Delhi District Court
Meena Sharma vs Raj Kumar on 14 February, 2024
IN THE COURT OF MS. RENU BHATNAGAR
PRINCIPAL DISTRICT & SESSIONS JUDGE/RENT
CONTROL TRIBUNAL, SHAHDARA DISTRICT
KARKARDOOMA COURTS, DELHI
RCT No.4/20
CNR No.DLSH01-001866-2020
MEENA SHARMA
W/o Sh. Trilok Nath Sharma
R/o House No.9/5982, Rajguru Gali
Gandhi Nagar, Subhash Mohalla,
Delhi-31.
.....APPELLANT
VERSUS
SH. RAJ KUMAR
S/o late Sh. Nand Lal
R/o House No.IX/6933,
Prem Gali, Near Ashok Gali
Gandhi Nagar, Delhi-31.
.....RESPONDENT
Date of Filing : 28.02.2020
Date of Arguments : 21.12.2023
Date of Judgment : 14.02.2024
JUDGMENT
Appeal Section 38 Of Delhi Rent Control Act, 1958.
1. The present appeal is filed under Section 38 of DRC Act against the order dated 14.02.2020, passed by Sh. Nipun Awasthi, the then Ld. SCJ/RC, Shahdara District, KKD Courts, Delhi, whereby the eviction petition filed by the appellant under Section 14 (1) (a) &
(d) of DRC Act was dismissed.
RCT No. 04/20 Meena Sharma Vs. Raj Kumar Page No.1 Of 16
2. Notice of the appeal was sent to the respondent, who was ordered to be served by way of substituted service by publication in newspaper, vide order dated 12.01.2021, passed by Sh. Yashwant Kumar, the then Ld. Principal District & Sessions Judge, Shahdara District, KKD Courts, Delhi. Despite service through publication, neither respondent appeared nor filed written arguments.
3. Before deciding this appeal, it is necessary to refer to the facts of the case. The appellant had filed an eviction petition in respect of one room on the first floor of the property bearing no. IX/6933, Prem Gali, near Ashok Gali, Gandhi Nagar, Delhi-31. The appellant claimed herself to be the lesser of the premises and the respondent to be her tenant at the rate of Rs. 400/- per month w.e.f 01.01.2015 on the basis of rent receipts, stating that no rent agreement was executed between the parties. The appellant claimed that the property was given on rent for residential purpose however, neither the respondent nor his family is residing there and the respondent has caused substantial damage to the property by keeping the same closed for more than 3 years before filing of the petition.
4. Before the trial court, the respondent was proceeded exparte and the case was decided exparte by Ld. SCJ-cum-RC on 14.02.2020, which judgment is under challenge in this appeal. Vide impugned judgment, Ld. Trial Court has dismissed the petition.
5. It is stated that the impugned order is bad in law as the Ld. Trial Court has failed to consider that PW-1 had stated that he knows the facts of this appeal as he was dealing with the respondent in respect of the creation and terms of tenancy as well as receipt of rent from the respondent month to month. Ld. Rent Controller has also failed to consider that apart from being the attorney, he is also a RCT No. 04/20 Meena Sharma Vs. Raj Kumar Page No.2 Of 16 witness for proving the documents which he tendered in his evidence. It is stated that the appellant has been suffering from various illness on account of which she has appointed her husband (PW-1) as attorney in this case. It was not considered by the Rent Contoller that PW-1 has been conversant with the facts of the case and therefore he is a competent witness.
6. It is further stated that the Ld. Rent Controller has erred in law in misconstruing the proposition of law, holding the attorney of the petitioner as an agent without considering that Section 202 of Contract Act has no application in this matter as this is not a case of principal and agent but is a case of guarantor of attorney to the guarantee, who is her husband. It is stated that the Ld. Rent Controller has failed to consider that the attorney appointed by the appellant is conversant with the facts of the case as he is not an outsider and his evidence can be considered in place of the appellant who is unable to contest her own case due to various ailments.
7. It is further stated that the Rent Controller has erred in law in not properly considering the evidence of PW-2 as per law as the court failed to appreciate that there is a typographical mistake in the affidavit of evidence of PW-2 as a shop has been mentioned in place of suit premises. The evidence of PW-2 was required to be considered in the light of evidence of PW-1, who has categorically stated that the demised premises was let out to the respondent for his residence as well as for his family members and the same has been lying locked for last more than three years as he has left the premises by locking the same and has been residing somewhere else without disclosing about his whereabouts to the appellant. The suit premises has been shown in the site plan EX.PW-1/2, which is room number RCT No. 04/20 Meena Sharma Vs. Raj Kumar Page No.3 Of 16 one on the first floor, whereas the shop could not have been situated on the first floor, which clearly establishes that there was a wrong typing of the shop everywhere in the affidavit of PW2. This is not such a mistake, which could not have been cured in view of the evidence of PW1 and his pleading more so when he was produced to prove the service of notice by way of affixation.
8. It is stated that the ground under Section 14 (1) (d) of DRC Act has been proved by PW-1 by his own evidence and documents. Hence, it is prayed that the impugned order be set aside. In support of his arguments, Ld. Counsel for appellant has relied upon following case laws:-
i) Man Kaur Vs. Hartar Singh Sangha (2010) 10 SCC.
ii) Radhey Shyam Vs. Raj Kumar CR No.1696 of 2008.
iii) Shanti Devi Agarwal Vs. V.H. Lulla, AIR 2004 MP
58.
Arguments of appellant.
9. Ld. Counsel for the appellant has also filed written arguments. It is argued that this ground has been assailed in Appeal that the attorney is the husband of appellant and besides being an husband, he has being a family member. Thus is not an outsider Power of Attorney has been proved as PW-3/1. On page 15 in paragraph 1, it has been stated that the appellant was unable to appear and conduct this case as she was confined to bed with various medical problem. On account of which, the attorney was executed by her in favour of her husband which is dated 28.01.2019 (it was executed and filed after filing the Eviction Petition on 17.11.2018. Now this Hon'ble Court may kindly see the tender evidence of this witness recorded on 15.01.2020. In the opening line, this witness has deposed that "he RCT No. 04/20 Meena Sharma Vs. Raj Kumar Page No.4 Of 16 knows the facts of this case as he was dealing with the respondent in respect of creation and terms of tenancy as well as receipt of rent from the respondent month to month" and he was proved counterfoil as Ex. PW-1/3 to Ex. PW1/7 which are all in the handwriting of attorney. So, this part of evidence and documents has not been considered b the Ld. Rent Controller, Delhi. The appellant also filed documents of her treatment and discharge from pages 16A to 16H. These are being the documents from the hospital ought to have been considered by the Rent Controller, Delhi.
10. Now turning to the question of law, the appellant refers the attention of this Hon'ble Court to the judgment of Punjab and Haryana Court High Court in case titled "Radhey Shyam versus Raj Kumar in Civil Revision No. 1696/2008 decided on 27.11.2009"
wherein their lordships has held as under:-
1. "A power of attorney is competent to depose only about the facts about which he has personal knowledge- He cannot depose about the facts which are exclusively in the knowledge of the party of whom he is examined in the court..."
2. " It is only when the party is ill, old or incapable of attending the Court personally, then he may be represented by his attorney to make a statement on his or her behalf."
In this case, attorney is the husband of the appellant and he was in the know of the fact was able to depose as mentioned above and secondly, the appellant was incapable of attending the Court personally due to her serious ailment and as such this judgment is wholly applicable to the facts of this case.
The attention of this Hon'ble Court is also drawn to the judgment of Hon'ble Supreme Court of India (2010) 10 Supreme Court Cases pages 512 onward. This Hon'ble Court may kindly refer sub-para (g) of page 513, a portion of which is reproduced as under:-
RCT No. 04/20 Meena Sharma Vs. Raj Kumar Page No.5 Of 16 "...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 bonafides or "readiness and willingness". Examples of such attorney-holders are 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..."
This judgment is also applicable to the facts of this case. So, the Court below ought to have called upon the counsel of the appellant to argue on this question of law. Having not done so, there occurred a patent illegality in the impugned order.
Conclusion
11. I have heard the submissions of the counsels of the appellant and perused the record as well as the impunged order passed by trial court. Ld. Trial court has dismissed the eviction petition filed by the appellant U/s. 14 (1) (a) and (d) of DRC Act mainly on the ground that appellant did not examine herself as a witness in the case and rather her husband has deposed for her as an agent and he can do acts for its principal in proceedings before a court where his principal is a party but this does not mean/include deposing for his principal and thus his deposition is inadmissible and appellant has failed to prove its case under Section 14(1)(a) DRC Act.
12. In the present case, Sh. Trilok Nath Sharma, husband of appellant has appeared as a witness on the basis of power of attorney Ex. PW1/1 which was given to him by the appellant mentioning that she is unable to appear and conduct the case as she was confined to bed with her various medical problems and thereby authorized her attorney to sign reply, affidavit of evidence, to file documents, to give evidence, to produce witnesses and to make any statement and RCT No. 04/20 Meena Sharma Vs. Raj Kumar Page No.6 Of 16 to appear on her behalf in the case and to defend and answer all questions. The said power of attorney is exhibited as Ex. PW1/1 before the trial court.
13. Now the question to be decided in this case is whether a power of attorney holder can appear and depose on behalf of principal and what will be the evidentiary value of his deposition in a case.
14. Before discussing the law on the point, it is relevant to mention that in the trial court also, the respondent was ex parte. Ld. Counsel for appellant has argued and rightly so that this is not a case of principal and agent, as presumed by trial court but a case of granter of attorney to the grantee, who is her husband.
15. In the case of Man Kaur (Dead) By LRs Vs. Hartar Singh Sangha, Civil Appeal Nos. 147-148 of 2001, (though not referred to by counsel of appellant), Hon'ble Apex Court has beautifully summed up the law relating to the evidentiary value of the evidence of power of attorney. It is held:-
"In Vidhyadhar v. Manikrao - 1999 (3) SCC 573, this Court reiterated the following well recognized legal position:
"Where a party to the suit does not appear in the witness-box and state 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."
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. -2005 (2) SCC 217, held as follows:
"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 and2 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 RCT No. 04/20 Meena Sharma Vs. Raj Kumar Page No.7 Of 16 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.
....In the case of Shambhu Dutt Shastri v. State of Rajasthan, 1986 2 WLN 713 (Raj) it 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 Narain - AIR 1998 Raj 185. 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 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 the CPC. ....
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."
In Shankar Finance & Investments vs. State of AP - (2008) 8 SCC 536, this Court explained in what circumstances, the evidence of an attorney holder would be relevant, while dealing with a complaint under section 138 of the Negotiable Instruments Act, 1881 signed by the attorney holder of the payee. This Court held :
"A power of attorney holder of the complainant, who does not have personal knowledge, cannot be examined. But where the attorney holder of the complainant is in charge of the business of the complainant and the attorney holder alone is personally aware of the transactions, and the complaint is signed by the attorney holder on behalf of the complainant payee, there is no reason why the attorney holder cannot be examined as the complainant.....In regard to business transactions of companies, partnerships or proprietary concerns, many a time the authorized agent or attorney holder may be the only person having personal knowledge of the particular transaction; and if the authorized agent or attorney-holder has signed the complaint, it will be absurd to say that he should not be RCT No. 04/20 Meena Sharma Vs. Raj Kumar Page No.8 Of 16 examined under section 200of the Code, and only the Secretary of the company or the partner of the firm or the proprietor of a concern, who did not have personal knowledge of the transaction,should be examined."
11. To succeed in a suit for specific performance, the plaintiff has to prove: (a) that a valid agreement of sale was entered by the defendant in his favour and the terms thereof; (b) that the defendant committed breach of the contract; and (c) that he was always ready and willing to perform his part of the obligations in terms of the contract. If a plaintiff has to prove that he was always ready and willing to perform his part of the contract, that is, to perform his obligations in terms of the contract,necessarily he should step into the witness box and give evidence that he has all along been ready and willing to perform his part of the contract and subject himself to cross examination on that issue. A plaintiff cannot obviously examine in his place, his attorney holder who did not have personal knowledge either of the transaction or of his readiness and willingness. Readiness and willingness refer to the state of mind and conduct of the purchaser, as also his capacity and preparedness on the other. One without the other is not sufficient. Therefore a third party who has no personal knowledge cannot give evidence about such readiness and willingness, even if he is an attorney holder of the person concerned.
12. 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 RCT No. 04/20 Meena Sharma Vs. Raj Kumar Page No.9 Of 16 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 bonafides or `readiness and willingness'.
Examples of such attorney holders are a husband/wife exclusively managing the affairs of his/her spouse, as on/daughter exclusively managing the affairs of an old and infirm parent, a father/mother exclusively managing the affairs of a son/daughter living abroad.".
16. In a similar rent matter u/s 14(1)(e) of DRC Act, titled as Raj Bahadur And Ors. Vs. Sushila Devi Nigam & Ors, 19(1981) DLT407 (not referred to or relied by the appellant), where husband of a landlady has appeared as a witness, Hon'ble Delhi High Court has observed :-
"(8) Next it is contended on behalf of the appellants that landlady Smt. Sushila Devi Nigam did not appear as a witness and therefore no order of eviction can be passed. I may mention that the husband of the landlady appeared .s a witness. He was her general attorney. He has deposed about all the facts necessary for the grant of relief to the landlady. The landlady is to prove the facts in order to obtain an order of eviction. The facts may be proved by her own statement or by the statement of her witnesses or by admission of the tenants. In the present case the ownership of the landlady, the purpose of letting of the suit premises is not now in dispute. As regards the family members and the accommodation available on record there is ample evidence led by the landlady consisting of her husband and RCT No. 04/20 Meena Sharma Vs. Raj Kumar Page No.10 Of 16 others and also admission on behalf of the appellants, in view of the overwhelming evidence in support of the facts required to be proved to obtain an order of eviction it is not mandatory that the landlady should appear as a witness. At best it can be said that the landlady took a risk by not appearing as a witness but the landlady cannot be non-suited simply on the ground that she has not appeared as a witness. The evidence of her husband is sufficient to entitle her to an order of eviction. Learned counsel for the appellants has referred to NanalalGoverdhandas & Co. & others v. Smt. Sauratbai Lilachand Shah, AIR. 1980 Bombay , a case under the Bombay Rents, Hotel and Lodging House Rates Control Act, 1947 wherein the landlady was not examined in support of her case and her suit on ground of bona fide requirement was dismissed. With respect to the learned Judge deciding the Bombay case it seems to me that the facts in every case differ. If there is sufficient evidence on record, a plaintiff cannot be non-suited simply on the ground that he has not appeared as a witness. Thus I am of the view that in the facts and circumstances of the present case it was not necessary for the respondent-landlady to appear as a witness and her failure to appear as such does not disentitle her to obtain an order of eviction against the appellants. A learned Judge of this court in Khurshid Haider v. Zubeda Begum. 1979 Raj. Law Reporter 161 has held that for proving the ground of personal requirement under Section14(1)(e) of the Act it was not essential that the petitioner-landlady must herself depose".
17. Hon'ble Delhi High Court has quoted the above mentioned judgment of Apex Court in Man Kaur (supra) in a rent case filed on the ground of sub letting, titled as Dr. Mrs. V.V. Gujral & Ors Vs. Pushpa Sharma & Anr, decided on 05.07.2011, in RFA No.82/2008, wherein court held that statement of PW-1/attorney can not be thrown out on the ground of his competency in view of the principles laid down in Man Kaur (supra).
18. In another civil case titled as Durga Das Banka Vs. Ajit Singh & Ors, RSA No.149/2011, decided on 01.11.2011 by Hon'ble Delhi High Court, the court had distinguished the judgment of Janki Vashdeo Bhojwani & Anr Vs. Indusind Bank Ltd. & Ors. 2005 1 AD (SC) 168. In the said case the appellant is the son of original plaintiff but before the trial court, his father had been appearing RCT No. 04/20 Meena Sharma Vs. Raj Kumar Page No.11 Of 16 throughout and even he filed his affidavit in evidence, entered into the witness box for cross-examination, but because of old age and because he suffered a paralytic stroke, he could not appear in the matter further and in such extenuating circumstances, the appellant being his son filed his power of attorney and affidavit of evidence before the trial court.
19. In the aforesaid case, the Hon'ble Delhi High Court has observed as under:-
"6. The appeal is taken up for final hearing at the stage of admission itself.
7. The substantial question of law which arises in the present case is as to "Whether an attorney holder can be authorized to depose on behalf of principal when the principal due to old age and serious illness cannot depose himself". It is not in dispute between the parties that Mr. Vipin Banka is the son of the appellant and the appellant is 85 years old and suffering from serious illness. It is also not in dispute that the appellant himself had filed the suit and in fact had appeared in the court and had also filed his own affidavit in evidence and had entered the witness box for his cross-examination and it is at that stage due to his serious illness he could not appear for his further cross- examination and then son of the appellant had appeared in the witness box and deposed on behalf of his father. In my considered view, as a special power of attorney holder, Mr. Vipin Banka was fully authorized to depose in place of his father. Once such an authority has been given by the father to his son to depose on his behalf, can it be said that despite the said authority being given the son would not be competent to depose on behalf of his father? Not disputing the legal position that the facts which are within the knowledge of the plaintiff can only be deposed by the plaintiff alone and not by his attorney holder, but the moot question which arises in the present case is where the father because of his old age and illness gives an authority to his son or any of his family member to depose on his behalf, whether deposition of such an attorney holder can be ignored on the ground that the plaintiff himself did not appear in the witness box.? The answer to this is in the judgment of this court relied upon by the counsel for the plaintiff in Om Prakash Vs. Inder Kaur, 156(2009) DLT 292 wherein it was held that the evidence given by a witness cannot be rejected on the ground that he is a father or a relative, nor any adverse inference can be drawn against the plaintiff on the ground that he had not appeared his RCT No. 04/20 Meena Sharma Vs. Raj Kumar Page No.12 Of 16 own witness in the case as the plaintiff is master of his case and he can prove his case without appearing in the witness box.
8. The case of Janki Vashdeo (Supra) on which reliance was placed by both the courts below reaffirms the well settled law that the power of attorney holder cannot depose for the principal in respect of the matter which only the principal can have a personal knowledge of. However the said legal position is not attracted to the facts of the case at hand. The question that arises for consideration is that whether what was deposed by the attorney holder, the son of the plaintiff appellant herein, was something that the principal had a personal knowledge of or was relating to some act done by the plaintiff which only he was privy to. The answer to this question is an emphatic no. As is evident from the facts of the case at hand, the suit was instituted to get the order of the Hon'ble Division Bench of this Court enforced where the undertaking was given by the father of the appellant not to raise any unauthorized construction and to remove the existing construction which was unauthorized in the said order. Can it be said that the order of the court is something that the principal alone would have personal knowledge of? The order was of the court and the attorney deposing regarding the same is not something to be in his personal knowledge but a fact which has been proved on record. Here it would be relevant to refer to the judgment of this court in the case of Capt.Praveen Davar(Retd) & Anr. vs. Harvansh Kumari & Ors.
2010(119)DRJ560 wherein the court while distinguishing the judgment in the case of Janki Vashdeo Bhijwani held as under:
"16. An attempt was made by Mr. Singla, the learned senior counsel for the appellants to contend that none of the plaintiffs having entered into the witness box to assert their title, the evidence of PW-1 Shri Bihari Lal Walia, the Attorney of the respondents, could be of no assistance to the respondents. Relying upon the judgment of the Hon'ble Supreme Court in Janki Vashdeo Bhojwani and Anr. v. Indusind Bank Ltd. and Ors. : AIR 2005 SC 439, the learned senior counsel for the appellants contended that the word "acts", employed in Order 3 Rules 1 & 2 CPC, was confined to acts done by the power of attorney holder in exercise of powers granted by the instrument and was not inclusive of deposing in place and instead of the principal in respect of the matters in which the acts were done by the principal and not by him, and in which only the principal could have a personal knowledge. Apart from the fact that this point was not urged before the learned trial court and has been taken up for the first time in this appeal, there is, even otherwise, in my view, no merit in the same. The provisions of Order 3 Rules 1 and 2 CPC, as is clear from a reading thereof, contain no impediment to the Attorney deposing in place of and instead of the landlord. In Smt. Ramkubai (since deceased) by Lrs and Ors. v. Hajarimal Dhokalchand Chandak and Ors. : AIR 1999 SC RCT No. 04/20 Meena Sharma Vs. Raj Kumar Page No.13 Of 16 3089, the Supreme Court while dealing with a case where the landlady did not appear in the witness box herself, but instead produced her son, who was also her G.P.A. holder, held that it was not important or essential for the landlord/landlady to enter the witness box to support the case. [See also: Om Prakash v. Inder Kaur 2009 107 DRJ 263 and Satnam Channan v. Darshan Singh 2006(2) RCR (Civil) 615 P and H]. 17. The judgment in Janki Vashdeo Bhojwani's case (supra) relied upon by the learned senior counsel for the appellants also does not come to the aid of the appellants and is clearly distinguishable. It has been held in the said case that if the power of attorney renders some acts in pursuance of the 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. Further, it has been held that he cannot depose for the principal in respect of the matters, in which only the principal can have a personal knowledge and in respect of which the principal is entitled to be cross-examined. It nowhere states that even though the facts deposed are not facts within the personal knowledge of the principal alone, the power of attorney holder cannot depose on behalf of the principal.
(emphasis supplied)"
Hence,in my considered view the learned courts below have misinterpreted the import of the judgment of the Apex Court and applied it to the facts of the case at hand. It would also be pertinent to mention here the judgment of this court in the case of Mr.Vinay Jude Dias vs. Ms.Renajeet Kaur AIR 2009 Delhi 70 wherein the court while dealing with the deposition of the attorney holder with regard to the fact that whether the parties before the court were married or not held as under:
"Facts which are within the special knowledge of principal and are not in the knowledge of attorney can only be deposed by the principal. Whether the parties were married on a particular day, is not a private act of the parties. Marriage is normally a public act in this country and evidence can be given by anyone who has knowledge of the fact. Whether the parties are living separate or not is also known to other people associated with the parties and is not something secret. Similarly, for how long parties were living separate can be deposed in the Court by any person who is aware of the facts. If an attorney aware of these facts and can answer the questions of the Court, the attorney cannot be told that he is not a competent witness or his statement would not be recorded. Similarly an attorney, on the basis of instructions/directions given to him, can answer the queries, if there was any possibility of parties patching up and living together or the marriage has broken down irretrievably. An attorney has to be allowed to appear in the witness box and make statement. The Court may reject that part of his statement which is based on hearsay or which he has no personal RCT No. 04/20 Meena Sharma Vs. Raj Kumar Page No.14 Of 16 knowledge. But he cannot be prevented from appearing in the witness box and deposing and answering the queries. Same is the import of judgment of Supreme Court in Janaki Vasudeo Bhojwani (supra) wherein Supreme Court had not debarred an attorney from appearing in the witness box but the Supreme Court has stated the facts which are only in the knowledge of the principal, about those facts attorney cannot testify in the Court."
9. Hence, any act which is not a private act or which is not something the principal alone can have personal knowledge of can be deposed by the attorney holder and taken in evidence while deciding the issues. There is no bar hence under the Code or otherwise where the attorney holder is deposing regarding a fact which is proved on record. The learned trial court was required to consider the documentary evidence instead of giving any weightage to the oral evidence led by the son of the appellant. The copy of the said order was placed and proved on record by the son of the appellant. Perusal of the said order would clearly show that a clear undertaking was given by the father of the defendant that he would not raise any unauthorized construction and that was the only relevant factor of consideration.
20. Accordingly, in view of the settled proposition of law as settled in the case of Man Kaur Vs. Hartar Singh Sangha (supra) of Hon'ble Apex Court, the appellant was competent to appear before the trial court on behalf of principal / his wife.
21. Since the trial court has dismissed the petition only on the ground that PW-1 is not competent to depose being the attorney of the appellant and since his testimony was not being considered on merits qua Section 14 (1) (a) and (d) of DRC Act, the matter is remanded back to the trial court to decide the case after considering the evidence of PW-1 on merits.
22. Further qua PW-2 it is stated by counsel for the appellant that in his affidavit instead of word 'house', word 'shop' is mentioned which is a typographical error and further the said witness is only in respect of affixation of the notice whereas the ground under Section 14 (1) (d) is also proved from the un-rebutted testimony of PW-1.
RCT No. 04/20 Meena Sharma Vs. Raj Kumar Page No.15 Of 16 The said fact shall also be considered by the trial court when it will consider the testimony of PW-1 on merits.
23. Accordingly, the impugned order dated 14.02.2020 is set aside and the matter is remanded back to Ld. SCJ-cum-RC, KKD Courts, Delhi, to to decide the case after considering the evidence of PW-1 on merits, afresh, without being influenced by any observation made in this judgment.
24. The parties are directed to appear before the Ld. Trial Court on 15.03.2024. TCR be sent back alongwith copy of this order. Appeal file be consigned to record room.
ANNOUNCED IN THE OPEN COURT On 14 th February, 2024 (RENU BHATNAGAR) PRINCIPAL DISTRICT & SESSIONS JUDGE/ RENT CONTROL TRIBUNAL SHAHDARA DISTRICT, KKD COURTS: DELHI RCT No. 04/20 Meena Sharma Vs. Raj Kumar Page No.16 Of 16