Shree Laxmi Stores vs Chandanmal Chhajer

The revisional jurisdiction of this Court conferred by Section 115 of the Code of Civil Procedure, 1908 has been sought to be invoked while challenging the judgment and decreed dated 01.10.2016, passed by the learned Civil Judge, Dhubri in Title Appeal No. 76/2013, whereby, the appeal preferred by the respondent/plaintiff was allowed. The said appeal was preferred against the judgment and decree dated 05.08.2013, passed in Title Suit No. 256/2007 by the Court of learned Munsiff No. 1, Dhubri, by which the suit was dismissed.

The brief facts of the case may be put in a nutshell as follows;

i. The petitioner was the defendant in Title Suit No. 256/2007 instituted by the respondent as plaintiff. The suit was for ejectment of the present petitioner who was tenant in respect of the said property. The ground of ejectment was default in payment of rent as well as bona fide requirement.

ii. The petitioner, as defendant had contested the suit by filing written statement. The learned trail Court, after examination of the pleadings, had framed 6 (six) numbers of issues, out of which, issue No. 3, 4 & 5 would be relevant and are extracted herein below;

Whether the defendant is tenant under the plaintiff and whether defendant is a defaulter in respect of payment of rents for the suit premises?

Whether plaintiff is in bona fide requirement of the same?

Whether plaintiff is entitled to a decree of khas possessions of the suit premises by evicting the defendant therefrom?

iii. The plaintiff had adduced evidence through one PW, namely, Shri Mahabir Bhansali. Since the determination of this lis before this Court would hinge upon the deposition made by the said witness, it would be beneficial to note the background of the said PW. The said PW is the Power of Attorney holder of the land lord by virtue of an instrument executed on 13.04.2007 and immediately thereafter, the suit was filed. In the plaint, the cause of action was stated to have arisen on 26.03.1996, 15.05.1998, 20.03.2007, 30.03.2007 and 19.04.2007 and thereafter. It is to be clarified that 19.04.2007 is the date of issuance of notice connected to this proceeding.

iv. The learned Court of Munsiff No. 1, Dhubri vide judgment and decreed dated 05.08.2013, had dismissed the suit. As regards the bona fide requirement, it was held that the same could not be proved and so far as the ground of default was concerned, the learned Court had held that the said ground could not have been proved through the Power of Attorney holder as those were matters which were within the knowledge of the said PW.

v. Against the aforesaid judgment and decree, the plaintiff, as appellant had preferred an appeal before the learned Court of Civil Judge, Dhubri which was registered as Title Appeal No. 76/2013. The learned First Appellate Court vide the judgment and decree dated 01.10.2016, had reversed the finding of the learned Trail Court in so far as the default was concerned and allowed the appeal. On the point of deposing on matters which were not within the knowledge of the said PW, the First Appellate Court had held as follows;

In my considered opinion merely because of the fact that the PW1 is not aware on the date of commencement of tenancy or whether the defendant deposited the rent in court or not is sufficient enough to brand the PW1 is being ignorant of the facts of this case. It is an admitted fact that the tenancy was initially created between the defendant and three brothers much prior to the year 1998; as such it is not possible for anyone to remember the date of creation of tenancy. Moreover, the PW1 is the power of attorney holder of the plaintiff and as such he may not have been present during the relevant time when the tenancy was initiated in between the parties; as such his ignorance regarding the date of creation of tenancy cannot be of any significance while appreciating his evidence. Further, the fact that the PW1 is not aware as to whether the defendant is depositing rent in the Civil court or not appears to be very natural because the fact as to whether the defendant is depositing the rent in Court or not is a fact which is within the special knowledge of the defendant and unless the defendant discloses the said fact before the PW1, there is no reason as to how and why the PW1 would know of the said fact.

Aggrieved by the aforesaid judgment and decree, the present appeal has been preferred.

I have heard Shri Z. Mukit, learned counsel for the petitioner and Shri B. Banerjee, learned Senior Counsel assisted by Shri A. Mobaraque for the respondent.

Shri Mukit, learned counsel for the petitioner has urged that the views of the First Appellate Court in reversing the finding of the learned Trail Court with regard to evidentiary value of deposition rendered by Power of Attorney holder is against the established principle of law holding the field. The learned counsel submits that the Power of Attorney is entitled to depose on facts which have come to his knowledge or on acts done by him on the strength of the said instrument and he does not step into the shoes of the Principal in deposing the facts which were within the knowledge of the Principal. The learned counsel further submits that the expression "Acts" appearing in Order 3 Rule 1 & 2 of the CPC has to be confined to "Acts" done by the said Power of Attorney holder in exercise of power conferred to him by virtue of the instrument.

In support of his contention, Shri Mukit, learned counsel relies upon the following decisions;

(2013) 12 SSC 64 (S. Kesari Hanuman Goud -Vs- Anjum Jehan & Ors.)

2017 (3) GLT 744 (Ayita Begum Chaudhury & Ors -Vs-Kumar Kanti Sinha & Anr.)

a. The Hon'ble Apex Court in the case of S. Kesari Hanuman Goud (Supra) by taking note of the earlier case lodged including one reported in (2005) 2 SSC 217 (Janki Vashdeo Bhojwani -Vs- Indusind Bank Ltd.) had made the following observations in paragraph 23, which is quoted herein below;

"It is a settled legal proposition that the power of attorney holder cannot depose in place of the principal. Provisions of Order III, Rules 1 and 2 CPC empower the holder of the power of attorney to "act" on behalf of the principal. The word "acts" employed therein is confined only to "acts" done by the power-of-attorney holder, in exercise of the power granted to him by virtue of 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 preferred any "acts" in pursuance of the power of attorney, he may depose for the principal in respect of such acts, but he cannot depose for the principal for acts done by the principal, and not by him. Similarly, he cannot depose for the principal in respect of a matter, as regards which, only the principal can have personal knowledge and in respect of which, the principal is entitled to be cross-examined. (See: Vidhyadhar v. Manikrao & Anr., AIR 1999 SC 1441; Janki Vashdeo Bhojwani v. Indusind Bank Ltd., (2005) 2 SSC 217; M/S Shankar Finance and Investment v. State of A.P. & Ors., AIR 2009 SC 422; and Man Kaur v. Hartar Singh Sangha, (2010)10 SCC 512."

b. This Court in the case of Ayita Begum Chaudhury and Ors. (Supra) by following the law laid down by the Hon'ble Apex Court has also held that a Power of Attorney holder cannot depose on behalf of the principal in respect of the matter over which the principal had personal knowledge. It is further been held that in Order 3 Rule 1 & 2 of the CPC, power to act does not include power to appear has a witness on behalf of the party.

Per contra, Shri Banerjee, learned Senior Counsel has submitted that the views of the Appellate Court cannot be held to be a wholly unreasonable view so as to call for interference by Revisional Court. It is submitted that jurisdiction of this Court exercising power under Section 115 of the CPC is a circumscribed one and only on fulfillment of the laid down parameters, interference can be made. It is submitted that there is no jurisdictional failure in the impugned judgment and the same does not suffer from material irregularity or illegality and as such, this Court should be loath in interfering with such finding.

However, on the proposition of law laid down by the Apex Court in interpreting the role of power of the Power of Attorney holder in deposing in a case has been gracefully endorsed by the learned senior counsel.

Though the power of this Court in exercising jurisdiction under Section 115 of the CPC is a restricted one, in an appropriate case, interference may be call for and the opinion of this Court, the instant case is one of those case which needs to be interfered with.

The views of First Appellate Court in reversing the finding of the learned Trail Court so far as the deposition of the PW, who is the Power of Attorney holder do not appear to be a correct one. It has been clarified by the catena of judicial pronouncement while interpreting the provisions of Order 3 Rule 1 & 2 of the CPC that a Power of Attorney holder cannot depose on behalf of the Principal in respect of the matters which the Principal had a personal knowledge and he only entitled to depose on the matters which he had come to know on the strength of the Power of Attorney holder or has done in that capacity.

In the instant case, the default in payment of rent claimed in the plaint is of the year 1997 onwards whereas, the Power of Attorney was executed only on 13.04.2007, just before the institution of the suit. It has also not come on records that irrespective of instrument, the said PW, namely, Shri Mahabir Bhansali had any personal knowledge to the facts and circumstances.

In view of above, in the opinion of this Court, the suit should not have been decreed only on the strength of the deposition of the said PW, who is merely a Power of Attorney holder. It is an established principle of law that a plaintiff has to stand on his own legs and prove his case. In the instant case, the said burden has not been discharged by the plaintiff.

In view of the aforesaid facts and circumstances and the discussion made, the instant petition is allowed and the impugned judgment of the First Appellate Court dated 01.10.2016, is set aside.

Registry to transmit back the records to the learned Court of the Munsiff No. 1, Dhubri, forthwith