Punjab-Haryana High Court
Hardev Singh vs Surjit Kaur on 27 May, 2008
Equivalent citations: (2008)151PLR477
Author: Ranjit Singh
Bench: Ranjit Singh
JUDGMENT Ranjit Singh, J.
1. The petitioner has been directed to hand over the vacant possession of the tenanted premises, i.e., house to the respondent within a period of three months from the date of the order, which is dated 4.12.2007. The respondent had filed the petition for eviction of the petitioner under Section 13-B of the East Punjab Urban Rent Restriction Act, 1949 claiming herself to be NRI and owner/landlady of House No. 7 (New No. 165) Ward No. 9, situated in Krishan Street, Doraha Mandi, Tehsil Payal, District Ludhiana. She had prayed for eviction of the petitioner, who is a tenant in the said premises. Respondent has statedly purchased the said house vide registered sale deed dated 22.10.1990, where respondent is tenant in one room, verandah, kitchen, parchhati, toilet and open space, situated on the ground floor. The prayer made by the respondent was that she would need this accommodation for her bonafide requirement as she is wanting to shift and settle in India from Canada where she is presently residing. Plea further is that the property in dispute is unfit and unsafe for human habitation and immediately after vacation, the respondent intends to re-construct the same and then use it for her own occupation.
2. Upon notice, the petitioner appeared and filed response contesting the plea raised by the respondent. Number of other pleas are also raised in regard to the respondent having concealed the fact that she owned and possessed three houses other than the one in dispute. It is pleaded that she had approached the court with oblique motive as otherwise she and her children are well settled abroad and have no intention to return to India.
3. This petition was filed through Karnail Singh, attorney of the petitioner. He only appeared on behalf of the petitioner as PW-1. Kamal Krishan, Harpreet Singh and Nirmal Singh were examined as PW-2, PW-3 and PW-4. Relying upon the evidence of the attorney, the Rent Controller has found that the petitioner was able to establish the dire need of the rented premises for personal use by the respondent. It is this aspect which is under serious challenge in the present petition filed by the petitioner.
4. Learned counsel appearing for the petitioner would say that the respondent-landlady has not chosen to even come back and appear as a witness and to face cross-examination to test the veracity of her version that she needed this premises for personal use. As per the counsel, the attorney would not be competent to depose about the fact of personal use and occupation of this premises by the respondent as these facts would be in her personal knowledge. To substantiate his plea, the counsel for the petitioner has referred to the cross-examination of PW-1 (attorney) to indicate that he was not in the knowledge of large number of substantial facts in regard to the other properties owned by the respondent and remained evasive and denied all those questions by saying that he was not aware of those facts. It is on this basis, the counsel contends that petitioner has been deprived of the right and opportunity to prove that the demised premises is not needed for use by the respondent or at any rate the respondent was not able to satisfy the need for use and occupation of this premises.
5. It is not disputed that respondent has not personally appeared to depose about her need to use the demised premises for her own occupation. No doubt, that the attorney can appear as a witness on behalf of the principal and depose about the facts which are in his personal knowledge or about those acts which he had performed as an attorney on behalf of the principal, but attorney cannot appear as a witness to depose about the facts which are in the personal knowledge of the principal. In this regard, reference can be made to the case of Janki Vashdeo Bhojwanti and Anr. v. Indusing Bank Ltd. and Ors. (2005-2)140 P.L.R. 1 (S.C.), Hon'ble Supreme Court has held that the general power of attorney cannot be allowed to appear as a witness on behalf of plaintiff in the capacity of a plaintiff. This proposition would not be in dispute that the attorney cannot appear on behalf of the principal, but the ratio of law laid down in the case of Janki Vashdeo (supra), he can depose only those facts, which are hi his personal knowledge and about those acts, which he has taken as an attorney of the principal.
6. The question which would require to be seen in the present case is whether the attorney would be in a competent position to depose about the personal and bonafide need of the respondent without she appearing in the witness box or not. Whatever attorney would state in this regard would be the one which would be conveyed or disclosed to him by the principal, whose attorney he is. In a way, thus, he would be giving derivative evidence in regard to the fact that respondent was requiring to come back to India and thus wanted to settle permanently here. This is not something which can be attributed to his own knowledge, which he can affirm and is bound to be something which he has learnt from the respondent. It may not be hear-say as to what has been told to him by the respondent, but would certainly be a hear-say in regard to the truthfulness of the fact regarding the intention/requirement to return on the pan of the principal. Thus, the attorney would be only competent to depose that the respondent was wanting to shift to India and thus need this premises as has been conveyed to him, but would be in a no position to vouchsafe if she really would have intention/requirement to return. This aspect validly could be proved by the respondent herself and to ascertain the authenticity thereof, she would be required to face the cross-examine by the opposite side. The ratio laid down in Janki Vashdeo (supra), would also be to this effect. The relevant observations of the Hon'ble Supreme Court are as under:
Order III, 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 III 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 to 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 principal is entitled to be cross-examined.
Reference can also be made to Vidhyadhar v. Manikrao and Anr. , where it is observed:
where a party to the suit does not appear in the witness box and states his own case on oath and does not offer himself to be cross-examined by the other side, a presumption would arise that the case set up by him is not correct.
In the case of Janki Vashdeo Bhojwani (supra), the Hon'ble Supreme Court disapproved the contrary view taken by Bombay High Court in the case of Humberto Luis and Anr. v. Floriano Armando Luis and Anr. 2002(2) Bom.C.R. 754 and approved the ratio laid down by Rajasthan High Court in the case of Shambhu Dutt Shastri v. State of Rajasthan 1986(2) W.L.L. 713 and Ram Prasad v. Hari Narain . In Shambhu Dutt Shastri's case (supra), it is held that general power of attorney holder can appear, plead and act on behalf of the party but can not become a witness on behalf of the party and can only appear in his own capacity. Same view is reiterated in Ram Parsad's case (supra), where it is said:
It was held that the word "acts" used in Rule 2 of Order III of the 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 he 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 the CPC.
7. I am, thus, of the view that the requirement that the respondent needs this property for her personal use has not been properly established in the absence of her examination. On this ground, the impugned order cannot be sustained. It is, however, made clear that the other findings returned by the court were not challenged before me and are otherwise justified and would not call for any interference. The case is accordingly remitted back to the Rent Controller for giving opportunity to the respondent to appear before the court and depose about her personal need for occupying the demised premises. The Rent Controller thereafter after grant of opportunity, if any, due to the petitioner would decide the case afresh in accordance with law. Since the petition has been filed under Section 13-B of the Act, the court of Rent Controller would decide the same on priority and preferably within a period of three months from the date of receipt of the copy of this order. The Rent Controller would not be permitted to re-open the other issues which have been adjudicated and decided.
The present revision petition is accordingly disposed of.