Laxman Prasad vs Sadhna Jain

The present second appeal filed u/s 100 of the Code of Civil Procedure assails the concurrent findings rendered by the trial Court as well as First

Appellate Court decreeing the Suit for eviction based on the grounds enumerated u/s 12(1)(a)&(c) of M.P. Accommodation Control Act, 1961

(“the Act, 1961â€​ for brevity).

Learned counsel for the rival parties are heard on the question of admission.

The facts giving rise to the suit in question were that the plaintiff/landlord instituted a suit for eviction on the ground of Section 12(1)(a)&(c) of the

Act, 1961 through the power of attorney holder (her husband Shravan Kumar Jain) claiming herself to be the owner of the suit property on the

strength of the registered sale-deed dated 22/01/2002 [Ex-P/8C] and the certified copy of khasra for the year 2005-06 [Ex-P/1] mentioning the name

of the erstwhile owner Deepak Udasi from whom the plaintiff had bought the suit property. The plaint averred that in the suit property which was half

of the house situated at survey No.743 Mohalla Udasi Ashram, town of Guna, the defendant / appellant herein was entered as tenant at rent of Rs.

18/- per month vide Ex-P/9C to Ex-P/12 (rent receipts). The plaint further averred that no rent was paid by the defendant / tenant from February,

2002 for which reminders were sent by letters vide Ex-P/5 & P/6. Notice for eviction dated 24/04/2005 was served upon the tenant/ defendant which

was returned with the endorsement that tenant had gone out of station. The suit was, thereafter, filed u/s 12(1)(a)&(c) the Act, 1961 for eviction and

arrears of rent.

Defendant came out with a plea denying the ownership of the landlord and claiming himself to be the owner of the suit property.

On examination of evidence brought on record, the trial Court found the factum of relationship of tenancy to exist between the rival parties on the

strength of the testimony of (PW/1 Shravan Kumar Jain) and (PW/2 Usha Devi). The trial Court found the evidence adduced by the plaintiff in regard

to the existence of tenancy between the rival parties and also the factum of the arrears of rent to be established. As regards the defence that the

defendant was the landlord, the Trial Court was of the view that the material brought forth by the defendant/tenant was not strong enough to support

the said contention. As such the trial Court came to the conclusion that denying ownership of the landlord is inter alia a good ground for eviction.

Consequently, the decree was passed in favour of the plaintiff for eviction and arrears of rent, which has been subsequently upheld by the First

Appellate Court.

Learned counsel for the appellant, by relying upon the decisions of the Apex Court in Janki Vashdeo Bhojwani and another Vs. IndusInd Bank Ltd

and others [(2005) 2 SCC 217], Man Kaur (Dead) by LRs Vs. Hartar Singh Sangha [(2010) 10 SCC 512], A.C. Narayanan Vs. State of Maharashtra

& Anr [AIR 2014 SC 630] and Vidhyadhar Vs. Manikrao and another [(1999) 3 SCC 573], primarily, submitted that a power of attorney holder

(husband of the plaintiff) could not have deposed before the Court and therefore, the trial Court fell in grave and substantial error of law in believing

and relying upon the testimony of the power of attorney holder despite the plaintiff herself not personally testifying before the Court.

It is further submitted that the first and foremost question about the relationship of the landlord and tenant was not even addressed much less

decided by the Courts below.

After having heard learned counsel for the rival parties and having perused the material and evidence brought on record and also the findings

rendered by the Courts below, this Court is of the considered opinion that none of the substantial questions of law as proposed by the appellant nor any

new one arises in the present second appeal, in the absence of which the present Second Appeal deserves to be dismissed for the reasons mentioned

infra.

A bare perusal of the judgment and decree of the trial Court reveals that on the basis of the sale deed executed in favour of the plaintiff and in the

absence of equally cogent evidence to support the claim of the ownership of the defendant, the trial Court did not commit any substantial error in

recording a finding that the plaintiff is the landlord of the accommodation in question. In fact, the tenancy deed Ex-D/1(c) relied upon by the

defendant/ tenant which reflected the name of the father of the defendant as the tenant further belied the claim of the defendant/ tenant to be the

landlord. Moreso, in a suit for eviction under the Act, 1961, the concept of ownership is not of much relevance so long as the relationship of landlord

and tenant is established between the rival parties based on the principle of preponderance of probability. In the instant case, no legal error can be

found in the finding of the trial Court and the First Appellate Court that the rival parties in the suit were landlord and tenant.

The ground, on which great emphasis has been laid by the learned counsel for the appellant, is that the testimony of the power of attorney holder

of landlord/plaintiff could not have been relied upon in the absence of the plaintiff having entered the witness box. Much reliance is placed on the

decision of Janki Vashdeo Bhojwani and another (supra) in which the Apex Court after considering the divergent views of the Rajasthan High Court

in the case of Shambhu Dutt Shastri Vs. State of Rajasthan, 1986 2 WLN 713 (Raj) on one hand and of the Bombay High Court in Humberto Luis

Vs. Floriano Armando Luis (2002) 2 Bom CR 754 on the other held thus:-

“17. On the question of power of attorney, the High Courts have divergent views. In the case of Shambhu Dutt Shastri Vs. 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 the 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 Vs. Hari Narain AIR 1998 Raj. 185. It was held that the word

acts"" used in Rule 2 of Order 3 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 CPC.

In the case of Pradeep Mohanbay (Dr.) Vs. Minguel Carlos Dias (2000) 1 Bom LR 908 the Goa Bench of the Bombay High Court held that a

power of attorney can file a complaint under Section 138 but cannot depose on behalf of the complainant. He can only appear as a witness.

However, in the case of Humberto Luis Vs. Floriano Armando Luis (2002) 2 Bom CR 754 on which reliance has been placed by the Tribunal in

the present case, the High Court took a dissenting view and held that the provisions contained in order 3 Rule 2 CPC cannot be construed to disentitle

the power of attorney holder to depose on behalf of his principal. The High Court further held that the word ""act"" appearing in order 3 Rule 2 of CPC

takes within its sweep ""depose"". We are unable to agree with this view taken by the Bombay High Court in Floriano Armando (supra).

We hold that the view taken by the Rajasthan High Court in the case of Shambhu Dutt Shastri (supra) followed and reiterated in the case of Ram

Prasad (supra) is the correct view. The view taken in the case of Floriano Armando Luis (supra) cannot be said to have laid down a correct law and

is accordingly overruled.â€​

Close scrutiny of the law laid down by the Apex Court clearly reveals that the power of attorney holder of the party in a suit cannot depose on

behalf of the party in respect of the matters concerning the personal capacity and knowledge of the party.

It is seen from the record that there is no such question asked to the power of attorney holder (PW/1), the husband of the plaintiff, which could be

categorized as a question privy to the personal knowledge or capacity of the plaintiff. The question put up and the issues raised in the testimony of the

power of attorney holder to depose on behalf of his wife [plaintiff] were questions relating to facts which were well within the knowledge of the

power of attorney holder and therefore, it cannot be said that the deposition of the power of attorney holder (PW-1) was on behalf of the plaintiff in

the capacity of the plaintiff. Thus, the said decision of the Apex Court is of no avail to the appellant.

Moreso, learned counsel for the appellant has not pointed out any particular issue on which the power of attorney holder (PW-1) was examined in

cross-examination which related exclusively to the domain of personal knowledge and personal capacity of the plaintiff.

In view of above, non-entering of the plaintiff in the witness box and her non-examination does not adversely affect the case of the plaintiff,

especially when the other pre-requisites for proving the case u/s 12(1)(a) & (c) the Act, 1961 were established based on the principle of

preponderance of probability.

Pertinently, the issue of power of attorney does not seem to have been raised by the defendant/tenant before the first trial and appellate court.

However, since the same relates more to the field of law than facts, this Court has considered the same supra.

On the basis of the above discussion, neither any of the proposed substantial questions of law nor any new ones arise in the present second appeal

filed against the concurrent findings of fact arrived at by the courts below in favour of the plaintiff/landlord.

Consequently, the present second appeal is dismissed at admission stage.