summons and appeared before the trial court through her advocate. Sufficient time was granted to her for filing her written statement but she has not filed her written statement and her right for filing written statement was also closed. The trial Court framed following four issues.
(i) Whether the plaintiff proves that she has rented the suit premises consisting of one room and kitchen to the defendant ?
(ii) Whether the plaintiff proves that defendant has acquired suitable residential accommodation as alleged ?
(iii) Whether the plaintiff is entitled to get permanent injunction as prayed ?
(iv) Whether the plaintiff is entitled to get vacant and peaceful possession of the suit premises ?
All the aforesaid four issues have been decided by the trial in the affirmative. After considering the material on record and arguments advanced by the learned counsel for the parties, the suit of the plaintiff was decreed vide judgment and decree dated 11-3-1998. Being aggrieved and dissatisfied with the judgment and decree dated 11-3-1998 of the trial Court, the defendant filed Regular Appeal No. 74 of 1998 before the District Court, Vadodara and the learned 4th Extra Assistant Judge, Vadodara dismissed the said appeal vide his judgment and order dated 15-10-1998 and confirmed the judgment and decree dated 11-3-1998 passed by the trial Court.
4. It is stated in the memo of Regular Civil Appeal No. 74 of 1998 filed by the defendant before the District Court, Vadodara that the Bailiff of the Court came to the appellant – defendant and asked to vacate the suit premises and without listening the appellant, the the goods of the appellant were thrown away and hand over vacant possession of the suit premises to the respondent-plaintiff. Thereafter, the appellant approached the Small Causes Court, Vadodara on the same day and got inspection of the entire record. Thereafter, the petitioner – defendant had never been served upon with any summons or notice of the Regular Civil Suit No. 373 of 1996 at any point of time and the defendant had never engaged any advocate more particularly Mr. Atul J. Vyas and has never signed the Vakalatnama on behalf of the defendant-tenant. Even the appellant on that day, does not know any such advocate namely Mr. Atul J. Vyas and has never put any signature on any Vakalatnama. The signature on the summons and Vakalatnama were absolutely forged and fabricated. As such, the appellant was not aware of the present suit proceedings at all and the appellant came to know about the fact of rent suit only when she was evicted from the suit premises. But from the comparison of the signatures of the appellant in the appeal memo and the previous suit records, it is clear that the signature of the appellant was forged and without affording any opportunity of being heard, the appellant has been evicted from the suit premises and considering the facts and circumstances of the case, the summons were issued to the appellant-tenant and the summons appeared to have been served and one advocate Mr. Atul J. Vyas, appeared in the Court in the suit proceedings on behalf of the petitioner – defendant. But no written statement was filed by him and several adjournments were granted by the Court therefor.
5. The respondent – plaintiff examined two witness but there was no cross-examination by the advocate appearing on behalf of the petitioner and no witness has been examined on behalf of the petitioner-defendant in the suit proceedings. Therefore, the decree for eviction was passed and the application for execution of the decree was moved. After execution of the decree on a particular day the petitioner – defendant was evicted from the rented suit premises. As soon as the suit premises was evicted, she got inspected the records and proceedings of the case and then she came to know that no service of summons was effected and service of the summons was considered to be satisfactory and Mr. Atul J. Vyas was engaged on behalf of the defendant-tenant. In this respect, learned Appellate Judge has not framed any issue nor it has been mentioned any where in the judgment passed by the Lower Appellate Court in Regular Civil Appeal No. 74 of 1998 that any inquiry was made in this respect. Considering the fact that no inquiry was made in this respect either by the trial Court or by the Appellate Court. Upon asking the the learned counsel for parties concerned, Mr. N.K. Majmudar learned counsel appearing for the respondent requested this Court to grant some time to inform this Court as to whether any inquiry was conducted by the trial Court or by the Appellate court and if that is so, and to place outcome of the criminal complaint filed by the defendant tenant this Court vide order dated 29-8-2003 directed the matter to be placed on Board on 3-9-2003. Mr. N.K. Majmumdar learned counsel for the respondent informed the Court that the petitioner moved an application exh. 13 stating therein about forgery committed by someone regarding her signature on the summons as well as Vakalatnama of Mr. Atul J. Vyas along with the application exh. 5 for interim relief, against the respondent. It appears that both the said applications were decided by the lower appellate Court on 16-7-1998 holding that the summons issued by the Court against the defendant were served upon the petitioner and she engaged some lawyer Mr. Atul J. Vyas on her behalf and several adjournments were granted to him to file written statement on behalf of the defendant-tenant but no written statement was filed on her behalf. Hence the applications exh. 13 and 5 were rejected vide order dated 16-7-1998 against which the petitioner – defendant preferred an Appeal from Order being Appeal From Order No. 357 of 1998 before this Court and that appeal was decided by this Court on 18-7-1998 with consensus of the learned counsel for the parties with a direction to the lower Appellate Court for expeditious hearing and to decide the appeal within stipulated period. This Court granted interim relief to the effect that the respondent will not dispose of or alienate or transfer the suit property or to hand over the possession to any other person, during pendency of the appeal before the lower appellate Court. This matter is regarding the fact as to whether the appellant tenant had come to know about the suit proceedings only after 30-6-1998 when she was dispossessed from the possession of the suit premises and vacant and peaceful possession of the suit premises was handed over to the respondent by the Bailiff of the trial Court and the issue regarding forgery of the alleged signature on the summons as well as on Vakalatnama of advocate Mr. Atul J. Vyas and purses submitted on her behalf by the said advocate has been concluded and that fact cannot be reopened again.
6. I have heard the learned counsel for the parties at length and perused the relevant material on record.
7. Contention of the learned counsel for the respondent is that the defendant has already been served with the summons and Mr. Atul J. Vyas, advocate has already submitted his Vakalatnama duly signed by her at exh. 11 on behalf of the respondent and he has moved applications for adjourning the matter to file written statement on behalf of the defendant. Though sufficient time and opportunity was afforded to the defendant to file written statement, she has not filed any written statement.
8. It is contended by the learned counsel for the petitioner that advocate Mr. Atul J. Vyas was not meeting the defendant since many adjournments and hence the trial Court ought to have issued notice to the defendant. The learned appellate Judge has not accepted the submissions made by the learned advocate for the defendant in this regard as there was nothing on record to show that learned advocate Mr. Atul J. Vyas has filed any pursis on record that he has no instruction from the defendant. Hence, no question arises for the trial Court to issue notice again to the defendant.
9. In the present case, it is not in dispute that the petitioner-defendant was a tenant of the suit premises owned by the respondent-plaintiff and the petitioner was residing in the suit premises along with her other family members. Son of the petitioner purchased another suitable bungalow. According to the respondent, the petitioner went to reside in that bungalow with her son. Therefore, under Section 13(1)(l) of the Bombay Rents, Hotel and Lodging House Rates Control Act, 1947 (hereinafter referred to as the “Bombay Rent Act”) for the ground of acquisition of a suitable residence it has to be seen whether the present case would be covered u/s 13(1)(l) of the Bombay Rent Act on the ground of acquisition a suitable residence by the son of the defendant. As per the contention of the learned counsel for the respondent, the petitioner has acquired vacant possession of the suitable residence and hence the respondent is entitled to recover the possession of the suit premises if the petitioner has built or acquired the suitable residence or suitable residence has been allotted to the petitioner as per the provisions of Section 13(1)(l) of the Bombay Rent Act irrespective of ownership of other premises.
10. Learned counsel for the petitioner contended that the suit is not maintainable under the law as the petitioner being a lady has not acquired any suitable residence and she has legal right to reside in the suit premises. In support of his arguments, he has relied on the decision of the Supreme Court in the case of Anandi D. Jadhav (dead) by L.R’s V. Nirmala Ramchandra Kore and others, reported in AIR 2000 SUPREME COURT 1386, wherein the Supreme Court has considered the definition of the tenant. The definition of ‘tenant’ is too exhaustive to include any member of the family residing with him. Such members of his family who were residing with the tenant at the time of his death, or in their absence any heir of the deceased, tenant as may be decided in default of agreement by the Court, would become tenant on his death. In the case before the Supreme Court, the tenant first respondent and her sons, respondents 2 and 3 were let into possession of the suit premises about 30 years before the institution of the suit but the first respondent alone was the tenant and respondents no.2 and 3 were there as members of her family, they were, therefore, not tenants of the suit premises. The observation of the Supreme Court is that they were, therefore, not tenant of the suit premises. The concurrent findings of the Courts below are that the respondents no.2 and 3 built up the house for which the respondent did not contribute any money, she did not shift her residence to the said house though she was visiting that house off and on. As the first respondent tenant did not built any house and respondents no. 2 and 3 are not the tenants, the first of three alternatives, referred to in S.13(1) is not available to the landlord to seek eviction of the first respondent-tenant. It was observed by the Supreme Court that the first respondent being an old mother undoubtedly has right to be maintained by the respondents no. 2 and 3. But that does not mean that she is entitled to live along with her son’s family. The expression ‘acquired vacant possession’ means acquisition of vacant possession of a suitable accommodation in which one has a right to reside. It must be a legally enforceable right. The first respondent does not have any such legal right to reside in the house of respondents no.2 and 3. Though, it cannot be disputed that respondents no. 2 and 3 had for a period of 30 years before building their own house lived with the first respondent as her sons and morally they are obliged to take care of the aged mother by accommodating her in their house, yet in law it cannot enlarge that obligation to legal duty to provide her residence in the house along with their family, cannot be enlarged.
11. He has further relied on the decision of full bench of this Court in the case of Heirs of Jayantilal Kanjibhai V. Rameshchandra Uttamram, reported in 2000 (3) G.L.H. 76 = 2000 (3) G.L.R. 2110, wherein it has been considered as under :
“if a wife or a husband acquires a property and the other spouse if he/she is the tenant, has a legal right by virtue of such acquisition and stay there, then only can such acquisition or allotment of premises would attract the provisions of S.13(1)(l) of the Act. There is no law, according to which, husband and wife could be deemed to be one person. If the tenant has no legal right in the property acquired by the other spouse, then his need for old tenanted residence does not go, nor does he lose his right in tenanted premises. In case of acquisition on behalf of the tenant, it must be established that the tenant has domain over the acquired residence. As observed by the Supreme Court in B.R. Mehta (supra) case. The premises in question which the wife of the opponent has acquired, is indisputably not matrimonial home. The opponent, therefore, would not have any statutory or legal right against his wife to use and enjoy the acquired premises. The trial Court has in terms held that “the wife of the opponent is the exclusive owner of Bungalow No. 7 situated in Ravindra Park Co.Op. Housing Society and the opponent has no right, title or interest in that bungalow.” This finding has been upheld by the District Court, which is the final court so far as facts are concerned. It cannot be said that the opponent acquired suitable alternative accommodation after coming into force of the Act.”
12. Learned counsel for the respondent has submitted that the above decision of full bench of this Court in the case of Heirs of Jayantilal Kanjibhai (supra) has not been overruled but the same is not applicable and distinguishing the facts of the present case and facts of those two cases, the above decisions of the Supreme Court as well as full bench of this Court. The alternative accommodation was purchased or built by the sons of the tenant lady who has not contributed in the alternative accommodation and she had not vacated the tenanted premises and she had even not gone to reside with her sons in newly constructed or purchased bungalow.
13. In the present case, the defendant herself has purchased another bungalow in the name of her son and she has shifted to reside in that bungalow with her son. Hence, if the rented property has already been left by the tenant then the ratio laid down by the Supreme Court in the above decision in the case of Anandi D. Jadhav (supra) is not applicable in the present case. No doubt, the tenant had right in the suit premises but after she had purchased another residence in the name of the son she has lost her legal right to live in the tenanted premises as she has shifted in that another newly purchased bungalow to reside with her son. As such, there is no legal right of the defendant to retain the rented premises in the present case. Secondly, that property has been acquired by the lady tenant herself in the name of her son hence she has domain over the newly purchased flat. In the above case before the Supreme Court, the property which was purchased by the son of the tenant, the lady tenant had not contributed anything in purchase of another property by her sons. When this fact is not denied, it will be deemed as admitted fact in the present case that the defendant tenant has purchased the house in the name of her son and she has left the rented premises to live with her son in the newly purchased accommodation acquired by her.
14. He in support of his arguments, has relied on the decision of the Bombay Court in the case of Shriram Surajmal V. Shriram Jhunjhunwala, reported in AIR 1936 Bombay 285, wherein it has been held as under :
“Under O. 8 R.5, every allegation of fact in the plaint must be taken as admitted unless denied or stated to be not admitted in the pleading of the defendant, there can be no denial of non-admission on his part and he is bound by all the allegations in the plaint.”
14.1 If the facts or averments of the plaint are not denied by the defendant in pleadings they will be deemed to have admitted by the defendant and the plaintiff is not expected predenial hence he is not to produce any evidence to prove the averments of the plaint. He has also relied on the decision of the Supreme Court in the case of State of Gujarat Vs. Ranji Mandir Trust, Baroda and others, reported in AIR 1979 Gujarat 113, wherein it is held as under :
“There is no occasion for the plaintiffs to lead evidence in order to show by producing oral or documentary evidence or evidence pertaining to the relevant circumstances or mode of dealing with them that their right had been expressly or implied recognised by the new sovereign. In absence of such a plea the plaintiffs are not obliged to anticipate the plea and to lead evidence on the point.”
15. In the present case, in absence of any plea regarding the fact that no issue was raised and that even the defendant stated that her pleader did not realise that such a plea could be raised and did not raise the plea and even did not address any argument in the trial Court and such plea cannot be permitted to raise it for the first time in the course of appeal. This must be so, for serious prejudice would be caused to the other side and it cannot be done without creating a situation where miscarriage of justice takes place not for the fault of the plaintiffs but on account of the fault of the defendant in not raising the plea and in not even arguing the point in the trial Court.
15.1. He has relied on the decision of this Court in the case of Chhanabhai Ranchhod and others V. State of Gujarat and others, reported in 1983 G.L.H. 34, wherein it has been held as under :
“Every allegation of fact in the plaint, if not denied specifically or by necessary implication, or stated to be not admitted in the pleading of the defendant, shall be taken to be admitted except as against a person under disability.”
16. Learned counsel for the respondent contended that the petitioner was residing with her family members. If the suitable residence is acquired by any other member of that family, will be deemed to be acquisition of suitable residence under Section 13(1)(l) of the Bombay Rent Act. In support of his arguments, he has relied on the following decisions.
16.1 The decision of this court in the case of Daulatram Khitumal Udhrani V. Rajendra Jayantilal Tailor, reported in 1998 (1) All India Rent Control Journal, 361, wherein it is held as under :
“The evidence of the tenant himself is sufficient to establish that he and his sons have acquired suitable residential accommodation and he and his sons are carrying either Ice Candy or Automobile business on the ground floor while he is residing with his son Pappy in the house occupied by him in the first and second floors. It is difficult for the tenant to run away from this admission which he has made in his cross-examination and the doctrine of waiver of right cannot apply to the statutory prohibition. When Statute provide that the act of acquiring suitable residential accommodation or alternative accommodations by the tenant would entitle the landlord to a decree of possession on the ground of acquisition of suitable residential accommodation by the tenant and the tenant has acquired number of suitable residential accommodations to permit the doctrine of waiver to operate would amount to frustrate the object of the statute.
16.2. The decision of this Court in the case of Srinivas Vaman Karve And Another V. Chandanben Jayantilal Dalal, reported in 1973 G.L.R. 257, wherein this Court has held as under :-
“Once the court is satisfied that any of the events mentioned in clauses (a) to (l) had happened, the embargo imposed by sec.12 is lifted and the landlord becomes entitled to recover possession of the rented premises.
The tenant who acquires such vacant possession of a suitable residence, has to hand over possession of the rented premises to be to the land lord so that others who need the rented premises from which he is sought to be evicted may get them.”
16.3 The decision of this Court in the case of Savitaben Ramanlal Shah (since deceased) through her heirs & Lrs. V. Landge Bal Krishna Mahadev, reported in 1995 (1) G.L.R. 555, wherein it is observed as under :
“The petitioners – original landlord had sought eviction on the ground of alternative suitable accommodation under Section 13(1)(l). Both the Courts have found against the petitioner-landlord on the ground that the acquisition of alternative suitable accommodation is by the wife and not by the tenant-husband. There is no difficulty about this finding of fact.”
16.4 The decision of Delhi High Court in the case of V.K. Malhotra and Another V. Smt. Ranjit Kaur, reported in 1985 (1) All India Rent Control Journal, 250, wherein it is held “Even if the wife of the tenant has built/acquired of vacant possession of premises the tenant is liable to be evicted.
16.5 The decision of Bombay High Court in the case of Chimanlal Sakalchand Shah V. Onyanoba Sodha Kodre and Another, reported in 1986 (2) All India Rent Control Journal, 499, wherein it has been held as under :
“The learned Advocate for the petitioner has also invited my attention to the judgment of this Court in Shankar Nana Waychal and other V. Mohan Ganesh Date and others. this is a judgment delivered by my learned brother R.A. Jahagirdar, J. This case was cited by the learned Advocate for the petitioner in support of contention that the acquisition of a suitable residence such as be son or other relative of the tenant cannot be ground of eviction. Although this authority does lay down that the acquisition by a person who is related to the tenant of a suitable residence is not a ground for eviction, however I do not think that this judgment is an authority for the proposition that the real nature of the transaction cannot be ascertained by the Court in such matters. If in a given case, if the Courts find, as a matter of fact, that the acquisition of suitable alternate accommodation is shown in the name of some relative but in fact the tenant himself is an instrument in participating in transaction and actively acquired interest by such transaction, it cannot be said that he has not acquired a suitable alternate accommodation. The observations of this judgment will have to be read in the context and subject to the qualification that the authority of the Court to find the nature of the transaction is not curtailed. It must be clearly found that the tenant has no connection with the transaction by which the suitable alternative accommodation is acquired. Merely saying that the tenant has no connection with the transaction is not adequate to disclaim title to the new acquisition so easily. I, therefore, do not find that the ratio of the decision is attractive in the present case.”
16.6 Decision of this Court in the case of Hasmukhlal Raichand Shah V. Arvindbhai Mohanlal Kapadia, reported in 1988 (2) G.L.R. 1442, wherein it has been held as under :
“In my view, with regard to the interpretation of Sec. 13(1)(l) also, the same would be the position. If there is evidence on record that tenant and his family members are living together, one of them has acquired suitable residential accommodation and if there is no evidence to the effect that they had not been looking upon themselves as one unit or when the members of the family live together, mess together then, acquisition of suitable residential accommodation by one of them would be considered to be acquisition of suitable residential accommodation be considered to be the acquisition of suitable residential accommodation by the tenant. The position might be different in some cases. In the cases where the husband and wife are staying separately because of the dispute or for some other reason or where the son is staying in other premises because of the dispute or because after marriage he might consider that he should reside separately and acquires other suitable residential accommodation, then in those cases it can be said that the tenant has not acquired suitable residential accommodation. But while considering this question one cannot miss sight of the normal conditions obtaining in the India Society where husband and wife with their children reside together as one unit and mess together.”
This Court in the above cases has observed that in the case of B.R. Mehta the Supreme Court has not overruled the decision in the case of Prem Chand as contended by the learned Advocate for the petitioner. This would be clear from the following observation of the Court : The said decision rested on the facts of that case. Therein that case, this Court found that the respondent’s wife had purchased a flat in Saket and further found that the flat was available to the respondent. In those circumstances it was held that there was acquisition of vacant possession of a residence and as such Sec. 14(1)(b) of the Act would be attracted. It cannot however be laid down as a general proposition of law that acquisition of flat by the wife in all circumstances would amount to acquisition of flat by the tenant.”
17. So far as applicability of the above decision of the Full Bench of this Court is concerned, it is pointed out in the said decision that the learned Single Judge referred to the Civil Revision Application to the larger Bench on the ground that the law laid down by the Division Bench of this court in Shivlal Nathuram Vaishanv to the effect that the cause of action must exist at the time of notice and also at the time of filing of the suit, requires consideration in view of the judgment of the Supreme Court in the case of Dewan Chand Bhalla V. Dr. Ashok Kumar Bhoil (1994 (5) SCC 445) and Ramanlal Becharbhai Tailor V. Champaklal Nanalal Modi (1998 (2) GLH (UJ) 9). Hence, the learned Single Judge had referred Civil Revision Application for consideration of the Larger Bench. As such, according to the learned counsel for the respondent, the matter was referred to the Larger Bench was in respect of the cause of action regarding the provisions of Section 13(1)(l) of the Bombay Rent Act. The matter was not actually referred to the Larger Bench on the question whether any of the members of the tenant if acquires suitable residential accommodation would amount to compliance of the provisions of Section 13(1)(l) of the Bombay Rent Act or not and it was found that the ratio of laid down by the Supreme Court in the case of Prem Chand V. Sher Singh, reported in 1981 DRJ 287 (SC) was not overruled by the Supreme Court in the case of B.R. Mehta V. Atma Devi & Ors. (AIR 1987 SC 2220.
In the case of Prem Chand V. Sher Singh, reported in 1981 DRJ 287 (SC), the Supreme Court held as under :
“Having considered the averments of the parties on the point at issue, it was held in that case that the respondent had through his wife acquired vacant possession of the residence in Delhi and in that view of the matter, it was held “not entitled to retain old tenanted premises.”
The Supreme Court in the case of B.R. Mehta V. Atma Devi and Others, reported in AIR 1987 SC 2220, has held as under :
“In our opinion, from the fact that the wife of the tenant was allotted a temporary Government accommodation, it cannot be said that there was admission by virtue of which the tenant could lose his tenancy that the wife has acquired a house which is available to the husband over which the husband has domain which could be a substitute to the tenanted premises. In that view of the mater we are of the opinion that there was no admission.”
The ratio of the Supreme Court in the aforesaid case is that the tenant – husband cannot lose his tenancy because of wife acquiring possession of a flat or allotment of a flat because of her official duties over which the husband has no right or domain or occupation. If a wife or a husband acquires a property and the other spouse if he/she is the tenant, has a legal right by virtue of such acquisition to stay there, then only can such acquisition or allotment of premises would disentitle or attract the provisions of cl. (h) of S.14(1), otherwise the whole purpose would be defeated. In other words, if for all practical and real sense the tenant, acquires, builds or is allotted another residence then his need for the old tenanted residence goes and the tenant loses his right to retain his tenanted premises.
18. I have considered the rival contentions made by the learned counsel for the parties in respect of acquisition of suitable residential accommodation by any member of the tenant’s family. It can be decided only on the basis of the facts and circumstance of the case, where any member of the tenant’s family or spouse of the tenant acquires any suitable residential accommodation by way of the official duty such as wife of the tenant is allotted a residential quarter/bungalow in her official capacity and her service is transferable and she is transferred to other place, she will have another accommodation, the husband living with his wife at the earlier accommodation cannot claim to retain that residential accommodation as a matter of right. Such residential accommodation allotted or acquired by the wife, cannot be treated as suitable residential accommodation to the husband under Section 13(1)(l) of the Bombay Rent Act. In the same manner wife and husband are residing together in a rented premises, if due to strained relations between them, the wife purchases a house for her residence and starts residing therein, the husband cannot be said to have domain and legal right to live with his wife in the house purchased by his wife and cannot be deemed to have acquired suitable residential accommodation u/s 13(1)(l) of the Bombay Rent Act But as held in the case of Prem Chand V. Sher Singh (1981 DRJ 287 SC), the wife acquired the flat for residential purpose and was living with her husband in tenanted premises. The notice was given and the suit was filed. The wife had vacant possession of that acquired flat. But later on she had rented the new acquired flat to some other persons. The Supreme Court held that when the possession was available at the time of the notice as well as at the time of filing of the suit, the Court has to consider two ingredients of the suitable accommodation only at the time when the notice was given and the suit was filed. Subsequently the newly acquired premises is rented to any other person, the tenant will be deemed to have acquired suitable residential accommodation and the owner/landlord would be entitled for recovery of vacant possession of such rented premises given to the husband with whom the wife was living. It is also observed in that case that if the tenant has domain over the property acquired by any other member of the family then the residential property can be treated as suitable residential accommodation u/s 13(1)(l) of the Bombay Rent Act as laid down by the Supreme Court in the aforesaid case that the husband cannot claim right of tenancy and retain the property as a matter of right. The property was allotted to his wife in her official capacity. As such, for examining the ingredients of the suitable accommodation domain has to be seen whether the party had any domain over the property acquired by any member of the family. In the present case, the plaint allegations are not in dispute. In the case of Anandi D. Jadhav (supra), the tenant being an old lady has right to be maintained by her sons – respondents no. 2 and 3. But that does not mean that she is entitled to live along with her sons’ family. The expression “acquired vacant possession”, in the context, means acquisition of vacant possession of a suitable accommodation in which one has a right to reside. It must be a legally enforceable right. The first respondent does not have any such legal right to reside in the house of the respondents no.2 and 3. Though, it cannot be disputed that the respondents no. 2 and 3 had for a period of 30 years before building their own house lived with the first respondent as her sons and morally they are obliged to take care of the aged mother by accommodating her in their house, yet in law the Court cannot enlarge that obligation to legal duty to provide her residence in the house along with their family. In the present case, the assertions made by the respondent-landlord are not in dispute that the defendant landlady has acquired Block No.C-48 in Vallabhnagar Hosing Society at Bapod Area, in Vadodara city, in the name of her son. Meaning thereby she has paid sale consideration and the defendant-tenant is owner of that flat. As it was purchased by the petitioner-defendant in the name of her son and she had herself shifted to the newly purchased flat and she is residing with her son there. It means that she has domain over newly purchased flat or house by her in the name of her son and has given up her legal right to live in the suit premises by shifting in the newly purchased accommodation with her son. No doubt, as per the ratio of the Supreme Court in the aforesaid cases, the tenant had legal right to occupy the rented premises but in the present case the tenant lady has already acquired another property in the name of her son as that property has been acquired by the tenant herself. The petitioner – tenant will be deemed to have domain over that property and she would be deemed to be legally entitled to occupy that flat or newly constructed premises. As such, the petitioner – defendant tenant has no legal right to occupy the rented premises. When she has acquired another premises in the name of her son and she has shifted to that newly residential accommodation acquired by her in the name of her sons giving up the legal right to occupy the rented premises. There is no evidence on record to show that the petitioner-tenant has not acquired suitable residential property and she has not contributed any money for purchase of that new residential premises and she has no domain over the newly acquired residential accommodation. Since, newly residential accommodation has been acquired by the petitioner-tenant herself, then it would always be deemed that the petitioner-tenant has domain over the newly acquired residential accommodation by shifting in the acquired property and living with her son there she will be deemed to have given up her right to occupy the rented premises. In the present case, domain over the newly acquired residential property is one of the ingredients of acquisition of the property by the petitioner-tenant. Therefore, it cannot be said on the basis of the evidence on record that the petitioner-tenant had no domain over the newly residential accommodation acquired by herself in the name of her son, where she has shifted and she is residing in that newly acquired residential accommodation with her son. As such, the ratio of the above referred decision of the Supreme Court in the case of Anandi D. Jadhav is distinguishable and not applicable in the facts of present case and the landlord cannot be deprived of entitlement of vacant possession of the rented suit property on the ground that the petitioner-tenant was mother of the son and newly residential accommodation has been acquired by her in the name of her son. Even the suit instituted by the respondent-plaintiff has been decided ex-parte against the petitioner in the trial Court. The petitioner could have produced evidence including the pleadings by way of filing the written statement and had it been so the evidence could be perused for the purpose of coming to a just and proper decision. Nothing has been produced by the petitioner before the trial Court or before the appellate Court and even before this Court. No material has been produced or shown before this Court to show that the property allegedly was actually not purchased by her but it was purchased by her son and she is not residing in the newly purchased property and residing in the suit premises. The material which could have been produced even before this Court in Appeal From Order filed in this Court by the petitioner or even in this revision application in order to reach to a proper and just decision, could have been seen and considered but no material or evidence either before the trial court or before lower appellate court or even before this Court has been produced. In absence of any evidence produced by the petitioner, this Court in its revisional jurisdiction u/s 29(2) of the Bombay Rent Act, cannot go beyond the material produced by the respondent-plaintiff that the property was purchased by the petitioner-tenant in the name of her son and she herself has shifted to the newly acquired suitable residential accommodation and she is residing there with her son.
19. Learned counsel for the petitioner contended that in the present case, the suit has been filed by the person holding the power of attorney. His evidence is not admissible under the provisions of the Civil Procedure Code. In support of his arguments, he has relied on the decision of the Jaipur Bench of Rajasthan High Court in the case of Ram Prasad V. Hari Narain and others reported in AIR 1998 Raj. 185, wherein it has been held as under :
“I am of the considered view that word “acts” used in Rule 2 of Order 3 Code of Civil Procedure does not include the act of power of attorney holder to appear as a witness on behalf of a party. Power of attorney holder of a party can appear only as a witness in his personal capacity and whatever he has knowledge about the case, he can states on oath but he cannot appear as a witness on behalf of the party in the capacity of that party.”
It has also been considered in the above decision of Jaipur Bench that a General Power of Attorney Holder can appear, plead and act on behalf of the party, but he cannot become a witness on behalf of the party. He can only appear in his own capacity. No one can delegate the power to appear in the witness box on behalf of himself.
20. Mr. Majmudar learned counsel for respondent submitted that the deposition of a person holding power of attorney is not barred in any statutory provisions of law and there is no jurisdiction with the Court to say that the evidence of such person shall not be read at all and that the plaintiff must appear in the case in her support. The functions of power attorney holder are prescribed under the provisions of Order 3 Rule 2 (a) of the Civil Procedure Code, which read as under:
“Recognised agents – The recognized agents of parties by whom such appearances, applications and acts may be made or done are :-
(a) persons holding powers-of-attorney, authorizing them to make and do such appearance, applications and acts on behalf of such parties.”
The learned counsel for the respondent also referred the relevant provisions of the Power of Attorney Holder Act, 1982 Section 1-A and Section 2 of the same Act.
Section-1-A:
“In this Act “Power of Attorney” includes any instrument empowering a specified person to act for and in the name of the person executing it”
Section-2:
“Execution under power of Attorney : The donee of power of attorney may, if he thinks fit, execute or do any instrument or thing in and with his own name and signature and own seal, where sealing is required by the authority of the donor of the power, and every instrument and thing so executed and done, shall be as effectual in law as if it had been executed or done by the donee of the power in the name, and with the signature and seal, of the donor thereof.”
He also referred to provisions of Sec.118 of the Indian Evidence Act which reads as under :
“Section 118 : Who may testify : All persons shall be competent to testify unless the Court considers that they are prevented from understadning the questions put up to them, or from giving rational answers to those questions, by tender years, extreme old age, disease, whether of body or mind, or any other cause of the same kind.
Explanation : A lunatic is not competent to testify, unless he is prevented by his lunacy from understanding the questions put to him and giving rational answer to them”.
21. In support of his submissions, he placed reliance on the decision of Jaipur Bench of the Rajasthan High Court in the case of Kailash Devi V. Matadeen Agrawal and others, reported in AIR 2001 Rajasthan 306, wherein the earlier decision in the case of Ram Prasad (Supra) and the decisions of the Bombay High Court, Gujarat High Court and of several other High Courts have been considered and relevant portion is extracted as under : “In view of the abovesaid decisions, it is settled law that “Power of attorney is a competent witness and is entitled to appear as such. His statements in the Court cannot be ignored or it cannot be said that the statement of such a witness shall not be read in evidence only because of the reason that he had appeared as power of attorney and in case the parties to suit i.e. plaintiff or defendant do not choose to appear as a witness in witness box, it cannot be said that the evidence of the power of attorney who had appeared in the capacity as holder of power of attorney is not to be read at all. His evidence is to be evaluated as per his deposition before the Court and in case the court finds that witness/evidence of such power of attorney does not repose confidence, the Court is at liberty to evaluate the same. There is no jurisdiction with the Court to say that the evidence of such person shall not be read at all and that the plaintiff must appear in the case in her support.
21.1 He further relied on the decision of Karnataka High Court in the case of Smt. Gangavva V. Arjunsa, reported in AIR 2001 Karnataka 231, wherein it has been held as under :
“There is no express bar made in the provisions of C.P.C. to debar the power of attorney to be examined as a witness on behalf of the parties to the proceedings.
As a rule, firstly the party to the proceedings has to examine himself. If for any valid reason it is not possible for the party to examine himself, with the permission of the Court a witness on behalf of such party could be examined and out of term the party can examine himself, further. It is also not necessary in law that always the party to the proceedings should examine himself. the requirement of law insists only that the party who puts forth his case should prove the material facts set up. A party without examining himself can as well establish his case if possible by examining the witnesses who are competent to testify. However, in cases where there is onus placed on the party to discharge and if the facts required to be deposed are necessarily to be testified by the party in person, in such situation, however, such a party runs the risk of facing adverse inference for non-examination. Otherwise, it is also open for the party to give evidence through the power of attorney and such evidence would be a valid substituted evidence of the plaintiff.”
22. I have considered the rival contentions of the learned counsel for the parties as well as gone through the decisions of various High Courts relied upon by the learned counsel for the parties in support of their respective arguments. Karnataka High Court has taken different view than the view taken by the Rajasthan High Court in the case of Ram Prasad V. Hari Narain and others reported in AIR 1998 Rajasthan 185, whereas the Rajasthan High Court in the case of Kailash Devi Vs. Mata Agrawal and others (AIR 2001 Rajathan 306) has also considered the decision of Rajasthan High Court in the case of Ram Prasad (supra) and the decision of the Bombay High Court and other decisions of various High Courts and came to the conclusion that “Power of attorney is a competent witness and is entitled to appear as such. His statements in the Court cannot be ignored or it cannot be said that the statement of such a witness shall not be read in evidence only because of the reason that he had appeared as power of attorney and the parties to suit i.e. plaintiff or defendant do not choose to appear as a witness in witness box. His evidence is to be evaluated as per his deposition before the Court and in case the court finds that evidence of such power of attorney does not repose confidence. There is no jurisdiction with the Court to say that the evidence of such person shall not be read at all and that the plaintiff must appear in the case in her support. As such, I do not find any substance in the contention of the learned counsel for the petitioner.
23. Learned counsel for the respondent contended that no plea was raised by the petitioner either before the trial Court or before the lower appellate Court that acquisition of the suitable residential accommodation by the son and not by the tenant-petitioner mother, can not be permitted to be raised in the revisional jurisdiction. If the allegations of the plaint are not denied that should be treated as admitted. It was also contended that the scope of revisional jurisdiction u/s 29(2) of the Bombay Rent Act is limited one and that revisional power cannot be exercised by this Court when the courts below have recorded concurrent findings and those concurrent findings cannot be reversed by this Court in revisional jurisdiction unless those findings are perverse or miscarriage of justice has occurred by applying wrong law or misconception of law. Reappreciation of the evidence is not permissible under the revisional jurisdiction. In support of his contentions, he has relied on the decision of the Supreme Court in the case of Hari Shankar and others V. Rao Girdhari Lal Chowdhury, reported in AIR 1963 Supreme Court 698, wherein it has been held as under :
“The phrase “according to law” in S. 35 of the Delhi and Ajmer Rent Control Act Act refers to the decision as a whole, and it not to be equated to errors of law or of fact simpliciter. It refers to the overall decision which must be according to law which it would not be, if there is miscarriage of justice due to a mistake of law. Sec. 35 of the Rent Act is thus framed to confer larger powers than the power to correct error or jurisdiction to which S. 115 of C.P.C. is limited. But the section – in spite of its apparent width of language where it confers a power on the High Court to pass such order as the High Court might think it fit, – is controlled by the opening words, where it says that the High Court may send for the record of the case to satisfy itself that the decision is “according to law”. It stands to reason that if it was considered necessary that there should be a rehearing, a right of appeal would be a more appropriate remedy, but the Act says that there is to be no further appeal.
xxx xxx xxx xxx xxx
Under S. 35 High Court cannot interfere with a plain finding of fact arrived at by the Court below. It cannot re-assess the value of evidence and substitute its own conclusions of fact in place of those reached by the court below.”
23.1 He further relied on the decision of the Supreme Court in the case of Mudigonda Chandra Mouli Sastry V. Bhimanepalli Bikshalu and others, reported in AIR 1999 SC 3095, wherein it has been observed as follows: “Under such circumstances, it was also not open to the High Court in exercise of its revisional jurisdiction to have indulged in reassessment of evidence and thereby interfered with the concurrent findings of facts recorded by the two Courts below, especially when it was found by the High Court that the tenant’s wife had already acquired a vacant accommodation in the town of Tenali and the tenant himself was transferred from Tenali to Marcherla. Since the petition deserves to succeed on these two grounds, we are not incline to go into the other grounds on which the landlord sought eviction of the respondent-tenant.”
23.2 He has also relied on the decision of Vaneet Jain V. Jagjit Singh, reported in AIR 2000 SC 2080, wherein it has been held as under :
“The conclusion to the contrary arrived at by the High Court after reassessment of evidence and on basis that landlord was enrolled with Employment Exchange was not permissible under law.”
24. I have considered the contentions made by the learned counsel for the respondent regarding the jurisdiction of this Court under Section 29(2) of the Bombay Rent Act. The High Court has much more revisional power u/s 29(2) of the Bombay Rent Act than revisional power under Section 115 of the Civil Procedure Code. There is no such restriction or limitation in exercise of revisional power u/s 29(2) of the Bombay Rent Act. As per the settled law, under revisional jurisdiction the High Court cannot reassess the evidence but where the findings are perverse and wrong law has been applied in arriving at conclusion and miscarriage has been caused and relevant admissible evidence has not been considered or has not been taken into account and inadmissible evidence has been taken into consideration, then powers under revisional jurisdiction can be exercised by the High Court. Where the Courts below have recorded the concurrent findings of fact, the High Court would not have exercised revisional jurisdiction to appreciate the evidence of the parties and to arrive at different finding or substitute the finding which is arrived by by the Courts below on the basis of the reappreciation of the evidence. There is no controversy in this respect, as in the present case the Courts below have recorded the concurrent findings of the fact that the petitioner-tenant has acquired alternative suitable residential accommodation in the name of her son and she has shifted there and she is residing with her son in the newly acquired residential accommodation. As newly acquired residential accommodation has been obtained by the petitioner-tenant herself, it would be deemed that she has parted her legal possession of the tenanted premises as well as she has domain over that newly acquired residential accommodation. The concurrent findings recorded by the Courts below cannot be disturbed in revisional jurisdiction only on the basis that she had legal right in the suit premises as held by the Supreme Court in the case of Anandi D. Jadhav (supra). The facts of the present case are quite different than the facts of case of Anandi D. Jadhav before the Supreme Court.
25. Learned counsel for the petitioner submitted that though notice is not required for recovery of vacant possession of the suit premises u/s 13(1)(l) of the Bombay Rent Act, but the notice for terminating tenancy is required, as held by this Court in the case of Shantaben Harilal Brahmabhatt V. Hasmukhlal Maneklal Chokshi, reported in 2001 (2) G.L.R.1615. I have considered this contention of the learned counsel for the petitioner. But in the above case of Shantaben Harilal Brahmabhatt, the notice is required u/s 12(2) of the Bombay Rent Act, in which tenancy is required to be terminated. If the tenancy has not been terminated in that notice, then the Court can take a decision that the tenancy has not been terminated. But the notice was not sufficient in that case. However, under the provisions of Section 13(1)(l) of the Bombay Rent Act, no legal notice is required for terminating the tenancy. Therefore, this contention of the learned counsel for the petitioner is misconceived and hence the same is not accepted.
25.1 Learned counsel for the petitioner further relied on the decision of the Supreme Court in the case of V. Dhanapal Chettiar V. Yasodai Ammal, reported in AIR 1979 SC 1745, wherein it has been held as under :
“The tenant becomes liable to be evicted and forfeiture comes into play only if he has incurred the liability to be evicted under the State Rent Act, not otherwise.”
But the statutory notice is required only u/s 12(2) of the Bombay Rent Act for recovery of vacant possession of the suit premises on the ground of arrears of rent six months or more than six months.
26. I have carefully considered the submissions made by the learned counsel for the parties, relevant material on record and the various decisions of the Supreme Court and the different High Courts and in the facts and circumstances of this case, I do not find any good reason calling for interference with the concurrent findings of the Courts below. Accordingly, this Civil Revision Application is dismissed. Rule is discharged, with no order as to costs.
27. In the last, the learned counsel for the petitioner requested this Court to stay operation, execution and implementation of this order for a period of six weeks to enable to the petitioner to avail remedy available under the law. In the facts and circumstances of this case, I do not find any good reason to accede the request made by the learned counsel for the petitioner and accordingly the same is refused.