Delhi District Court
S. Bhupinder Singh vs . Principal Green Field School & Ors. on 30 July, 2018
S. Bhupinder Singh Vs. Principal Green Field School & Ors.
IN THE COURT OF MS TYAGITA SINGH
SENIOR CIVIL JUDGECUMRENT CONTROLLER (SOUTH),
SAKET COURTS, NEW DELHI
RCA SCJ 5748/16
CNR NO.: DLST030015922016
IN THE MATTER OF:
S. BHUPINDER SINGH
S/O LATE MALKLAT SINGH
THROUGH ATTORNEY
SH. F.S. GREWAL
LAXMI TAXI SERVICE
SAFDARJUNG ENCLAVE,
NEAR GREEN FILED SCHOOL
NEW DELHI110029 ....APPELLANT
VERSUS
1. GREEN FILED SCHOOL
THROUGH ITS PRINCIPAL
SAFDARJUNG ENCLAVE,
NEW DELHI110029
2. THE DEPUTY COMMISSIONER OF POLICE
(TRAFFIC), POLICE HEAD QUARTERS,ITO, NEW DELHI
3. MUNICIPAL CORPORATION OF DELHI
THROUGH ITS COMMISSIONER
TOWN HALL, CHANDNI CHOWK,
DELHI110006 ....RESPONDENTS
RCA SCJ 5748/16 Page 1 of 14
S. Bhupinder Singh Vs. Principal Green Field School & Ors.
DATE OF INSTITUTION :05.09.2016 DATE OF RESERVING JUDGMENT :24.07.2018 DATE OF PRONOUNCEMENT :30.07.2018 DECISION :DISMISSED Advocates appearing in the case:
Sh. G.S. Narula, Ld. Counsel for appellant.
Sh. Vishwa Bhushan Arya, Ld. Counsel for respondent no.1. Ms. Dipika Jain, Ld. Counsel for defendant no.3/MCD.
J U D G M E N T
1. Vide this judgment, I shall decide regular civil appeal filed by appellants/ plaintiffs Sardar Bhupinder Singh against respondents/ defendants Green Field School, Deputy Commissioner of Police and Municipal Corporation of Delhi. In this appeal, appellant has challenged the judgment and decree of Ld. Civil Judge06, Central Tis Hazari Courts, dated 19.07.2016 vide which the suit of appellant/plaintiff for permanent injunction was dismissed.
2. The crux of the grounds of appeal are as follows:
2.1. The appellant has challenged the judgment of Ld. Trial Court on the ground that the Ld. Trial Court has not appreciated the facts and circumstances of the case properly and has not RCA SCJ 5748/16 Page 2 of 14 S. Bhupinder Singh Vs. Principal Green Field School & Ors.
taken into consideration all the documentary evidence filed on record by the appellant and has decided the case against the appellant despite the fact that defendants/ respondents did not bring any substantial evidence to rebut the averments and allegations of plaintiff.
2.2. That the Ld. Trial Court failed to take into consideration the detailed evidence adduced by fatherinlaw/ power of attorney of plaintiff and dismissed the suit only on the ground that power of attorney has no right to depose on behalf of the plaintiff and his evidence is merely heresay evidence.
3. Respondent no.1 and 2 have filed reply to the appeal stating that the judgment has been rightly passed by the Ld. Trial Court, after duly appreciating the facts and circumstances of the case, and it does not warrant any interference in appeal.
4. Detailed arguments on behalf of all the parties were heard on last date and case was fixed for order for today.
5. Ld. Counsel for appellant has relied upon following judgments:
(i) 2007 (6) Kar. L.J. 286, titled "Bhimappa & Others Vs. RCA SCJ 5748/16 Page 3 of 14 S. Bhupinder Singh Vs. Principal Green Field School & Ors.
Allisab & Another, in Regular Second Appeal No. 733 of 2005, decided on 27.02.2006.
(ii) 2017 3 ADJ 769; 2017 0 Supreme (All) 163; Allahabad High Court, titled "Radha Sharan Dubey & Another Vs. Ram Niwas & Others.", in First Appeal Nos. 55 of 2008, 448, 472 of 2007, decided on 06.03.2017.
6. Ld. Counsel for respondent no.1 has relied upon following judgment:
(i) 2005 (3) Supreme 275, titled "Janki Vashdeo Bhojwani & Anr. Vs. Indusind Bank Ltd. & Ors." in Civil Appeal No. 6790 of 2003, decided on 06.12.2004.
7. The judgment of Ld. Trial Court dated 19.07.2016 perused, in which issue no.1 in respect of jurisdiction of the Court had been decided in favour of plaintiff but issue no.2 in respect of relief of permanent injunction was decided against plaintiff and suit of plaintiff was dismissed.
8. For purpose of appeal, only discussion upon issue no.2 is necessary. Perusal of impugned judgment reveals that Ld. Trial Court has discussed issue no.2 in respect of permanent injunction in detail from para 15 to para 24 of the impugned judgment and RCA SCJ 5748/16 Page 4 of 14 S. Bhupinder Singh Vs. Principal Green Field School & Ors.
after appreciation of all the facts and circumstances, Ld. Trial Court came to the conclusion that evidence adduced by plaintiff is not sufficient for grant of relief of permanent injunction. Therefore, the suit of plaintiff was dismissed. It is pertinent to mention herein that Ld. Trial Court has relied upon judgment of Hon'ble Supreme Court titled as "Man Kaur (dead) by LR's Vs. Hartar Singh Sanga (2010) 10 SCC 512", and arrived at the conclusion that the affidavit of evidence tendered by Sh. F.S. Grewal, power of attorney holder of plaintiff Sh. Bhupinder Singh is not sufficient for proving the case of permanent injunction.
9. Ld. Trial Court has discussed the other facts like area which was specifically alloted to plaintiff by defendants no. 2 and 3 and the fact regarding names of persons, who threatened the plaintiff to dispossess him from the alloted area of the Laxmi Taxi Stand.
10. In this regard, it is necessary to peruse the documents filed and exhibited on record by appellant/ plaintiff during trial. The Trial Court file has been called for true appreciation of the facts and circumstances of the case. Perusal of Trial Court file reveals that one copy of site plan has been exhibited as Ex. PW1/2 by RCA SCJ 5748/16 Page 5 of 14 S. Bhupinder Singh Vs. Principal Green Field School & Ors.
the SPA of plaintiff in the suit. Perusal of the said copy of site plan shows the area of Laxmi Taxi Service as 10' X 35'. However, there is no official document on record to prove that this area of 10' X 35' had been alloted either by defendant no.2/Traffic Police or by defendant no.3/MCD to the plaintiff.
11. Perusal of copy of document Ex. PW1/3, which is copy of letter allegedly dated 03.10.1989, written by Incharge, Computer Centre, for Additional Deputy Commissioner of Police (Traffic) to Sh. Bhupinder Singh, Laxmi Taxi Service, reflects that it is mentioned that Taxi Stand No. 6804 had been allotted to Sh. Bhupinder Singh but he was required to submit certain documents including site plan. There are certain other documents on record like tehbazari receipts and No Objection Certificate of the Administrative Officer, South Zone, MCD dated 12.06.1991 vide which No Objection was given to M/s. Laxmi Taxi Services for installation of new electricity connection. Thereafter, vide letter dated 23.01.1996, copy of which is Ex. PW1/8, the proprietor of M/s. Laxmi Taxi Stand was requested to attend the office of the Deputy Commissioner of Police (Traffic) in connection with cancellation/shifting of the taxi stand.
RCA SCJ 5748/16 Page 6 of 14S. Bhupinder Singh Vs. Principal Green Field School & Ors.
12. Perusal of document Ex. PW1/9 reflects that the ACP (Traffic) had given report that one vehicle was found parked in the General Taxi Stand namely, Laxmi Taxi Service, Safdarjung Enclave, which was challaned by the Traffic Inspector and proceedings for denotification of General Taxi Stand had been initiated. Perusal of the said report reveals that the proprietor of General Taxi Stand had breached the terms and conditions of allotment of the taxi stand.
13. Perusal of photographs exhibited as Ex. PW1/15 and Ex. PW1/16 by plaintiff himself in the Ld. Trial Court reveals that temporary sheds had been made for stay of the drivers, which were demolished by MCD on the ground of encroachment over and above the area allotted to the taxi stand.
14. Perusal of amended plaint reveals that plaintiff has stated that on 31.01.1996, some officials purporting to be from office of defendant no.2 came to the taxi stand of the plaintiff and threatened him to vacate the premises or he will be forcibly dispossessed. However, in his crossexamination dated 28.02.2012, PW1/SPA Sh. F. S. Grewal admitted that he was not present at the taxi stand on 31.01.1996 when the threat had been extended to plaintiff by the official of defendant no.2.
RCA SCJ 5748/16 Page 7 of 14S. Bhupinder Singh Vs. Principal Green Field School & Ors.
15. Perusal of crossexamination of PW1 dated 05.03.2015, further reveals that he has admitted that he does not know the name and designation of the officer of defendant no.2 who has given threat to plaintiff. He admitted that the complaint mentioned in para no. 16 of his affidavit, which was allegedly made by defendant no.1 is not on record. He also stated in his crossexamination that permission for temporary sheds for drivers and telephone booth from District Magistrate is existing since last many years but he has not filed any such document of permission on record.
16. PW1 has admitted that the Laxmi Taxi Service is in name of plaintiff Sh. Bhupinder Singh, who is his soninlaw. He also stated that site plan was not prepared in his presence. He admitted that the facts mentioned in para no.14 of his affidavit regarding threat did not happen in his presence.
17. Perusal of above stated portions of crossexamination of the witness clearly reveals that the witness was not present at the site when alleged threats were extended by the employees of defendant no.2. Apprehension or threat of dispossession is a state of mind which should have been proved by the plaintiff himself RCA SCJ 5748/16 Page 8 of 14 S. Bhupinder Singh Vs. Principal Green Field School & Ors.
who was allegedly threatened, and SPA is not competent to depose in respect of state of mind of the plaintiff. Moreso, when SPA was not present at site on the dates when alleged threats were extended by defendant no.2 to the plaintiff. Plaintiff failed to appear in the witness box to prove the averments and allegations in respect of threat/ apprehension as mentioned in the plaint, therefore, Ld. Trial Court has rightly observed that the facts regarding threat/ apprehension have not been proved by the plaintiff. In this regard, it is pertinent to mention herein the relevant portions of judgment of Hon'ble Supreme Court titled "Man Kaur (dead) by LR's Vs. Hartar Singh Sanga (2010) 10 SCC 512".
"18. We may now summarize 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 RCA SCJ 5748/16 Page 9 of 14 S. Bhupinder Singh Vs. Principal Green Field School & Ors.
those acts or transaction. 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 mangers/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 RCA SCJ 5748/16 Page 10 of 14 S. Bhupinder Singh Vs. Principal Green Field School & Ors.
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 proceedings, 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 this tenant, on the ground of his 'bona fide' need and not 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 bana 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.
RCA SCJ 5748/16 Page 11 of 14S. Bhupinder Singh Vs. Principal Green Field School & Ors.
18. It is also relevant to mention herein para 12 of judgment relied upon by respondent no.1 "Janki Vashdeo Bhojwani & Anr. Vs. Indusind Bank Ltd. & Ors.", 2005(3) Supreme 27.
12. 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 the principal is entitled to be crossexamined".
19. Thus, it is clearly held by Hon'ble Supreme Court in both the abovestated judgments that the Power of Attorney Holder cannot depose in place of the principal in respect of RCA SCJ 5748/16 Page 12 of 14 S. Bhupinder Singh Vs. Principal Green Field School & Ors.
transactions/acts done by the principal and in respect of the facts and circumstances of the case which are specially within personal knowledge of the principal.
20. Law of evidence is very clear on this aspect, Section 60 of Indian Evidence Act states that a person who has perceived a fact with his senses shall himself depose about that fact. In this case, plaintiff Sh. Bhupender Singh had personal knowledge of the fact of apprehension/ threat extended by employees of defendant no.2, therefore, he must have stepped into witness box to depose in respect of those facts. But the plaintiff did not examine himself, and his SPA/PW1 Sh. F.S. Grewal admitted that the facts/incidents of threat had not occurred in his presence, therefore, his evidence in respect of those incidents was merely heresay evidence. The plaintiff failed to adduce best evidence to prove his case, therefore, he shall have to suffer the consequences of that failure. Since the facts regarding threat/ apprehension remained unproved, there was no ground to grant relief of permanent injunction in favour of plaintiff.
21. Hence, Ld. Trial Court has rightly dismissed the suit. No ground for interference in judgment and decree of Trial Court is made out. The judgment and decree dated 19.07.2016 is upheld RCA SCJ 5748/16 Page 13 of 14 S. Bhupinder Singh Vs. Principal Green Field School & Ors.
and the appeal is dismissed.
22. Parties to bear their own costs. Decreesheet be prepared accordingly.
23. Trial Court Record be sent back to the concerned Court/ Successor Court with copy of this judgment and decree.
24. Appeal File be consigned to Record Room.
(Announced in the open (Tyagita Singh)
Court on 30.07.2018) SCJcumRC (South), Saket Courts
New Delhi
Digitally
signed by
TYAGITA
TYAGITA SINGH
SINGH Date:
2018.07.31
15:13:11
+0530
RCA SCJ 5748/16 Page 14 of 14