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Judgment
Justice Rajiv Sharma, Judge
This civil revision is directed against order dated 15th May, 2003 passed by the learned Appellate Authority III, Kangra at Dharamshala in C.M. Appeal No.7-K/98.
Material facts necessary for adjudication of this revision are that the petitioner/landlady (hereinafter referred to as "the landlady" for convenience sake) has filed a petition u/s 14 of the H.P. Urban Rent Control Act (hereinafter referred to as "the Act" for convenience sake) against the respondents/tenants (hereinafter referred to as "the tenants" for convenience sake) seeking their eviction on three grounds; firstly, the demised building is required for self occupation of the landlady and her family members, secondly, the tenants are in arrears of rent since 1st January, 1990 and thirdly, the demised building is required bona fide by the landlady for the purpose of rebuilding. The demised building is in a dilapidated condition as well as one of the oldest katcha buildings of the town. The petitioner has sufficient means to reconstruct the same. She has a proposal to reconstruct the same according to her personal needs and with modern amenities and design. The landlady also moved an application under Order 6 Rule 17 of the CPC seeking amendment of petition. It was listed before the learned Rent Controller (II), Kangra on 24.4.1998. Thereafter the application came up before the learned Rent Controller (II), Kangra on 1st May, 1998 on which date the reply was taken on record. The application under Order 6 Rule 17 of the CPC was allowed by the learned Rent Controller on 6th May, 1998 by passing a detailed order. According to the learned Rent Controller, the amendment sought was of clarificatory in nature. However, it will be apt at this stage to refer to the amendment sought for in the eviction petition. The ground added by the landlady was that the demised building was required bona fide by her for the purpose of rebuilding, which could not be carried out without its being vacated. Reply was filed to the amended petition by the tenants. According to the tenants, the premises were not bona fide required by the landlady, they were not in arrears of rent. The demised premises were not required bona fide for reconstruction. The construction could be carried out without the same being vacated by the tenants. There was no bona fide need of the demised premises for the landlady or her family members. The building was fit for habitation. It was not katcha and also not in a dilapidated condition as alleged.
The learned Rent Controller framed the issues on 12.12.1995. The learned Rent Controller ordered the eviction of the tenants on two grounds, namely, that they were in arrears of rent and secondly, the premises were required bona fide by the landlady for building/rebuilding, which could not be carried out without the premises being vacated by the tenants. The ground of bona fide requirement by the landlady was rejected by the learned Rent controller. The tenants preferred an appeal before the learned Appellate Authority (III), Kangra at Dharamshala. The learned Appellate Authority (III), Kangra at Dharamshala accepted the appeal on 15th May, 2003. The point of arrears of rent was not looked into by the learned first appellate authority since the rent as calculated by the learned Rent controller was deposited within the period prescribed. However, the learned appellate authority reversed the finding of the learned Rent Controller on the ground of the premises being required by the landlady bona fide for building/rebuilding, which could not be carried out without evicting the tenants. The learned appellate authority has come to the conclusion that the landlady has not led any independent evidence to substantiate the plea of building/rebuilding. According to the learned appellate authority, only the special power of attorney has appeared in the witness box and his evidence could not be looked into. It is in these circumstances, the present revision petition has been filed by the landlady.
Mr. Bhupender Gupta, learned Senior Advocate assisted by Mr. Neeraj Gupta, learned counsel for the petitioner has supported the findings recorded by the learned Rent Controller. He then contended that the landlady has amply proved that the premises are bona fide required by her for building/rebuilding, which could not be carried out without the same being vacated by the tenants. According to him, the evidence of the special power of attorney, who was none other than the husband of the landlady, could not be ignored. Alternatively, he contended that even if the evidence of the special power of attorney of the landlady is not taken into consideration, there was other sufficient evidence on record to prove that the premises were required bona fide by the landlady for the purpose of building/rebuilding, which could not be carried out without the premises being vacated by the tenants.
Mr. K.D. Sood, learned counsel for the tenants has supported the judgment passed by the first appellate authority. He has also argued that his clients have not been given the opportunity to lead evidence after the amendment was allowed by the learned Rent Controller on 6th May, 1998 in the eviction petition.
I have heard the learned counsel for the parties and gone through the pleadings carefully.
The core question involved in this petition is whether the premises are required bona fide by the landlady for building/ rebuilding which cannot be carried out without the same being vacated by the tenants. In the un-amended petition, the ground was that the demised premises were required bona fide by the landlady, however, by way of amendment, it was averred that the demised building was required by the landlady for the purpose of rebuilding, which could not be carried out without its being vacated. The application under Order 6 Rule 17 of the CPC was filed on 24th April, 1998 and the same was allowed by the learned Rent Controller after hearing the parties, on 6th May, 1998. The tenants have not preferred any revision against this order dated 6th May, 1998.
Since the tenants have not assailed the order dated 6th May, 1998, they are estopped from raising this plea now.
Now the Court will advert to the evidence led by the parties.
PW-1, Surinder Kumar has produced Ex.PW-1/A whereby the building plan of the landlady has been approved. PW-2, Roshan Lal, Patwari has deposed that the landlady has no other house in his jurisdiction.
PW-3, Ravinder Kumar Sood is the power of attorney of landlady. He has proved the copy of power of attorney Ex.P-1. He has also deposed that he is well conversant with the facts of the present case. The landlady wanted the accommodation to be vacated for her bona fide requirement. The house is situate in Municipal Council, Kangra. The building is eighty years old. The house is made of mud bricks. The wood used in the building has deteriorated. The tin roof is rusted. The building is in a dilapidated condition and is risky for habitation. It is made in old style. The landlady wants to rebuild the premises after demolishing the existing building. The same is not possible without evicting the tenants. She has sufficient means to reconstruct the building. She is entitled to raise a loan to the extent of ` 99,000/-after raising her own share to the extent of ` 44,000/-. She has also another 50,000/- rupees with her. The building plan has been duly approved by the Municipal Council. The tenants have not paid the rent since 1st January, 1990. The landlady has called upon the tenants to vacate the premises, but of no avail. He has admitted in cross-examination that no notice has been issued to the Municipal Council, Kangra about the dilapidated condition of the house. He has denied the suggestion that the condition of the building is good. He has not obtained any certificate from the expert from the PWD or any Engineer about the condition of the building.
PW-4, Dhani Ram has also supported the version of PW-3. According to PW-4, the building is in a dilapidated condition. The building is made of mud bricks. The roof is also in a bad shape and has rusted. The wood has decayed and the house is not fit for human habitation. PW-5, Shri Bharti Puri has proved the map Ex.PW-5/A. He has admitted in his cross-examination that he has not gone inside the house.
RW-1, Jagdish Raj has testified that the house falls within Municipal Council, Kangra. The building is eighty years old. There are many other old buildings in the town, though he has denied the suggestion that the house in question is built up with mud bricks. He has denied the suggestion that the tin is rusted though he has admitted that the building is of old design. The buildings surrounding the demised premises are also old. He has categorically admitted in cross-examination that in case new building is to be reconstructed, the existing building is required to be demolished.
RW-2 is Suram Chand. He has feigned ignorance that the building was eighty years old. The house is built of mud bricks. Later on volunteered, the house is built of stone bricks. He has denied the suggestion that the construction material has decayed. He has also denied the suggestion that the tin roof has rusted, though he has admitted that the building is of old design. He has admitted that the house is situate in Municipal Committee, Kangra. He has admitted in his cross-examination that the government employee is entitled to raise loan. He has also admitted categorically that the new house could not be rebuilt without vacating the existing house.
RW-3, Rattan Lal has testified that the condition of the building was good. He has admitted in his cross-examination that the house is build of mud bricks and the bricks have been fixed with mud. He has denied the suggestion that the tin roof is rusted. He has feigned ignorance that the building is eighty years old. He has also feigned ignorance that the wood has decayed. He has also admitted that he does not possess any diploma or certificate.
RW-4, Jagdish Chand has testified that the condition of the house is good. In his cross-examination, he has admitted that the house is build of mud bricks and the bricks have been fixed with mud. He has admitted that the house is old. However, earlier he could not give the exact life span of the building, but later on volunteered, it may be 50-60 years old. He has also admitted that in case the suit premises are to be reconstructed, the existing structure has to be demolished. He has admitted that the landlady is possessing sufficient means.
RW-5, is Shri Rakesh Kumar. According to him, the condition of the building is good. There is no possibility of its falling. The wood used in the construction is also in good condition. He has admitted in his cross-examination that the house is build of mud bricks and the bricks are fixed with mud. Age of the building must be 30-35 years.
The building map has already been got approved from the competent authority on 11th November, 1993 as per statement of Surinder Kumar, Junior Engineer, Municipal Council, Kangra vide Ex.PW-1/A. It has come in the statement of PW-3 that the building is eighty years old. It is made of mud bricks and the bricks have been fixed with mud. The wood has decayed. The roof has rusted and the landlady intends to reconstruct the building after demolishing the old structure, which could not be carried out without the same being vacated by the tenants. He has also deposed about the financial status of the landlady. PW-4, Dhani Ram has also supported the version of PW-3. According to him, the building was in a dilapidated condition and it was made of mud bricks and the bricks have been fixed with mud. The tin roof was also in bad condition and it has rusted. The wood has decayed and the house is not in a habitation condition. PW-5, as noticed above, has proved Ex.PW-5/A, i.e. copy of map. Even RW-1 has testified that the demised premises are old. He has also admitted that in case the new building is to be constructed, the old building is to be demolished. RW-2, Shri Suram Chand has also admitted that the demised premises were of old style. He has also admitted that in case the new building is to be constructed, the old building is required to be demolished. RW-3 in his cross-examination has admitted that the house is made of mud bricks and the bricks have been fixed with mud. RW-4 has stated that the house is constructed of mud bricks and the bricks fixed with mud. The house is old. Though he could not state initially what is the age of building, however, later on volunteered it could be 50-60 years old. According to RW-5, the building was 30-35 years old. It was made of mud bricks. It is thus conclusively proved from the statements of witnesses, discussed hereinabove and the documents placed on record that the building is eighty years old. It is made of mud bricks. The wood has decayed. It is in a dilapidated condition. It has also come in the evidence that the landlady has sufficient means to reconstruct the building. Even the tenants and their witnesses have admitted that in case the building is to be rebuilt, the existing structure is required to be demolished. The building is situate in commercial area. The Municipal Committee has already approved the building plans vide Ex.PW-1/A.
Mr. K.D. Sood, learned counsel for the tenants has strenuously argued that the statement of PW-3, Ravinder Kumar Sood could not be taken into consideration since he was only the power of attorney of the landlady. It has come in the statement of PW-3 that he was well conversant with the facts of the case. Mr. K.D. Sood has also argued that since the landlady has not appeared in the witness box, an adverse inference has to be drawn against her. Mr. Bhupender Gupta, learned Senior Advocate to the contrary has argued that PW-3 is none other than the husband of landlady. He being fully conversant with the facts of the case was competent to depose and his evidence could not be ignored.
Their Lordships of Hon''ble Supreme Court in Pandurang Jivaji Apte Vs. Ramchandra Gangadhar Ashtekar (Dead) by Lrs. and Others, have held that the question of drawing an adverse inference against a party failing to appear in Court would arise only when there is no other evidence on record on the point in issue. Their Lordships of the Hon''ble Supreme Court have held as under (para 11):
In our opinion the question of drawing an adverse inference against Apte and Bavdekar on account of their absence from the court would arise only when there was no other evidence on the record on the point in issue. The first appellate court had relied upon the admission of the decree-holder himself and normally there could be no better proof than the admission of a party. The High Court however, has observed in its judgment that the decree-holder has made no admission in his evidence which would justify refusal to draw adverse inference for the failure of Apte and Bavdekar to step into the witness box.
Learned Single Judge of Rajasthan High Court in Lt. Col. P.L. Bawa versus Lt. Col. Bhawani Singh 2002(2) RCR 711 has held that statement of power of attorney holder can be read into evidence though it is for the court to draw the necessary inference in case of failure of the party to appear in person in the matter. The learned single Judge has held as under (para 17):-
Further, as per Section 60 of the Evidence Act so also Order 3 Rule 1 CPC, competency of a person to testify as a witness is different from that of credibility of the testimony of the witness inasmuch as Order 3 Rule 1 CPC does not restrict a holder of power of attorney to depose on behalf of the plaintiff (party) in relation to the matter in issue and more over deposition of the power of attorney holder is not a part of the pleadings, as it is a part of the procedure for proving a case according to Section 118 of the Evidence Act, and that being so, in view of Sections 118 and 66 of the Evidence Act, power of attorney holder is a competent witness and is entitled to appear as such and his deposition will be read in evidence on record. What precaution which requires to be taken is that it is for the Court to draw necessary inference in case of failure of the party to appear in person in the matter and it will consider the burden so discharged by the person appearing and whether power of attorney holder has personal knowledge of the matter in issue is a question which is to be thrashed by cross-examination. I am fortified from the view taken by this Court in Kailash Devi v. Matadeen Agarwal (supra) which was based on a catena of decisions referred to therein.
The Madhya Pradesh High Court in Shanti Devi Agarwal Versus V.H. Lulla, 2003(2) RCR has held that bona fide requirement is also with reference to family and it can be proved by any member of the family. The learned Single Judge has held as under (paras 10 and 11):-
Hon''ble the Apex Court in the matter of T.C. Mathai and Another Vs. The District and Sessions Judge, Thiruvananthapuram, Kerala, has held that the provisions of Power of Attorney Act, 1882 cannot override the specific provision of the statute which requires that a particular act should be done by a party in person and thus when the Criminal Procedure Code requires the appearance of an accused in a Court, it is no compliance with it if a power of attorney holder appears for him. Unlike the provisions of the Criminal Procedure Code where a party is required to appear in person and in case of exemption from personal appearance, is required to be represented by a pleader, the CPC does not enjoin on a party to appear in person in all circumstances until the appearance is dispensed with by the Court. Further in th4 case of P. Punnaiah and others Vs. Jeypore Sugar Co. Ltd. and others, Hon''ble the Apex Court has also held that except a few functions like quasi judicial or judicial functions, an agent/attorney can perform all the functions including the consent to an act. To clarify the position further it would be appropriate to reproduce the definition of words ''Power of Attorney'' and ''Evidence''. (The) Power of Attorney Act 1882 (amended by Act No.55 of 1982) u/s 1A defines the words ''power of attorney'' as:
Power of attorney includes any instrument empowering a specified person to act for and in the name of the person executing it.
Similarly (The Indian) Stamp Act 1899 defines the ''Power of Attorney'' as :
2(21) "Power of Attorney" includes any instrument (not chargeable with a fee under the law relating to court fees for the time being in force) empowering a specified person to act for and in the name of the person executing it.
That apart the Nagpur High Court in a judgment reported in AIR 1937 65 (Nagpur) has explained the term "power of attorney" as :
Power of attorney is an authority whereby one is set in turn, stead or lace of another to act for him.
Now coming to the expression ''evidence'', section 3 of the Indian Evidence Act defines as:
Evidence :- "Evidence" means and includes -
(1) all statements which the Court permits or requires to be made before it by witnesses, in relation to matters of fact under inquiry; such statements are called oral evidence;
(2) all documents produced for the inspection of the Court; such documents are called documentary evidence.
Thus a power of attorney holder, who virtually steps into shoes of a party can place materials in terms of the definition of ''evidence'' as above, on behalf of that party, before a Court under the provisions of Order 3 Rule 2 of the Code and also u/s 118 of the Evidence Act unless he stands disqualified for the reasons given in that section itself and further, admissibility of his evidence would be subject to rigorous procedure contained in Chapter X thereof. That apart, a bona fide requirement is also with reference to family and it can be proved by any member of the family. In the instant case old age of the plaintiff is a good ground that her son, the power of attorney holder, should have been allowed to tender evidence on her behalf.
Thus, in the premises discussed hereinabove and the decisions referred to, I do not agree with the ratio of the Rajasthan High Courts judgment in Ramprasad''s case (supra). Accordingly, the order dated 9-12-2002 impugned in the Civil Revision No.83/2003 insofar as it relates to rejecting an affidavit of the plaintiff''s son, being the power of attorney holder, to be treated as examination-in-chief of the plaintiff on account of her old age and health problem, is hereby set aside and it is held that the power of attorney holder cold do so on the plaintiff''s behalf in terms of the power of attorney.
Gujarat High Court in Lilavatiben Eknath Rana versus Urmilaben Satyenkumar Zaveri, 2004 (1) RCR 254 has held that when the plaintiff has not appeared himself, the evidence of Power of Attorney on his behalf is admissible. The learned Single Judge has held as under (para 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 cases of Ram Prasad Vs. Hari Narain and Others, , whereas the Rajasthan High Court in the case of Kailashi Devi Vs. Matadeen Agrawal and Others, 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.
The learned single Judge of Madhya Pradesh High Court in Bashir Versus Smt. Hussain Bano, 2005 (1) RCR 652 has held that there is no law that the bona fide need can be proved only by the evidence of the landlady. The learned single Judge has further held that Power of attorney holder a member of her family can depose on her behalf regarding her bona fide need. The learned single Judge has held as under (paras 12 and 14):-
The question of tendering evidence by holder of power of attorney on behalf of plaintiff/applicant is not res integra. A Single Bench of this Court in Vimla Devi v. Dulichand, 1994 (1) MP JR 144 by Hon''ble Justice R.C. Lahoti (as his Lordship then was) 144 held as under:-
Owner/landlady, a housewife did not enter witness box. Her husband, also a power of attorney holder appeared and deposed and few admissions by defendant and his witnesses were also there. Held non-examination of plaintiff was not fatal." (paras 6-7)
In Shiv Narayan Soni v. Smt. Parwati Bai, 1997 (1) Vidhi Bhaswar 280 has held as under:-
An attempt was also made to assail the order stating that the bona fide need of the landlady was not proved as she herself has not entered the witness box. This argument has also no force. She being a lady had executed general power of attorney in favour of her son who entered the witness box to prove her case. There is no law that the bona fide need can be proved only by the evidence of the landlady. It can also be proved through other witnesses. She being a lady and she having executed a power of attorney in favour of her son it was not compulsory for her to enter the witness box. Her husband was a Government servant and was occupying a Government accommodation. He retired and thereafter died. The eviction case was instituted in 1984 and till this date the landlady has not been able to get the possession of the accommodation because of the untenable defence raised on behalf of the tenant. The revision is, therefore, dismissed with costs. Counsel''s fee Rs.500/- is certified.
In Smt. Shanti Devi Agarwal Vs. V.H. Lulla, again learned single Judge has held as under:-
The plaintiff has assailed the order also on the ground that the Rent Controlling Authority has misconstrued and misapplied the provisions of Order 3 Rule 2 of the code and of Section 118 of the Evidence Act. The said provisions of Order 3, Rule 2 of the Code on re-production reads as :
ORDER III
RECOGNISED AGENTS AND PLEADERS
...
Recognised agents - The recognized agents of parties by whom such appearances, applications and facts may be made or done are -
(a) persons holding powers-of-attorney, authorizing them to make and do such appearances, applications and acts on behalf of such parties;
(b) ...
And the provisions of Section 118 of the Evidence Act on reproduction read as :
Who may testify - All persons shall be competent to testify unless the Court considers that they are prevented from understanding the questions put to them, or from giving rational answers to those questions, by tender years, extreme old age, disease, whether of body of mind, or any other cause of the same kind.
Explanation - A lunatic is not incompetent to testify, unless he is prevented by his lunacy from understanding the questions put to him and giving rational answers to them.
It was urged that while closing the plaintiff''s evidence, the Rent Controlling Authority seriously erred in also closing the evidence of other witnesses of the plaintiff''s side namely Mukesh and Balkishan, whose examinations-in-chief had already been placed on record by way of affidavits. That apart, it was also urged that though the matter was not fixed for the plaintiff''s evidence on 9-12-2002, still it was closed without assigning any reason, much less a ''valid reason''. On the other hand, it was submitted by the defendant that no power of attorney could be given to lead evidence on someone''s behalf; that Order 3 Rule 2 of the Code would not authorise the power of attorney holder to appear and give statement/evidence on behalf of a party and that the plaintiff did not submit her examination-in-chief in terms of Order 18, Rule 4 of the Code. The provisions of Order 18, Rule 4 of the Code on re-production read as :
ORDER XVIII
HEARING OF THE SUIT AND EXAMINATION OF WITNESSES
1....
...
...
3A....
4.Recording of evidence - (1) In every case, the examination-in-chief of a witness shall be on affidavit and copies thereof shall be supplied to the opposite party by the party who calls him for evidence:
Provided that where documents are filed and the parties rely upon the documents, the proof and admissibility of such documents which are filed along with affidavit shall be subject to the orders of the Court.
(2) ...
(3)...
(4) ...
(5) ...
(6) ...
(7) ...
(8) ...
Reliance was placed on a judgment of the Rajasthan High Court in the matter of Ram Prasad Vs. Hari Narain and Others, The ratio thereof with reference to Order 3 Rule 2 of the Code and Section 118 of the Evidence Act says that a power of attorney holder is not entitled to appear as a witness for the party appointing him power of attorney holder. The word ''acts'' in Rule 2 does not include act or power of attorney holder to appear as a witness on behalf of party.
The other revision namely the Civil Revision No.122/2003 has been filed by the defendant seeking to challenge the order of the Rent Controller dated 27-3-2003 on the ground that he has recalled the earlier order dated 9-12-2002 in violation of statutory provisions and by going beyond his jurisdiction. It was urged that instead of exercising powers u/s 151 of the Code, the Rent Controller Authority ought to have acted under the special provisions of Section 23 of the Act; that the Rent controlling Authority is not empowered to review his own order and that he cannot exercise inherent powers under the provisions of Section 151 of the Code. In opposition to these submissions of the defendant in the suit (the applicant herein), the plaintiff in the suit (the non-applicant herein) has submitted that in the wake of a host of decisions of this Court, the Rent Controller has rightly recalled his earlier order in exercise of powers u/s 151 of the Code.
On due consideration of rival submissions the Civil Revision No.83/2003 deserves to be allowed. In a Gurajat High Court judgment by Hon''ble Shri S.B. Majumdar, J. (as His Lordship then was) in the matter of Parikh Amratlal Ramanlal, Trustee and Administrator of Sanskrit Pathshala Institution and others v. Rami Mafatlal Girdharilal and others, AIR 1983 NOC 108 (Gujarat) it was held:-
Whether the general power of attorney holder of a party can be competent witness on behalf of a party before a judicial Tribunal or authority has to be answered in the light of Section 118 of the Evidence Act and for answering that question the provisions of Order 3, Rules 1 and 2(a) of the CPC are beside the point and can afford no guidance whatsoever. Giving deposition on oath as a power of attorney holder of party is not a part of pleadings. It is a part of the procedure for proving a case by examining a competent witness. Who can be a competent witness is indicated by the Evidence Act alone as per Section 118. the power of attorney holder of a party, only on the ground that he holds the power of attorney, cannot be said to be in a category of persons who are incapable of being witnesses as provided by Section 118 of the Evidence Act. Whether such a power of attorney holder has personal knowledge about the matters in controversy may be a question which can be thrashed out by cross-examining him and if it is found that the power of attorney holder has no personal knowledge about the facts and controversy, the evidentiary value of his deposition may be whittled down, but that has nothing to do with the competence of such a power of attorney holder to depose before a Court or a judicial Tribunal as a competent witness.
The Court relied on a judgment of the Madras High Court reported in 1966 AIR Mad 14. Thus, as per the judgment a general power of attorney holder of a party was not barred by Order 3, Rule 2(a) of the Code 1908, to give evidence on behalf of that party. Similarly in a judgment of this Court ini the matter of Shiv Narayan Soni v. Smt. Parvati Bai Meshram, 1997 (1) Vidhi Bhasvar 280(supra), Hon''ble Shri D.M. Dhamadhikari, J (as His Lordship then was) has held that in a case for eviction u/s 23-A(a) of the Act the landlady herself was not required to prove bona fide need and this could be deposed by her holder of power of attorney.
The principle enunciated ii the aforesaid judgments has also been espoused by a number of other judgments of this Court reported as : (1) Kaluram v. Gendalal, 1995 (II) MPWN 43 at 59. It appears that the Court did not agree with a judgment of the Privy Council with contrary view reported as AIR 1938 40 (Privy Council) (2) Kishore Kumar Sharma (Dr.) v. Smt. Ram Dulari, 1997(II) MPJRSN 33 . This case is based on a judgment of Hon''ble the Apex Court reported as Purushottam Umedbhai and Co. Vs. Manilal and Sons, and also on the judgments of the High Courts, namely (i) Swaran Lata v. Dev Kumar, (1991) 12 Punjab Legal Reports and Statutes 682, (ii) Anil Jain v. Amar Nath, 1990(7) Punjab Legal Reports and Statutes 178 and (iii) Tulsiram v. Bank of Maharashtra, 1985 MPWN 254 (3) Dharam Veer Sharma v. Bhagwati Prasad, 1998(I) MPJR 392 . In this case also the judgment of Hon''ble the Apex Court in Purushottam Umedbhai and Co.''s case (supra) has been relied upon and (4) Virendra Kasliang Sharma Vs. Smt. Ramkatoridevi,
On the basis of above principle of law, facts and circumstances of the case, objection raised by learned senior counsel about the proprietary and legality of order passed by the authority are not maintainable. Consequently, I do not find any merit in the revision. It is dismissed without any order of cost.
The Andhra Pradesh High Court in Vedpal and others versus Shakuntala @ Aruna, 2005(2) RLR 270 has held that merely because the landlady in the 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. The learned single Judge has held as under (paras 7, 27 to 36):-
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 himself and examined her husband as an agent with the support of the deed of the power of attorney and thirdly the aspect of bonafide requirement, as accepted by the lower appellate Court, is not established by the landlord.
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.
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 :
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.
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 u/s 4 of the Evidence Act, which is thus:
"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."
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.
Further, Section 120 of the Indian Evidence Act, which is necessary for ready reference, reads thus:
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.
The provisions of the abovesaid Section permit 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.
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 Chinnanna Vs. Bandari Pedda Bhumanna and Others,
The relevant portion, at paragraph Nos. 5 and 15, in the said judgment of 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 ''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 very wide 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 u/s 120 thereof providing that in any civil proceedings the husband or wife or 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 Kanadapudi Bharathy, Gudivada and another Vs. Authority Under Section of A.P.S.E. Act-cum-Labour Officer, Machilipatnam and another, 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.
From a reading of the said judgment, it cold 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.
In other words, the Court shall not reject in toto the evidentiary value of the agent who in normal 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.
The Madhya Pradesh High Court again in Sujata Sarkar Versus Anil Kumar Duttani, Madhya Pradesh High Court, 2009(1) RCR 568 has held that when the landlady did not examine herself in support of claim on account of old age and ill health but she brought oral and documentary evidence to prove bonafide requirement, her non-examination was not fatal and no adverse inference could be drawn. The learned single Judge has held as under (para 10):-
In the instant case, the evidence that the appellant/plaintiff was required to adduce in support of her claim was in respect of bona fide requirement of the accommodation for the business of her son. That evidence has been brought on record extensively through the oral and documentary evidence and, therefore, there is no withholding of evidence by the appellant/plaintiff. It is also clear that the appellant/plaintiff could not depose before the Court in person on account of her old age and ill health. That apart, from a perusal of the evidence on record it is apparent that the respondent/defendant had full opportunity to adduce all documentary evidence to refute the claim of the plaintiff and has extensively cross-examined all the witnesses in respect of the bona fide requirement of the appellant-plaintiff. In such circumstances, I am of the considered opinion that the nonexamination of the appellant/plaintiff is not fatal to the case of the appellant/plaintiff in the facts and circumstances existing in the present case and the conclusion recorded by the appellate court in this respect being erroneous, is unsustainable. The first substantial question of law is answered accordingly.
The Punjab and Haryana High Court in Bhagat Singh versus Jagdish Kaur, 2010(2) RCR 523 has held that the power of attorney holder as none other than son of landlady for whose personal need petition had been filed and he being best judge of his need was very well competent to depose on such an aspect of matter. The learned single Judge has held as under (para 7):-
The next contention which has been raised by the learned counsel for the petitioner is that the landlady did not depose before the Rent Controller and that the testimony of her power of attorney holder could not be construed to be a valid testimony to establish the need of the landlady. This contention too has to be rejected for the simple reason that the power of attorney holder was none other than the son of the landlady for whose personal need the petition had been filed and he being the best judge of his need was very well competent to depose on such an aspect of the matter.
Recently, their Lordships of Hon''ble Supreme Court in Man Kaur (dead) by LRS. Vs. Hartar Singh Sangha, have held that where all the affairs of a party are completely managed, transacted and looked after by an attorney (why may happen to be a close family member), it may be possible to accept the evidence of such attorney even with reference to bona fides or "readiness and willingness". Their Lordships have further held that the examples of such attorney-holders are a husband/wife exclusively managing the affairs or his/her spouse, a son/daughter exclusively managing the affairs of an old and infirm parent, a father/mother exclusively managing the affairs of a son/daughter living abroad. Their Lordships of the Hon''ble Supreme Court have held as under (paras 15 and 18):-
We may next refer to two decisions of this Court which considered the evidentiary value of the depositions of attorney-holders. This Court in Janki Vashdeo Bhojwani vs. Indusind Bank Ltd. held as follows: (SCC pp. 222-24, paras 13, 17-18 & 21)
Order 3, Rules 1 and 2 CPC, empowers the holder of power of attorney to "act" on behalf of the principal. In our view the word "acts" employed in Order 3, Rules 1 and 2 CPC, confines only in respect of "acts" done by the power of attorney holder in exercise of power granted by the instrument. The term "acts" would not include deposing in place and instead of the principal. In other words, if the power-of-attorney holder has rendered some "acts" in pursuance of power of attorney, he may depose for the principal in respect of such acts, but he cannot depose for the principal for the acts done by the principal and not by him. Similarly, he cannot depose for the principal in respect of the matter which only the principal can have a personal knowledge and in respect of which the principal is entitled to be cross-examined.
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17.....In the case of Shambhu Dutt Shastri v. State of Rajasthanit was held 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 witness box on behalf of himself. To appear in a witness box is altogether a different act. A general power of attorney holder cannot be allowed to appear as a witness on behalf of the plaintiff in the capacity of the plaintiff.
The aforesaid judgment was quoted with the approval in the case of Ram Prasad v. Hari. It was held that the word "acts" used in Rule 2 of Order 3 CPC 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 knowledge he has about the case he can state on oath but be cannot appear as a witness on behalf of the party in the capacity of that party. If the plaintiff is unable to appear in the court, a commission for recording his evidence may be issued under the relevant provisions of CPC.
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We hold that the view taken by the Rajasthan High Court in the case of Shambhu Dutt Shastri followed and reiterated in the case of Ramprasad is the correct view."
(Emphasis supplied)
We may now summarise for convenience, the position as to who should give evidence in regard to matters involving personal knowledge:
(a) An attorney-holder who has signed the plaint and instituted the suit, but has no personal knowledge of the transaction can only give formal evidence about the validity of the power of attorney and the filing of the suit.
(b) If the attorney-holder has done any act or handled any transactions, in pursuance of the power of attorney granted by the principal, he may be examined as a witness to prove those acts or transactions. If the attorney holder alone has personal knowledge of such acts and transactions and not the principal, the attorney-holder shall be examined, if those acts and transactions have to be proved.
(c) The attorney-holder cannot depose or give evidence in place of his principal for the acts done by the principal or transactions or dealings of the principal, of which principal alone has personal knowledge.
(d) Where the principal at no point of time had personally handled or dealt with or participated in the transaction and has no personal knowledge of the transaction, and where the entire transaction has been handled by an attorney-holder, necessarily the attorney holder alone can give evidence in regard to the transaction. This frequently happens in case of principals carrying on business through authorized managers/ attorney holders or persons residing abroad managing their affairs through their attorney- holders.
(e) Where the entire transaction has been conducted through a particular attorney holder, the principal has to examine that attorney-holder to prove the transaction, and not a different or subsequent attorney-holder.
(f) Where different attorney holders had dealt with the matter at different stages of the transaction, if evidence has to be led as to what transpired at those different stages, all the attorney-holders will have to be examined.
(g) Where the law requires or contemplated the plaintiff or other party to a proceeding, to establish or prove something with reference to his `state of mind'' or `conduct'', normally the person concerned alone has to give evidence and not an attorney holder. A landlord who seeks eviction of his tenant, on the ground of his `bona fide'' need and a purchaser seeking specific performance who has to show his `readiness and willingness'' fall under this category. There is however a recognized exception to this requirement. Where all the affairs of a party are completely managed, transacted and looked after by an attorney (who may happen to be a close family member), it may be possible to accept the evidence of such attorney even with reference to bona fides or `readiness and willingness''. Examples of such attorney holders are a husband/wife exclusively managing the affairs of his/her spouse, a son/daughter exclusively managing the affairs of an old and infirm parent, a father/mother exclusively managing the affairs of a son/daughter living abroad.
On the basis of law discussed hereinabove, there is no merit in the contention of Mr. K.D. Sood, learned counsel for the tenants that evidence of PW-3 could not be taken into consideration. PW-3 being the husband of landlady was competent to depose and his evidence is required to be taken into consideration. Thus, no adverse inference can be drawn against the landlady for not stepping in the witness box to support her case.
Accordingly, in view of the observations and discussion made hereinabove, the petition is allowed. The judgment dated 15th May, 2003 passed by the learned Appellate Authority (III), Kangra at Dharamshala in C.M. Appeal No.7-K of 1998 is set aside. The order of eviction passed by the learned Rent Controller (II), Kangra in Rent Case No.13/93/91, dated 6th July, 1998 is affirmed. However, in the interest of justice, in view of the judgment rendered by their Lordships of the Hon''ble Supreme Court in Harrington House School Vs. S.M. Ispahani and Another, it is directed that only on the valid revised/renewed building plan being sanctioned by the competent authority including Municipal Council, Kangra the order of eviction shall be available for execution. The valid revised/renewed sanctioned or approved building plan shall be produced before the Executing Court whereupon the Executing Court shall allow a reasonable time to the tenants for vacating the demised premises and delivering possession to the landlady. Till then the tenants shall remain liable to pay charges for use and occupation of the premises at the same rate at which they are being paid earlier. It is made clear that the tenants shall keep on paying the use and occupation charges to the landlady punctually on or before 7th day of every month. The pending application(s), if any, also stands disposed of. No costs.