Jammu & Kashmir High Court
Smt. Kamla Bakshi vs Union Of India (Uoi) And Ors. on 10 June, 2003
Equivalent citations: AIR2004J&K65, 2003(3)JKJ573, AIR 2004 JAMMU AND KASHMIR 65, 2003 (3) JKJ 573, 2004 (3) RECCIVR 344 NOC, (2004) 1 RENCR 601, (2004) 2 RENCJ 121, (2004) 3 CIVILCOURTC 145
JUDGMENT
1. This Civil Second Appeal is directed against the decree made in the judgment dated 31.8.1999 passed by the learned District Judge, Jammu whereby Civil Ist Appeal against the exparte judgment and decree of Sub Judge, Jammu dated 16.9.1998 for eviction of the respondent from the suit premises, was set aside.
2. The facts of the case relevant for the disposal of this appeal put tersely are that the appellant/plaintiif let out the suit house explicitly delineated in the title of the plaint on a monthly rental of Rs. 2000/- to the respondents/defendants in the year 1993. The tenancy was to expire on 1.1.1996. According to the plaintiff the lease expired by afflux of time as no option was exercised by the defendants/respondents for the renewal of the lease and thus were liable to be evicted from the said premises. It is further stated that since the part of the disputed tenanted premises had become un-habitable due to the negligence of the defendants/respondents, the same had to be constructed by the plaintiff after spending a considerable amount. Plaintiff also served a legal notice calling upon the tenant/respondent to vacate the premises by mid night of Ist July, 1997 though the tenancy had expired by afflux of time, but the respondent/tenant did not vacate the premises. However, the plaintiff/appellant stated to have received a communication from the tenant/respondent dated 25.3.1997 intimating that the lease has been further enhanced for a period of three years at a monthly rent of Rs. 2200/ for which a lease agreement has been entered on 1.8.1996. It is also the case of the plaintiff-appellant that no such agreement was executed between the parties with regard to the extension of the lease and only a matter was dispatched to the plaintiff expressing the intention to extend the lease for three years and not for five years provided that the rent is enhanced and agreement to this effect is executed. The tenant however, neither agreed the enhancement of the rent claimed by the plaintiff nor executed any lease deed, extending further lease period of three years. By another communication dated 25.9.1997 plaintiff/appellant also stated to have informed the tenant/respondent that by afflux of time their tenancy has been determined and the lease having not been extended for want of any agreement executed between the parties, the tenant/appellant is required to be evicted. Plaintiff further stated that neither the rent had been paid for the last so many months nor the premises have been vacated, that gave her the cause of action to prefer the suit for ejectment of the defendants/respondents from the demised premises.
3. The defendants/respondents however, came to be represented by Mr. Sandeep Singh, Advocate who appeared on 31.3.1998 and opportunity was afforded to file the written statement. Since the defendants/respondents remained un-represented there-after, they were proceeded exparte by the trial court vide order dated 3.8.1998 and exparte evidence was ordered to be produced.
4. On the sole evidence of the witness Sh R.P. Bakshi, Advocate the plaintiff's suit for ejectment from the demised premises was decreed exparte, which became the subject matter of challenge before the learned District Judge, Jammu in Civil Appeal No. 41/1999. The Ist Appellate Court after going through the statement of Sh R.P. Bakshi, Advocate plaintiff's witness, however, found that it does not disclosed that how Mr. R.P. Bakshi had the knowledge regarding terms and conditions of the tenancy, the period of tenancy as three years and when it expired and whether the lease had been renewed for a period of three years or not on enhanced rent. His statement at the most could reflect upon the fact that notice dated 25.9.1997 had been served upon the defendant/appellant through him as Advocate of the plaintiff and that such statement is not enough in his opinion to entitle the plaintiff to get a decree and thereby set aside the judgment and decree passed by the learned trial Court vide order dated 31.8.1999. It is this order passed by the District Judge Jammu in Civil Ist Appeal No. 41, which has been challenged by the plaintiff-appellant. The validity, propriety and correctness has been impugned in this Civil Second Appeal, on the questions of law precisely stated in para 6 of the Memorandum of Appeal.
5. This Court while admitting the appeal on 6.5.2000 adopted the questions formulated in para 6 of the appeal as substantial questions of law for determination of this appeal and are re-produced here-under:
(1) Whether the first appellate Court after returning the finding that the notice had validly been given, would refuse the ejectment of the defendants without any special plea on the record (2) Whether after giving the findings by both the Courts below that the respondents/defendants have no protection under the J&K Houses and Shops Rent Control Act, the decree for ejectment could be refused to the appellant;
(3) Whether on mere facts that Sh R.P. Bakshi, Advocate had filed the suit has ultimately appeared in the case and made statement could be taken a ground for dismissal of the suit?
(4) When the suit was required to be decreed even ignoring the statement of Sh R.P. Bakshi, Advocate whether the decree could be refused on the mere ground that Sh R.P. Bakshi, Advocate had appeared as a witness and made the statement?
(5) Whether there is any bar for the counsel who happened to be the husband of the appellant to make the statement?
(6) Whether the first appellate Court could ignore the submissions of Sh D.S. Saini, Advocate of the plaintiff/appellant that after making the statement Sh R.P. Bakshi, Advocate did not appear in the case as counsel?
(7) Whether the mere fact in the judgment of the trial court name of Sh R.P. Bakshi, Advocate was shown could be taken ground that Sh D.S. Saini Advocate appeared for the appellant, who had also filed his vakalatnama, but his name has not been shown. On the contrary the name of sh R.P Bakshi, has been shown.
6. I have heard the arguments advanced by the learned counsel appearing for the respective parties and perused the judgment of the trial Court in context with the material on the record meticulously.
Issue No. 1It is not in dispute that the first appellate Court found all the ingredients of Section 80 CPC, but mere mentioning of the particular section will not term the notice only under Section 106 of the Transfer of Property Act and that the notice clearly being a composite notice both under Section 106 of the Transfer of Property Act and Section 80 CPC it is well settled that the composite notice is permissible provided it contained the ingredients of both the provisions of law. The Ist appellate Court also returned a finding that the defendants were served notice under Section 80 CPC and 106 Transfer of Property Act and the suit could not fail for want of service since the notice had been duly served.
Now the question arises whether it forms a part of cause of action and decree for ejectment can be passed in favour of the plaintiff/appellant on this ground alone.
Notice undoubtedly must furnish requisite basis on which the claim was made, but notice is not a part of cause of action although it is a condition precedent for the commencement of a suit. As a matter of fact the notice is first step in litigation when the cause of action is complete. It only provides a mode of procedure for getting a relief in respect of cause of action and does not constitute the relief itself. A statutory notice although essential provisionally for a valid suit does not make it a part of the cause of action in the suit itself. Notice under Section 80 CPC and its section does not define the rights of the parties and confer rights on the parties. It only provides mode of procedure for getting the relief in respect of the cause of action. So issue No. 1 formulated cannot be said by any stretch of reasoning to be a substantial question of law. Therefore, the plea put across by the appellate Counsel is not sustainable so as to merit acceptance also being not termed as substantial question of law involved in the appeal.
Issue No. 2As regards this issue, it is pertinent to point out that the first appellate court has no where returned a finding that the respondents/defendants have no protection under the Jammu & Kashmir Houses and Shops Rent Control Act. Under Sub-section (iii) of Section 1 of the J&K Houses and Shops Rent Control Act, a tenancy in respect of any house or shop where the income of a tenant whether accruing within or outside the State exceeds Rs 60, OOO/-per annum, is exempted from the applicability of the Act. This again is a question of fact required to be proved by the plaintiff in this case. The sole evidence on the basis of which the suit was decreed by the trial court is of Sh R.P. Bakshi, Advocate, as witness of the plaintiff/appellant recorded on 7.9.1993, wherein he stated that protection of J&K Houses and shops Rent Control Act is not available to the respondent Union of India and its functionaries. This is required to be determined on the basis of evidence, being a question of fact. In such circumstances this issue also cannot be said to be a substantial question of law involved in the appeal.
Issue No. 3 to 7.
The spinal question arising in these issues is as to whether the Advocate could appear as a witness for the plaintiff and the suit can be decreed on his statement alone. It is settled proposition of law that if an Advocate appears in a case as witness, he cannot act in the same cause as an Advocate. Further where an Advocate accepts the brief on behalf of a party and conducts the case in a manner in which he knows that he is likely to be cited as a material witness, he cannot subsequently withdraw from the case and appear as a witness.
7. It is not in dispute that Sh. R.P. Bakshi, Advocate had served a legal notice on the defendant under the instructions of the plaintiff. The suit has also been filed by Sh. R.P. Bakshi, Advocate on behalf of the plaintiff, duly signed by him as Advocate for the plaintiff. While Rule 1 of Order 3 CPC mentions the functions of a pleader, Rule 4 merely deals in acting and pleading by an Advocate duly appointed by a party by a document in writing called 'Vakalatnama' and filed in the court. The words 'appearance' and 'act' have a well defined and well known meaning i.e. to appear for client in the court, to present himself at various stages of litigation, to act and take steps necessary that must be taken in the course of litigation. A right to examine and cross-examine witnesses is also covered under the aptitude of word 'act'. It therefore, follows that the word 'act' used in Order 3, does not include the act of Advocate to appear as a witness on behalf of the party.The record also does not suggest that at no point of time Sh. R.P. Bakshi, Advocate, who is the husband of the plaintiff was in any manner authorized to appear and make a statement on her behalf in the case. The statement made by Sh. R.P. Bakshi, Advocate in the case as Advocate of the plaintiff on behalf of the plaintiff is clearly discernable from the statement itself made in the case. It may be pointed out that there are certain facts, which may be certified by the Advocate which are to his personal knowledge. This may be the fact of having issued a notice to be served upon the defendants/respondents on the instructions of his client to be certified by the Advocate Mr. R.P. Bakshi. But the attorney holder however, is not entitled to appear as a witness after appointing him as a power of attorney. The word 'act' in R.2 does not include an act of power of attorney holder to appear as a witness on behalf of a party. As a substitute of the plaintiff, the Advocate cannot appear as a witness and make a statement. An Advocate can only certify those facts which have been communicated to him by the plaintiff. In other words where the Advocate knows that he is a material witness in the case and may have to appear as such, at any point of time should not continue to appear as a counsel. It is further borne out from the record that even after appearing as a witness in the case Mr. R.P. Bakshi, Advocate continued to appear as a counsel for the plaintiff till the decision of the case. Record does not reveal that Sh. R.P. Bakshi, Advocate had withdrawn as an Advocate for the plaintiff after appearing as a witness for the plaintiff. It is also not found from the record that Mr. D.S. Saini, Advocate ever filed a Vakalatnama and appeared for the plaintiff/appellant. In case Shambhu Dutt Shashtri v. State of Rajasthan, (1986) 2 WLN 713, Rajasthan High Court in para 23 propounded as under:-
"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."
8. What is deduceable from the judgment aforesaid judgment is that the word 'act' in Rule 3 CPC debars the power of attorney holder to appear as a 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 the 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. Considering the totality of facts and circumstances of the case and from the stand of the appellant, I do not see any good reason to interfere in the findings arrived at by the Ist Appellate Court. There is no jurisdictional error in the judgment under appeal. If it is allowed to stand it would not cause failure of justice. In the result, the appeal fails and is hereby dismissed, with no order as to costs.