ORDER
S.S. Sudhalkar, J.
1. This petition has been filed by the Prem Sagar tenant challenging the order of eviction passed by the Rent Controller as also affirmed by the appellate authority. Darbari Lal respondent- landlord has filed the eviction petition against the respondent-tenants on the ground that they have ceased to occupy the rented premises for a continuous period of four months without any reasonable cause. The case of the landlord is that the premises belongs to him and the respondent-tenant had taken the same on rent. The petition before the Rent Controller for eviction was filed on the ground of arrears of rent; that the tenants have ceased to occupy the premises for a continuous period of four months without any reasonable cause and that they have committed acts which are likely to impair materially the value and utility of the premises in dispute. It may be mentioned here that the ejectment order was passed on the ground of non-user as mentioned above.
2. The case of the respondent tenant regarding non-user is that the contentions regarding non-user are not true and that the premises are not remaining locked and that the labourers of respondent No. 1 (before the Rent Controller) are living in the factory premises (rented premises). They had also taken a stand that the ownership of the rented premises is not of Darbari Lal alone and that the property in question was leased out to M/s. Bajrang Metal, Jagadhri and that it has been carrying on its business in the premises in question.
3. Regarding Darbari Lal-respondent not being the only owner, it is not in dispute that the said respondent is a co-owner of the premises in question. Now if the petition is filed by the co-owner, it is not shown as to how he will not be entitled to get the eviction order in his favour if the other co-owner is not joined as party-applicant. It is well settled law that the co-owner can file a rent petition for possession of the premises against the tenant.
4. Regarding the question as to who was the lessee, learned counsel for the respondent has drawn my attention to Ex. PE which is Hindi version of the rent note. Learned
counsel for the respondent- landlord argued that in the rent note the present petitioner’s father Rameshwar Dass and Raghunandan Lal father of respondent No. 5 are shown to be owners of M/s. Bajrang Metal Rolling Mills. Learned counsel for respondents Nos. 1 to 4 argued that owners of the rolling mill is only a description of the tenants and therefore, there is no mistake committed in naming of the tenant in the rent petition. Moreover he has also argued that even if it is held that the tenant was M/s. Bajrang Metal Rolling Mills, then also the heirs of both the owners of Bajrang Metals and Rolling Mills have been joined as respondents in the rent petition and hence the arguments advanced by learned counsel for the present petitioner cannot be accepted. There is a force in his argument. The rent note does not specifically show that M/s. Bajrang Metal is a tenant and even if it is so mentioned, the owners of Bajrang Metal and Rolling Mills are on record as respondents and hence it does not make any difference so far as present petition is concerned.
5. The question that remains for consideration is that whether the Courts below have erred in holding that the eviction order passed against the petitioner is legal or proper.
6. The relevant section i.e. Section 13(2) (v) of the Haryana Urban (Control of Rent and Eviction) Act, 1973 (hereinafter referred to as “the Act”) can be reproduced as under :
“that where the building is situated, in a place other than a hill station, the tenant has ceased to occupy the building for a continuous period of four months without reasonable cause;
7. The first argument advanced on this point by learned counsel for the petitioner is that it is not proved by the landlord that the premises are not being used. It is his case that his workers are staying in the rented premises and, therefore, the possession could not have been ordered under this provision of the Act. In the written statement it is mentioned that:
“(if) That sub-para (ii) of the application is wrong and hence denied. It is denied that the premises are lying locked. The labour of respondent No. 1 are living in the factory………”
8. Therefore, the consideration of the question narrows down to the point as to
whether labourers of the tenant are residing in the premises or not and if so whether the premises can be said to be under non-use or not. Learned counsel for the petitioner has also argued that it was for the landlord to prove that the contention of the respondent that the labourers are not residing in the premises is wrong. In support of the contention raised by the learned counsel for the petitioner, he has cited various authorities. He has cited the case of Chander Kishor Sharma v. Kampa Wati (1984) 1 Rent L.R. 107: (AIR 1984 Delhi 14) wherein it has been held that the initial onus to prove the ground for ejectment lies on the landlord and not on the tenant.
9. Learned counsel for the petitioner has also argued that the ground of ceasing to occupy the rented premises only is not sufficient ground for eviction and it is to be shown that the same is without any reasonable cause. He has cited the case of M.R.M. Duraiappa Nadar v. P. Thirupursasundariammal (1989) 2 Rent LR 494.
10. There is no dispute that the initial onus to prove the ground for eviction is on the landlord. In the present the landlord has filed the rent petition for ejectment and the respondent- tenants have filed the written statement taking a specific plea that they are using the premises for the residence of their labourers. In case of Gopal Krishnaji Ketkar v. Mohamed Haji Latif, AIR 1968 SC 1413, it has been held that a party in possession of best evidence, should produce the same and if it is not produced even if the burden of proving the same is not on that party, adverse inference against that party has to be drawn because of the suppression of the material evidence. In the present case the tenants, as mentioned above have come forward with a specific case that their labourers are staying in the premises in dispute and thus it is for them to prove the same. Moreover, if there was any reason for non-user, it is also for them to prove the same, because they knew the reason for the non-user and not the landlord, and they were having the best evidence regarding the same.
11. Learned counsel for the present petitioner has argued that the landlord has not entered into the witness box and he has examined his power of attorney holder and, therefore, the landlord has not discharged
his burden. In the present case, the landlord has examined Anil Kumar Gupta his attorney, who has filed the present petition. Learned counsel for the petitioner has cited before me the case of Ram Parshad v. Hari Narain AIR 1998 Raj. 185. In the said case, it was held by the Rajasthan High Court that power of attorney holder is not entitled to appear as witness for party appointing him a attorney and the word “acts” in the power of attorney does not include act of power of attorney holder to appear as witness on behalf of a party. It is also held in the said :case that the attorney of a party can appear only as a witness in his personal capacity and whatever he has knowledge about the case, he can state on oath but he cannot appear as a witness on behalf of the party in the capacity of that party. In the present case in whatever capacity Anil Kumar Gupta, attorney of landlord has stepped into the witness box as AW 1, the question is regarding the appreciation of evidence that comes out from his deposition. Therefore only because Anil Kumar Gupta is power of attorney holder, his evidence cannot be discarded on that account. If the landlord has to prove his personal necessity and certain questions are required to be put to the landlord, if power of attorney does not have personal knowledge thereof, then the landlord’s not entering the witness box will assume importance. Here, the question regarding specific personal knowledge of the landlord is not there. It is also not a case here wherein the non-payment of rent has been alleged and it has been contended by the tenant in the written statement that he had paid the rent to the landlord and the landlord only will have personal knowledge regarding the same, if the rent is paid to him in the absence of anybody else. Therefore, the case of Ram Prasad v. Hari Narain AIR 1998 Raj 185 does not go against the respondent-landlord in this case.
12. Learned counsel for the petitioner has also cited before me the case of Ishwar Bhai C. Patel v. Harihar Behera (1999 (2) JT (SC) 250 : (AIR 1999 SC 1341). It has been held therein that if a party to suit not entering in witness box, either to prove its own case or to state against case of opposite party, adverse presumption has to be drawn against such party. The facts of that case appear in para 15 of the judgment of that case. They are as under :
“Admittedly defendant No. 1 had an account in the Central Bank of India Limited, Sambalpur Branch which his father, namely, respondent No. 2, was authorised to operate. It is also an admitted fact that it was from this account that the amount was advanced to the appellant by respondent No. 2. It has been given out in the statement of respondent No. 2 that when the appellant had approached him for a loan of Rs. 7000/-, he had explicitly told him that he had no money to lend whereupon the appellant had himself suggested to advance the loan from the account of respondent No. 1 and it was on his suggestion that the respondent No. 2, issued the cheque to the appellant which the appellant, admittedly encashed. This fact has not been controverted by the appellant who did not enter the witness box to make a statement on oath denying the statement of defendant (respondent) No. 2 that It was at his instance that respondent No. 2 had advanced the amount of Rs. 7000/- to the appellant by issuing a cheque on the account of defendant (respondent) No. 1. Having not entered into the witness box and having not presented himself for cross-examination, an adverse presumption has to be drawn against him on the basis of principles contained in illustration (g) of Section 114 of the Evidence Act.”
13. Therefore, it can be found that in the case of Ishwar Bhai C. Patel v. Harihar Behera (supra), respondent No. 2 has stated in his deposition that when the appellant had approached him for a loan of Rs. 7000/-, he had explicitly told him that he had no money to lend whereupon the appellant had himself suggested to advance the loan from the account of respondent No. 1 and it was on his suggestion that the respondent No. 2 issued the cheque to the appellant and this fact was not controverted by the appellant who did not enter into the witness box. So in the facts of that particular case, the non-appearance of the appellant into the witness box assumed importance. If a party alone has a particular knowledge of the fact, it has to appear in the witness box and it cannot delegate his power to appear in the witness box to his attorney. In the present case, there is a specific case that the petitioners are using the premises for the residence of their labourers and if that is so, it is a fact which is in the knowledge of the tenant and it is for the tenant to prove the same. In the present case if the landlord did not enter into the witness box, no adverse inference can be drawn against him. On the countrary, the principles laid down in the case of Gopal Krishnaji Ketkar v. Mohamed Haji Latif (AIR 1968 SC 1413) (supra) shall be more applicable to the facts of the present case.
14. The next point argued by learned counsel for the petitioner is that in this particular case, Local Commissioner was appointed and firstly, the Local Commissioner did not give him notice and, secondly, the Local Commissioner cannot be appointed to create evidence. Regarding the first point, learned counsel for the respondent-landlord has argued that the Local Commissioner was appointed to see that what is the position of the site in question and if a notice was given to the tenant, the position could have been changed by the tenant. I agree with this contention. Learned counsel for the landlord has cited the case of Hukum Chand v. The Financial Commissioner, Haryana Chandigarh (1983) 85 Pun. L.R. 306 in which it has been held that “the learned counsel for the petitioner has rightly contended that in case a notice had been issued by the Local Commissioner, the tenant would have easily managed to remove the signboard and the purpose of the visit of the Local Commissioner would, thus, have been frustrated. The evidence of the Local Commissioner was also relied upon in that case. Regarding the second point, it cannot be said that the Local Commissioner has created evidence. He has only noted and narrated as to what he found.
15. Learned counsel for the petitioner further argued that the reports of the Local Commissioner are verbatim the same and, therefore, the same should not be relied upon. As against this, it has been argued that no objection was taken to the reports of the Local Commissioner. Moreover if the facts are the same, that is, if there is no change in the position, and if the same language is used by the Local Commissioner in his reports, there is no reason to discredit the report on this point. According to the reports of the Local Commissioner, when he visited the site, he found the same lying closed and that it appeared that the gate was not opened for a number of years. The Local Commissioner also noticed various other
facts that gave him reason to say that the premises are lying closed for the last many years. When this position did not change during his subsequent visits, as mentioned earlier, the reports of the Local Commissioner cannot be discarded as being verbatim. To repeat, it may be mentioned that, learned counsel for the landlord has argued that no objection was to the reports of the Local Commissioner and this argument has not been controverted.
16. Next point argued by learned counsel for the present petitioner is that the pleadings regarding non-user are not proper and, therefore, the ejectment order should be quashed. The pleading on this point in para 4(ii) of the rent petition, which are as under :
“that the respondents have ceased to occupy the premises in dispute for a continuous period of more than 4 months without reasonable cause and in fact the premises in dispute are lying locked and closed for the last more than 4-5 years with the result that the premises in dispute now stands in a very highly dilapidated condition and as such rendered unsafe for human inhabitation. The exact position of the premises in dispute in so far as its present condition is concerned cannot be explained as the premises in dispute stands locked and closed for the last more than 4/5 years”
Learned counsel for the petitioner has also cited the case of Puran Singh Tailor Master v. Ram Murti (1981) 2 Rent L.R. 448. In that case, learned single Judge of this Court has held that the landlord was under obligation to specify in the pleadings the period during which the tenant ceased to occupy such buildings and that the allegations made in the application were quite vague as no period during which the tenant ceased to occupy the premises was mentioned therein and mere repetition of the language of the section is not a sufficient compliance of the provision and was not sufficient to warrant the order of ejectment. In the present case, the pleadings of non-user of the premises as mentioned above, are mere repetition of law. It is mentioned that the premises are not being used for the last 4-5 years. Moreover relying on the cases of Madan Gopal Kanodia v. Mamraj Maniram AIR 1976 SC 461 and Smt. Manjushri Raha v. B.L. Gupta AIR 1977 SC 1158, this Court has held in the case of Parmatma Kaur v. HUF Rajinder Parshad and Sons (Civil Revision No. 2237 of 1981) that when it is pleaded that the tenant has ceased to occupy the premises without sufficient cause, there is no reason to deprive the landlord of the order of ejectment which he had obtained.
17. Regarding the factual aspect, learned counsel for the present petitioner argued that in his deposition AW 1 has stated that the premises had lying closed for the last 10-12 years while in the rent petition, it is stated that the premises was lying closed for the year 4-5 years. It can be seen that ejectment petition was filed in the year 1991 and the deposition of AW 1 was recorded in the year 1997. Therefore, there appears to be no discrepancy between the pleadings and the deposition.
18. In view of the above reasons, there appears to be no reason for disturbing the findings of the Courts below. Hence, this revision petition deserves to be dismissed.
19. In the result, this petition is dismissed.