Jammu & Kashmir High Court
Gopal Krishen vs Priti Bala And Ors. on 1 September, 2005
Equivalent citations: AIR2006J&K76, AIR 2006 JAMMU AND KASHMIR 76
Author: Permod Kohli
Bench: Permod Kohli
JUDGMENT Permod Kohli, J.
1. This Civil 2nd Appeal has arisen out of judgment dated 16-11-2002 passed by the learned District Judge, Udhampur in an appeal preferred by the present appellant and respondents 2 and 3 herein against the judgment and decree dated 4-9-2000 passed by the Munsiff, Udhampur. Briefly stating the facts as revealed from the impugned judgment are that, respondent 1 claiming herself to be the tenant in suit shop situated at Udhampur, filed a suit for permanent prohibitory injunction against the present appellant and respondents 2 to 4 seeking protection of her possession and tenancy against forcible interference by the defendant. It was alleged that the shop in question was obtained by her on monthly rent of Its. 100/- in the year 1982 and since then she is in possession of the same and carrying on business of manufacture and sale of wooden furniture. It was also pleaded that the rent of the shop was enhanced to Rs. 150/- per month since April, 1988. The rent was being paid to Chanchla Devi as defendant-1, Gopal Sharma presently appellant usually remained out of Udhampur in connection with service. It was further pleaded that plaintiff has paid the rent from August, 1990 till ending March, 1991. Further allegations as contained in the plaint are that, while the suit shop remained closed for one and half month under the lock and key of the plaintiff, it was on 15-5-1991 husband of the plaintiff lodged report in the Police Station and defendants were forced to remove their lock from the suit shop and the plaintiff again put her lock on and continues to be in possession.
2. The defendants on appearance, filed their written statements contesting the claim of the plaintiff, respondent-1 and claims to be in possession of the shop having been surrendered by Mr. Sohan Lal, husband of respondent-1 of his own in the year 1988 after the death of Mann Dei, the original land lady. It was also pleaded before the trial Court that the plaintiff thereafter tried to seek forcible re-entry in the suit shop. On the basis of pleadings of the parties, the trial Court framed the following issues :
1. Whether the plaintiff is tenant of the defendant No, 1 in respect of the suit shop and she is in its possession? O.P.P.
2. In case Issue No. 1 is proved in affirmative whether the defendants are trying to evict the plaintiff from the suit shop otherwise then in due course of law and they are interfering in her possession? O.P.D. 3 Whether the suit in the present form is maintainable? O.P.D.
4. Relief?
3. Parties led their respective evidence before the trial Court and on conclusion of the trial, the trial Court held both the issues 1 and 2 proved and consequently decreed the suit vide its judgment and decree dated 4-9-2000 restraining the defendants from interfering in the possession of the plaintiff in the suit shop unless and until the plaintiff is not evicted by following due course of law. While deciding Issues Nos. 1 and 2, the trial Court held that the tenancy of the plaintiff is established. It is also established that the defendants tried to evict the plaintiff from suit shop otherwise than due course of law. The judgment and decree passed by the trial Court came to be assailed before the learned District Judge, Udhampur in appeal preferred by the present appellant and respondents 2 and 3 jointly. The appellate Court while concurring with the findings and judgment of the trial Court, dismissed the appeal vide its judgment and decree dated 16-11-2002. This appeal is accordingly against the judgment and decree of the appellate Court.
4. It appears that this appeal came up for consideration. Notice of the same was issued and the same was directed to be listed for hearing. The appeal was taken up by my Lord the Chief Justice on 15-4-2005, when it was noticed that the appeal was never admitted nor any substantial question of law framed. It was directed to be listed for admission.
5. In the memo of appeal, as many as seven questions have been framed, which are said to be substantial questions of law. I have perused the same. I am of the opinion that none of the question formulated in the memo of appeal, constitute substantial question of law. The appellant strenuously pressed for questions framed as "A and B" of Para 8 of the memo of appeal to be substantial questions of law and made submission on that. These questions are as under:
A. Whether a Power of Attorney holder can appear for and on behalf of the party to depose for and on his/her behalf and what is its legal value?
B. Whether non-appearance by the respondent No. 1 in the witness box to state her case on oath and offer herself to be cross-examined by the other side gives rise to a presumption that the case set up by her is not correct?
6. It is stated on behalf of appellant that it is settled proposition of law as emerged from various judgments in recent days that an attorney holder is not competent to appear as witness on behalf of the party and depose for the party. In the present case, admittedly, respondent-1 Priti Bala filed a suit as plaintiff. It is also undisputed that she never appeared in the witness box rather her husband, Sohan Lal, Advocate who was attorney holder appeared on her behalf as witness and was subjected to cross-examine.
7. Mr. K. N. Sapolia, learned Counsel for the appellant has placed reliance upon Vidhyadhar v. Mankikrao and Anr. reported as , wherein the Apex Court held (Paras 15 & 16) :
It was defendant-1 who contended that the sale deed, executed by defendant-2 in favour of the plaintiff was fictitious and the whole transaction was a bogus transaction as only Rs. 500/- were paid as sale consideration to defendant-2. He further claimed that payment of Rs. 4.500/- to defendant 2 at his home before the registration of the deed was wholly incorrect. This plea was not supported by defendant-1 as he did not enter into the witness box. He did not state the facts pleaded in the written statement on oath in the trial Court and avoided the witness box so that he may not be cross-examined. This, by itself, is enough to reject the claim that the transaction of sale between defendant No. 2 and the plaintiff was bogus transaction.
Where a party to the suit does not appear into the witness box and states his own case on oath and does not offer himself to be cross-examined by the other side, a presumption would arise that the case set up by him is not correct as has been held in a series of decisions passed by various High Courts and the Privy Council beginning from the decision in Sardar Gurbakash Singh v. Gurdial Singh AIR 1927 PC 230. This was followed by the Lahore High Court in Kirpa Singh v. Ajaipal Singh AIR 1930 Lahore 1 and the Bombay High Court in Martand Pandharinath Chaudhari v. Radhabai Krishnarao Deshmukh AIR 1931 Bombay 97. The Madhya Pradesh High Court in Gulla Kharagjit Carpenter v. Narsingh Nandkishore Rawat , also followed the Privy Council decision in Sardar Gurbakash Singh's case AIR 127 PC 230 (supra). The Allahabad High Court in Arjun Singh v. Virender Nath held that if a party abstains from entering the witness box, it would give rise to an inference adverse against him. Similarly, a Division Bench of the Punjab and Haryana High Court in Bhagwan Dass v. Bhishan Chand AIR 1974 Punj and Har 7, drew a presumption under Section 114 of the Evidence Act against a party who did not enter into the witness box.
8. Further reliance is placed upon the judgment of this Court in Smt. Kamla Bakshi v. Union of India and Ors. passed in CSA No. 59/99 , wherein the Court held as under (Para 13):
What is deducible from the aforesaid judgment is that word 'act' in Rule 3 CPC debars the power of attorney holder to appear as witness on behalf of the party. He can appear as a witness only in his personal capacity and can state on oath whatever he has knowledge about the case, but cannot appear as a witness on behalf of the party in the capacity of that party. In case the party is unable to appear in the Court his evidence can be recorded on a Commission, under the provisions of Code of Civil Procedure. Even the deaf witness may also be examined in the same manner as is provided under Section 119 of the Evidence Act.
9. Further reliance is placed upon recent judgment of the Apex Court in Janki Vashdeo Bhojwani and Anr. v. Indusind Bank Ltd. and Ors. reported as . The Apex Court while considering Order 3, Rules 1 and 2 CPC and the right of the attorney holder to appear as witness in the Court, ruled as under (Para 13) :
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 cross-examined.
10. I have carefully gone through the facts on record of this case as also the factual background in the above referred judgments. In (supra), the party did not enter into witness box and it was under these circumstances, the Apex Court ruled that the presumption has to be drawn against the party, who failed to appear in the witness box. In case Kamla Bakshi v. Union of India (supra), the main question answered by this Court was, whether a counsel appearing on behalf of the party, can be a competent witness and while negating the plea of the plaintiff that the counsel can be a competent witness, this Court held that counsel who appears for a party, is required to withdraw from the case to be as witness in respect to acts done by him as a counsel in the case. In case Janki Vashdeo Bhojwani and Anr. v. Indusind Bank Ltd. and Ors. (supra), the Apex Court while analyzing the provision of Order 3 Rules 1 and 2 held that an attorney if appears as a witness, can depose in respect to acts done by him as an attorney, but he cannot depose for the principal for the acts done by the principal and not by him, It has been further held that he cannot depose for the principal in respect of matter which only the principal has the personal knowledge and in respect of which the principal is entitled to be cross-examined. With a view to apply the ratio of the aforesaid case, the facts of this case are needed to be scanned. It is the positive case of the appellant herein that in view of the evidence led before the trial Court, it is apparent that the suit shop was obtained on rent by Mr. Sohan Lal, Advocate, husband of respondent 1. It was Sohan Lal, who was carrying on furniture business and was running the shop. It is also the case of the appellant that it was Sohan Lal who surrendered the possession of the shop to the landlady and in fact, Sohan Lal was the tenant in the suit shop. As a matter of fact, all acts in respect to the mutual relationship of the landlady and the tenant of the shop in question have been attributed to Sohan Lal from the date of commencement of tenancy till the conclusion of the trial though respondent 1 only pleaded that she obtained the shop on rent. It is also established that Sohan Lal was having valid power of attorney executed in his favour by respondent 1 in the suit. He appeared in the case on the strength of power of attorney and deposed on behalf of the plaintiff. Under these circumstances, since Sohan Lal all along acted on behalf of the tenant and was in fact alleged to be a tenant in the shop, appellant cannot raise grievance for non-appearance of the plaintiff herself as a witness nor can be permitted to say that he has been denied the right to cross-examine the plaintiff in respect of the facts which were/are in the exclusive personal knowledge of the plaintiff. Rather Sohan Lal has facilitated the plaintiff to effectively cross-examine him in accordance with the stand taken in the written statement as also the evidence led In the case. After reading of Order 3, Rules 1 and 2 as also the judgments of the Apex Court referred to above, a settled proposition of law emerges that an attorney can be a competent witness to depose in respect of acts performed by him, though he cannot depose in respect to and the matter for which the plaintiff has exclusive personal knowledge. There is no absolute bar for the attorney to appear and depose on behalf of the party as is sought to be projected by the appellant in the present case. Since all the acts from the date of tenancy till the conclusion of the trial have been attributed to the attorney namely Sohan Lal, Advocate by the appellant (defendant), the plea that non-appearance of respondent 1 (plaintiff) in the witness box is fatal for the plaintiff cannot be accepted.
11. In view of the above legal and factual position. I do not find that even the Questions 'A & B' constitute substantial questions of law having been dealt-with by the Apex Court particularly in AIR 2005 SC 439 (supra), I find no merit in this appeal, which is accordingly dismissed.