Neutral Citation No. - 2025:AHC:107070 Court No. - 2 Case :- MATTERS UNDER ARTICLE 227 No. - 6506 of 2025 Petitioner :- Smt. Sarla Devi And 6 Others Respondent :- Laxmi Narayan Gupta And 7 Others Counsel for Petitioner :- Hari Bans Singh Counsel for Respondent :- Manish Tandon Hon'ble Saral Srivastava,J. 1. Heard learned counsel for the petitioners and Sri Manish Tandon, learned counsel for the respondents. 2. The petitioners by means of the present petition under Article 227 of the Constitution of India have assailed the judgement and decree dated 30.08.2022 passed by the Judge Small Cause Court, Kanpur Nagar in S.C.C. Case No.142 of 2001 and judgement and order dated 13.01.2025 passed by the Additional District Judge, Court No.7, Kanpur Nagar in S.C.C. Revision No.281 of 2022. 3. The respondent/plaintiff instituted S.C.C. Suit No.142 of 2001 in respect of a House No.15/271, Civil Lines, Kanpur Nagar (hereinafter referred to as 'house') which consisted of a hall, platform (चबबतरर) existing outside the house. The aforesaid suit has been instituted on the ground that petitioners are in arrears of rent. The other ground of institution of suit was that petitioners have let out the hall to one Ashok Kumar, defendant no.2 for establishing flour mill ( आटर चककक). The further ground in the suit was that the petitioners converted the platform into a shop and let out the same to defendant no.3-Ramakant Pathak for running a stationery shop. Thus, it is stated that petitioners had made material alteration in the house which has diminished the value of the property. 4. It is further stated that a notice under Section 106 of Transfer of Property Act terminating the tenancy of petitioners was given by the plaintiff/respondents by registered post which was duly served upon the petitioners, and tenancy of petitioners was terminated in accordance with law. 5. The petitioners filed written statement contending inter-alia that flour mill ( आटर चककक) has been established since long by petitioner (defendant no.1) Smt. Sarla Devi and defendant no.2-Ashok Kumar was her employee. It has also been alleged in the written statement that defendant no.3-Ramakant Pathak was also her employee. 6. The Trial Court framed several issues which reads as under:- "1- कयर वरददगण एवव मबल पततवरतदनद सवखयर 1 कक मधय भबसवरमद एवव तकररयकदरर कक समबनध थक ? 2- कयर तकररयर 89 रपयक 67 पपसक पततमरह अलरवर करर कक हप? 3- कयर पततवरतदनद सवखयर 1 दररर तकररयर अदर करनक मम वयततकम तकयर हप? 4- कयर पततवरददगण नक वरदगसत समपतत मम सररवरन पररवतरन तकयर हप तजससक वरदगसत समपतत तवरतपत हहई हप तथर मबलय मम कमद आयद हप? 5- कयर पततवरतदनद सवखयर 1 नक पततवरदद सव0 2 व 3 कक तशकमद तकररयक पर उठरयर हप? 6- कयर पततवरददगण धररर 20 (4) यब०पद०एकट 13 सनन 1972 व आदकश 15 तनयम सद०पद०सद० कर लरभ परनक कक अतधकररद हप? 7-कयर पततवरतदनद सवखयर 1 कक तकररयकदररद वपध नकतटस कक दररर समरप कक गयद हप? 8. वरददगण तकस अननतकष कक परनक कक अतधकररद हप?" 7. The Trial Court on the issue no.1 recorded a finding that there exists relationship of landlord and tenant between petitioners and respondent no.1. On the issue no.2, the Trial Court held that rent of the house was Rs.89/- and 67 paise. The issue no.3 was also decided in favour of the respondents by the Trial Court holding that the petitioners have defaulted in payment of rent. 8. On the issue no.4, the Trial Court recorded a finding that petitioners had made material alteration on the property due to which, nature of property had changed and value of the house has diminished. Accordingly, it held that plaintiff/respondent succeeded in proving the case for eviction of petitioners under Section 20(2) (ग) of U.P. Act No.13 of 1972. 9. On the issue no.5, the Trial Court recorded a finding that petitioners had let out the house to defendant nos.2 & 3. On the issue no.6, the Trial Court recorded a finding that petitioners are not entitled to the benefit of Section 20 (4) of U.P. Act No.13 of 1972. On the issue no.7, the Trial Court held that notice terminating the tenancy of petitioners is a valid notice. 10. Against the aforesaid judgement and decree passed by the Trial Court, the petitioners preferred S.C.C. Revision No.281 of 2022. The Revisional Court also affirmed the finding of the Trial Court and dismissed the revision preferred by the petitioners. 11. Challenging the aforesaid judgement and decree, learned counsel for the petitioners has contended that Smt. Shashi Gupta had executed Power of Attorney in favour of one Rajendra Narayan Gupta, who appeared before the Trial Court to prove the case of plaintiff/respondent. It is contended that the law is settled that it is the plaintiff, who is to appear before the Court to prove the case, and Power of Attorney holder cannot appear to prove the case on behalf of plaintiff. Accordingly, it is contended that the Trial Court has erred in law in decreeing the suit. 12. It is further contended that in such view of the fact, the impugned judgement and decree passed by the subordinate Courts are not sustainable in law and deserves to be set aside. In support of his aforesaid contention, learned counsel for the petitioners has placed reliance upon the judgement of Apex Court in the case of Vidhyadhar Vs. Mankik Rao and Another 1999 RJ 394. 13. Per contra, learned counsel for the respondents would contend that the suit has been instituted on the ground of default in payment of rent and material alteration. It is submitted that plaintiff/respondent no.1-Laxmi Narayan Gupta earlier executed Power of Attorney in favour of Rajendra Narayan Gupta who was his brother. After the death of Laxmi Narayan Gupta, plaintiff/respondent no.2-Smt. Shashi Gupta executed power of attorney in favour of Rajendra Narayan Gupta. It is submitted that Power of Attorney holder is the brother-in-law (devar) of respondent no.2 and he being close relative has full knowledge about the fact disclosed in the plaint, therefore, in such view of the fact, the Trial Cort has not committed any error of law in decreeing the suit, and the Revisional Court has also not erred in law in affirming the judgement and decree passed by the Trial Court. 14. It is further contended that the Trial Court has recorded a categorical finding in respect of material alteration, and the finding returned by the Trial Court on the issue of material alteration has not been assailed by the petitioners in the revision, and thus, even otherwise this Court may refrain to grant the relief under Article 227 of the Constitution of India where no injustice is caused to the petitioners. 15. I have considered the rival submissions of the parties and perused the record. 16. So far as the issue with regard to the fact that the plaintiff no.2- Smt. Shashi Gupta ought to have appeared before the Trial Court is concerned, this Court may note that the suit had been instituted on the ground of default in payment of rent and material alteration. The petitioners are the tenant of the house since decades. The plaintiff/respondent has established the fact that the petitioners had made material alteration in respect to the house. The fact of material alteration is not a fact which can only be in exclusive knowledge of the plaintiff. 17. The Power of Attorney holder is the family member and must be having knowledge about the change affected in the house by making material alteration by the petitioners, therefore, in such view of the fact, it is not necessary that it is only plaintiff no.2 who ought to have appeared before the Court and prove the case. 18. The judgement of the Apex Court relied upon by the learned counsel for the petitioner in the case of Vidhyadhar (supra) is not applicable in the facts of the present case for the reason that it was a case where defendant no.1 pleaded certain facts in the written statement, but he did not come forward to prove the facts stated in the written statement by entering into the witness box. In such context, the Apex Court held that where a party to the suit does not appear into the witness box and states his own case on oath and does not offer himself to be cross-examined by other side, a presumption would arise that the case set up by him is not correct. The facts in which the law has been laid down in the aforesaid case are different from the facts in the present case, and therefore, the said judgement of the Apex Court does not come in aid to the petitioner. 19. This Court also in the case of Dr. Rajeev Mittal Vs. Smt. Sushila Devi and Another 2024 (3) ARC 622 has considered the judgement of Vidhyadhar (supra) and distinguished the same and relying upon the judgement of Man Kaur (Dead) by Lrs. Vs. Hartar Singh Sangha 2010 (10) SCC 512 held that in a rent control proceeding, a close family member of a landlord can give testimony and prove the case of plaintiff. In such view of the fact, the aforesaid contention of learned counsel for the petitioner is misconceived. 20. Even otherwise, though a ground has been taken by the petitioner in the revision challenging the judgement and decree passed by the Trial Court on the issue that the plaintiffs failed to prove their case as their Power of Attorney holder appear before the Court to prove their case, but the Revisional Court has not returned any finding on the said issue. 19. A specific query was put to the learned counsel for the petitioners as to whether the ground no.3 stated in the memo of revision has been pressed by the counsel for the petitioners before the Revisional Court or not, but he could not reply to the aforesaid query. 20. The petitioners in the petition have nowhere stated that the aforesaid ground was pressed by the counsel for the petitioners before the Revisional Court, and the Revisional Court failed to consider the same nor the petitioners have filed any certificate of the counsel who appeared before the Revisional Court on behalf of the petitioners and argued the matter certifying that the ground no.3 taken in the revision was pressed before the Revisional Court, and yet the Revisional Court failed to record any finding. 21. In such view of the fact, it can be presumed that the ground no.3 as stated in the revision was not pressed by the counsel for the petitioners in the revision, and once the said ground has not been pressed and has been waived by the petitioners, it is not open to the petitioners to take such ground before this Court under Article 227 of the Constitution of India. 22. It is pertinent to mention that petitioners have not assailed the finding of the Trial Court on the issue of material alteration before the Revisional Court as petitioners have acquiesced to the same and once the petitioners have acquiesced to the finding of the Trial Court with material alteration, this Court does not find any ground even otherwise to interfere with the impugned orders. 23. Thus, for the reasons given above, the present petition under Article 227 of the Constitution of India lacks merit and is hereby dismissed with no order as to costs. Order Date :- 8.7.2025 Sattyarth Digitally signed by :- SATTYARTH ANAND High Court of Judicature at Allahabad