Punjab-Haryana High Court
Manmohan Singh vs Smt. Narinder Kaur on 20 February, 2008
Equivalent citations: (2008)151PLR415
Author: Ranjit Singh
Bench: Ranjit Singh
JUDGMENT Ranjit Singh, J.
1. The petitioner has impugned an ex-parte order of his ejectment made on 18.2.1999. His application under Order 9 Rule 13 CPC for setting aside the ex-parte ejectment is also dismissed by the Court on 10.10.2006 and that is how he has impugned both the orders in the present revision petition. Plea is that the petitioner was not served and as such was wrongly proceeded ex-parte. While issuing notice of motion, the dispossession of the petitioner was stayed subject to deposit of Rs. 50,000/-with the Executing Court within a period of one month.
2. Noticing briefly, it is averred that respondent-landlady has obtained the ex-parte order of ejectment by misrepresentation and fraud. Plea is that no service was effected on the petitioner and he never intentionally or otherwise absented from the proceedings in the court. As per the petitioner, he learnt about the ex-parte order of ejectment only on 18.1.2000, when respondent-landlady came to the tenanted premises with 5-6 persons. At that time, the copy of the order dated 18.2.1999, as per the petitioner, was shown to him. On learning about the ex-parte order of his ejectment and also of the fact that the execution was pending before the Court for 21.1.2000, he filed the application for setting aside of ex-parte ejectment order. In the application filed by the petitioner, it is urged that respondent- landlady had obtained a false report in connivance with the Process
3. Server and otherwise the petitioner had a good case on merits. It is further urged that the petitioner would suffer a great loss and injury, if the ex-parte order of ejectment is not set aside.
4. Notice of the application was issued to the respondent- landlady. She has filed a reply raising preliminary objections urging that the petitioner-tenant is residing at Bankok since 1995 and one Prem Singh is sitting in the suit property as sub-tenant. It is further disclosed in the reply that the petitioner is not seen since 1995 and all efforts made by the Court to serve him failed, when as a last resort a proclamation was published. Respondent-landlady has also denied the allegation that she along with 5-6 persons had visited the demised premises. On the basis of the pleadings, the trial Court framed the following issues:
1. Whether there are sufficient grounds for setting-aside ex-parte order dated 18.2.1999? If so its effect? OPA.
2. Whether the application is within time? OPA.
3. Whether the present application is not maintainable? OPR.
4. Relief.
5. The trial Court gave opportunity to the parties to lead their evidence. The petitioner examined Daljit Singh as a witness and closed his evidence. Respondent-landlady examined Gurdial Singh as a witness, besides herself stepping into the witness box. Appreciating the evidence and the material on record, the trial court noticed that the ejectment petition was filed on 8.4.1996. Notices were issued to the respondent for 20.5.1996 and then for 13.8.1996. Another notice was issued for 17.10.1996 and when the petitioner could not be served, then he was ordered to be served through munadi for 10.1.1997. The case was adjourned to 20.2.1997 when none appeared for the petitioner and he was proceeded ex-parte. The ejectment petition was finally disposed on 18.2.1999. A fact of significance, which is on record, is through the evidence of Daljit Singh, who has stated that petitioner Manmohan Singh used to go off and on to foreign country and no summons were ever received by him. Evidence of Daljit Singh further is that the petitioner never refused the summons and that no munadi was effected.
6. Learned Counsel representing the petitioner would find serious fault with the action of the Court in directing service to the petitioner through munadi. Submission is that the provisions of Order 5 Rule 19-A are mandatory. By referring to the case of Rattan Singh v. Sardool Singh 2000(2) Civil court Cases 144, it is urged that it will be negating justice when service through munadi is resorted to without making any effort to serve the summons through personal service. It is further held in this case that the provisions of Order 5 Rule 19-A are mandatory. The counsel would also refer to the observations made in the case of Subedar Amar Singh v. Avtar Singh and Anr. 2003(3) Civil Court Cases 419, wherein the court upheld the order setting aside ex-parte decree on finding that before resorting to substituted service, no satisfaction of the Court was recorded that it is not possible to serve the party in an ordinary course.
7. Mr. Amit Jain, appearing on behalf of the respondent- landlady would point out that petitioner is resorting to these proceedings to harass the respondent-landlady and always knew about the ejectment order. He would point out that the present revision petition is not filed by the petitioner himself but through his attorney Daljit Singh. He would also highlight that though the application for setting aside the ex-parte ejectment order was filed by the petitioner, but he never appeared in support of the application and only gave evidence through his attorney Daljit Singh. The counsel further points out that even now the petitioner is not present in India which would clearly show that he is not needing this shop for business but is prosecuting the case to harass the landlady- respondent.
8. The counsel for the petitioner was given time to make the petitioner to appear before the court and the case was adjourned on 15.2.2008 to 20.2.2008 (today). It is conceded by the counsel that the petitioner is not present in India and can come present before the court if adjournment of a month or so is granted. There is, thus, a substance in the submission made by the counsel for the respondent-landlady.
9. The trial court has noticed that the petitioner was served through munadi and the report of Process Server in this regard is on record. It is also noticed that the petitioner could not be summoned through normal service on more than one occasion. It is, thus, held that no ground is made out for setting aside the ex-parte order of ejectment.
10. It may need a mention that the petitioner never appeared in support of his application seeking setting aside of the ex-parte ejectment order. Whether he was served or not or if he had refused service could only have been validly answered by the petitioner himself and not by his attorney. The petitioner was to be served in person and not through his attorney. The fact of munadi having not been done would also be in the knowledge of the petitioner. All these aspects were in the personal knowledge of the petitioner and he only could have deposed about these. The attorney, though competent to give evidence on the basis of his personal knowledge, yet could not completely depose facts which were in the personal knowledge of the petitioner. The attorney cannot give evidence on behalf of the principal and in this regard reference can be made to the law laid down in Janki Vashdeo Bhojwani v. Indusind Bank Ltd. 2005 (1) RCR (Civil) 240, wherein the Hon'ble Supreme Court has held that attorney holder can not be allowed to appear and depose as a witness on behalf of the principal in the matter of his personal knowledge. He can only appear as a witness in his own capacity to depose with regard to the acts done by him on behalf of the principal.
11. 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.
12. 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.
13. 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 2WLL 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.
14. It can thus be said that the petitioner could not make out a case for setting aside of ex-parte decree as there is no valid evidence or material on record. He could not properly establish if he was served or not or if he had refused service. There is no valid evidence on record to show that munadi was not got conducted. Rather the material relied upon by the court is on record showing report of service through munadi. It cannot be easily discarded, specially in view of the petitioner having failed to lead any evidence to the contrary. The impugned order would not call for any interference. The revision is dismissed.