Research › Search › Judgment

Madhya Pradesh High Court · body

2003 DIGILAW 812 (MP)

SHANTI DEVI AGARWAL v. V. H. LULLA

2003-07-07

U.N.SINGH

body2003
U. N. SINGH, J. ( 1 ) THIS order, deciding the Civil revision No. 83/2003 filed against an order dated 9-12-2002, in the case No. 2/2000-2001/90-7 passed by the Rent Controlling authority, Gwalior, allowing an application under Order 3, Rule 2 of the CPC (hereinafter referred to as 'the Code') of the defendant seeking to reject the affidavit of the plaintiffs son, filed under Order 18, Rule 4 of the Code, on the strength of a power of attorney to that effect, shall also dispose of the Civil Revision No. 122/2003 which impugns an interim order dated 27-3-2003 in the same case, whereby the authority has recalled in part the order dated 9-12-2002 to correct a mistake of closing the plaintiffs evidence while deciding the question as to whether the plaintiffs son being the power of attorney holder was entitled to lead evidence on her behalf, by filing an affidavit. ( 2 ) IT is said that one Smt. Shanti Devi agarwal (hereinafter referred to as the 'plaintiff) filed an application under Sec. 23-A (a) of the M. P. Accommodation Control Act (hereinafter referred to as the 'act') against v. H. Lulla (hereinafter referred to as the 'defendant') for eviction from her house No. 17 (Municipal No. 31/1481) situated at Prem nagar, Gwalior, on the ground of bona fide requirement. It appears from the pleadings that the defendant has been staying as a tenant in the disputed premises at a monthly rent of Rs. 600/ -. The electricity and water charges are payable separately. The ground of bona fide requirement as pleaded in the application seems to be related to a requirement of residence of one Mukesh Kumar agarwal, the youngest son of the plaintiff, who is said to be residing in a rented house. The plaintiff appears to have been residing in a portion of her another house situated at Sadar Bazar, Morar, with her another son namely Mahesh Chand Agarwal and his family. It also appears that the plaintiff and her son Mukesh have no other alternative vacant accommodation of reasonable size suitable for their residential purpose in the city of Gwalior. ( 3 ) IT appears that the defendant was granted leave to defend under Section 23-C of the Act and he submitted a written statement denying the ground of bona fide requirement of the Landlord/plaintiff for eviction. ( 3 ) IT appears that the defendant was granted leave to defend under Section 23-C of the Act and he submitted a written statement denying the ground of bona fide requirement of the Landlord/plaintiff for eviction. The defendant appears to have pleaded like : the plaintiff was not the sole owner of the premises in question; the plaintiff does not need the premises, and he also owns some other alternative accommodation in the city and the defendant is paying a monthly rent of Rs. 600/- with a further amount of Rs. 100/- per month towards the water and electricity charges. ( 4 ) IT seems that the plaintiff being an elderly lady of about 78 years had given the power of attorney dated 16-10-2002 in favour of her son Banwarilal to contest the case and lead evidence on her behalf before the Rent Controlling Authority in this case and also in other pending cases. It further seems that the plaintiff had submitted an application under Order 7, Rule 14 (3) of the code and had sought leave to submit certain more documents like : a registered sale deed and house tax receipts in respect of a house situated at C. P. Colony, Morar, gwalior. By the order dated 9-12-2002 impugned in the Civil Revision No. 83/2003 the said application was allowed and the documents were taken on record. However, the Rent Controlling Authority by the same order while allowing an application of the defendant under Order 3, Rule 2 of the Code read with Section 118 of the Evidence Act, rejected an affidavit of the plaintiffs son, the power of attorney holder, for recording of evidence on her behalf and also closed the plaintiff's evidence. Thus the first part of the order dated 7-12-2002 appears to be in favour of the plaintiff and the second one in that of the defendant. It seems that in an application under Section 151 of the Code by a subsequent order dated 27-3-2003 impugned in the Civil Revision 122/03, the said order of closing the plaintiffs evidence in toto was recalled by following the decisions of this Court in the cases of (1) Baburao Vyas v. Vijay Mahajan, 1984 mpwnn 6, and (2) Vijay Pre-Prathamik and madhyamik Vidyalaya Shikshak Samiti v. Vijay Madhyamik Vidyalaya Samiti, 1986 mplj 541 . In Babu Rao's case this Court held that the powers under Section 151 of the Code could be exercised in a case of application for restoration which was treated as a review and also where certain provisions of law were found to have been overlooked. In Vijay Pre-Prathamik's case, it was held that a Court can correct a mistake under Section 151 of the Code. ( 5 ) THE order dated 9-12-2002 has been challenged in the Civil Revision No. 83/2003 only on a limited ground that the Rent Controlling Authority has seriously erred in rejecting the affidavit of the plaintiffs son being the power of attorney holder filed as the plaintiffs examination-in-chief under Order 18, Rule 4 of the Code, whereas, the subsequent order dated 27-3-2003 has been challenged by the defendant in the Civil Revision No. 122/2003 on the ground that the rent Controlling Authority was not empowered to recall the earlier order dated 9-12-2002 of closing the plaintiffs evidence. ( 6 ) THE plaintiff has assailed the order also on a ground that the Rent Controlling authority has misconstrued and misapplied the provisions of Order 3, Rule 2 of the Code and of Section 118 of the Evidence Act. The said provisions of Order 3, Rule 2 of the Code on reproduction read as : order III recognised Agents and Pleaders 1. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2. Recognised agents. The recognized agents of parties by whom such appearances, applications and acts may be made or done are (a) persons holding powers-of-attorney, authorizing them to make and do such appearances, applications and acts on behalf of such parties; (b ). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . And the provisions of Section 118 of the evidence Act on reproduction read as :"118. Who may testify. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . And the provisions of Section 118 of the evidence Act on reproduction read as :"118. Who may testify. All persons shall be competent to testify unless the Court considers that they are prevented from understanding the questions put to them, or from giving rational answers to those questions, by tender years, extreme old age. disease, whether of body or mind, or any other cause of the same kind. Explanation A lunatic is not incompeten,t to testify, unless he is prevented by his lunacy from understanding the questions put to him and giving rational answers to them. "it was urged that while closing the plaintiffs evidence, the Rent Controlling authority seriously erred in also closing the evidence of other witnesses of the plaintiff's side namely : Mukesh and Balkishan, whose examinations-in-chief had already been placed on record by way of affidavits. That apart, it was also urged that though the matter was not fixed for the plaintiffs evidence on 9-12-2002, still it was closed without assigning any reason, muchless a Valid reason'. On the other hand, it was submitted by the defendant that no power of attorney could be given to lead evidence on someone's behalf; that Order 3, Rule 2 of the Code would not authorise the power of attorney holder to appear and give statement/evidence on behalf of a party and that the plaintiff did not submit her examination-in-chief in terms of Order 18, Rule 4 of thecode. The provisions of Order 18, Rule 4 of the Code on re-production read as : order XVIII hearing OF THE SUIT AND EXAMINATION OF WITNESSES 1. to 3-A. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4. Recording of evidence. to 3-A. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4. Recording of evidence. (1) In every case, the examination-in-chief of a witness shall be on affidavit and copies thereof shall be supplied to the opposite parry by the party who calls him for evidence : provided that where documents are filed and the parties rely upon the documents, the proof and admissibility of such documents which are filed along with affidavit shall be subject to the orders of the Court. (2) to (8 ). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . A reliance was placed on a judgment of the rajasthan High Court in the matter of Ram prasad v. Hari Narain, AIR 1998 Rajasthan 185. The ratio thereof with reference to Order 3, Rule 2 of the Code and Section 118 of the Evidence Act says that a power of attorney holder is not entitled to appear as a witness for the party appointing him power of attorney holder. The word "acts" in Rule 2 does not include act of power of attorney holder to appear as a witness on behalf of a party. ( 7 ) THE other revision namely the Civil revision No. 122/2003 has been filed by the defendant seeking to challenge the order of the Rent Controller dated 27-3-2003 on the ground that he has recalled the earlier order dated 9-12-2002 in violation of statutory provisions and by going beyond his jurisdiction. It was- urged that instead of exercising powers under Section 151 of the code, the Rent Controlling Authority ought to have acted under the special provisions of Section 23 of the Act; that the Rent Controlling Authority is not empowered to review his own order and that he cannot exercise inherent powers under the provisions of Section 151 of the Code. In opposition to these submissions of the defendant in the suit (the applicant herein), the plaintiff in the suit (the non-applicant herein) has submitted that in the wake of a host of decisions of this Court, the Rent Controller has rightly recalled his earlier order in exercise of powers under Section 151 of the Code. ( 8 ) ON due consideration of rival submissions the Civil Revision No. 83/2003 deserves to be allowed. In a Gujarat High Court judgment by Hon'ble Shri S. B. Majumdar, j. (as his Lordship then was) in the matter of Parikh Amratlal Ramanlal Trustee and administrator of Sanskrit Pathshala Institution v. Rami Mafatlal Girdharilal, AIR 1983 noc 108 (Gujarat) it was held :"whether the general power of attorney holder of a party can be a competent witness on behalf of a party before a Judicial tribunal or authority has to be answered in the light of Section 118 of the Evidence Act and for answering that question the provisions of Order 3, Rules 1 and 2 (a) of the cpc are beside the point and can afford no guidance whatsoever. Giving deposition on oath as a power of attorney holder of a party is not a part of pleadings. It is a part of the procedure for proving a case by examining a competent witness. Who can be a competent witness is indicated by the Evidence Act alone as per Section 118. The power of attorney holder of a party, only on the ground that he holds the power of attorney, cannot be said to be in the category of persons who are incapable of being witnesses as provided by Section 118 of the Evidence Act. Whether such a power of attorney holder has personal knowledge about the matters in controversy may be a question which can be thrashed out by cross-examining him and if it is found that the power of attorney holder has no personal knowledge about the facts and controversy, the evidentiary value of his deposition may be whittled down, but that has nothing to do with the competence of such a power of attorney holder to depose before a Court or a judicial Tribunal as a competent witness. "the Court relied on a judgment of the Madras High Court, reported in AIR 1966 madras 14. "the Court relied on a judgment of the Madras High Court, reported in AIR 1966 madras 14. Thus, as per the judgment a general power of attorney holder of a party was not barred by Order 3, Rule 2 (a) of the Code 1908, to give evidence on behalf of that party. Similarly in a judgment of this Court in the matter of Shiv Narayan Soni v. Smt. Parwati bai Meshram, 1997 (1) Vidhi Bhasvar 280, hon'ble Shri D. M. Dharmadhikari, J. (as his lordship then was) was held that in a case for eviction under Section 23 (a) of the act, the landlady herself was not required to prove bona fide need and this could be deposed by her holder of power of attorney. ( 9 ) THE principle enunciated in the aforesaid judgments has also been espoused by a number of other judgments of this Court reported as (1) Kaluram v. Gendalal, 1995 (II) MPWN SN 43 at page 59. It appears that the Court did not agree with a judgment of the Privy Council with contrary view reported as Lal Durga Baksh Singh v. Rani Brij Raj kuar, AIR 1338 PC 40; (2) Kishore Kumar sharma (Dr.) v. Smt. Ram Dulari (1997 (II) mpjr SN 33 ). This case is based on a judgment of Hon'ble the Apex Court reported as purushottam Umedbhai and Co. v. Manilal and Sons, AIR 1961 SC 325 and also on the judgments of the High Courts, namely (i) swaran Lata v. Dev Kumar, (1991) 12 Punjab Legal Reports and Statutes 682, (ii) Anil jain v. Amar Nath, (1990) 7 Punjab Legal reports and Statutes 178 and (iii) Tulsiram v. Bank of Maharashtra, 1985 MPWN 310 . (3) Dharam Veer Sharma v. Bhagwati prasad, 1998 (I) MPJR 392 . In this case also the judgment of hon'ble the Apex Court in Purushottam umedbhai and Co. 's case ( AIR 1961 SC 325 ) (supra) has been relied upon and (4) virendra Kasliang Sharma v. Smt. Ramkatori Devi, 1998 (2) MPCj 410. (3) Dharam Veer Sharma v. Bhagwati prasad, 1998 (I) MPJR 392 . In this case also the judgment of hon'ble the Apex Court in Purushottam umedbhai and Co. 's case ( AIR 1961 SC 325 ) (supra) has been relied upon and (4) virendra Kasliang Sharma v. Smt. Ramkatori Devi, 1998 (2) MPCj 410. ( 10 ) HON'ble the Apex Court in the matter of T. C. Mathai v. District and Sessions judge, (1999) 3 SCC 614 : AIR 1999 SC 1385 , has held that the provisions of Power of Attorney Act, 1882 cannot override the specific provision of the statute which requires that a particular act should be done by a party in person and thus when the criminal Procedure Code requires the appearance of an accused in a Court, it is no compliance with it if a power of attorney holder appears for him. Unlike the provisions of the Cr. P. C. where a party is required to appear in person and in case of exemption from personal appearance, is required to be represented by a pleader, the cpc does not enjoin on a party to appear in person in all circumstances until the appearance is, dispensed with by the Court. Further in the case of P. Punhaiah v. Jeypore sugar Co. Ltd. , 1994 4 SCC 341 , Hon'ble the Apex Court has also held that except a few functions like quasi judicial or judicial functions, an agent/ attorney can perform all the functions including the consent to an act. To clarify the position further it Would be appropriate to reproduce the definition of words 'power of attorney' and 'evidence'. (The) Power of Attorney Act 1882 (amended by Act No. 55 of 1982) under Section 1-A defines the words 'power of attorney' as : "power of attorney includes any instrument empowering a specified person to act for and in the name of the person executing it. " similarly (The Indian) Stamp Act, 1899 defines the 'power of Attorney' as : "2 (21) "power of Attorney" includes any instrument (not chargeable with a fee under the law relating to court-fees for the time being in force) empowering a specified person to act for and in the name of the person executing it. " similarly (The Indian) Stamp Act, 1899 defines the 'power of Attorney' as : "2 (21) "power of Attorney" includes any instrument (not chargeable with a fee under the law relating to court-fees for the time being in force) empowering a specified person to act for and in the name of the person executing it. " that apart the Nagpur High Court in a judgment, reported in AIR 1937 Nagpur 65 (66) has explained the term "power of attorney" as : "power of attorney is an authority whereby one is set in turn, stead or place of another to act for him. " now coming to the expression 'evidence', section 3 of the Indian Evidence Act defines it as : "evidence" "evidence" means and Includes (1) all statements which the Court permits or requires to be made before it by witnesses, in relation to matters of fact under inquiry; such statements are called oral evidence; (2) all documents produced for the inspection of the Court; such documents are called documentary evidence. Thus a power of attorney holder, who virtually steps into shoes of a party can place materials in terms of the definition of 'evidence' as above, on behalf of that party, before a Court under the provisions of Order 3, Rule 2 of the Code and also under section 118 of the Evidence Act unless he stands disqualified for the reasons given in that section it self and further, admissibility of his evidence would be subject to rigorous procedure contained in Chapter X thereof. That apart, a bona fide requirement is also with reference to family and it can be proved by any member of the family. In the instant case old age of the plaintiff is a good ground that her son, the power of attorney holder, should have been allowed to tender evidence on her behalf. ( 11 ) THUS, in the premises discussed hereinabove and the decisions referred to, I do not agree with the ratio of the Rajasthan high Court's Judgment in Ramprasad's case (AIR 1998 Rajasthan 185) (supra ). ( 11 ) THUS, in the premises discussed hereinabove and the decisions referred to, I do not agree with the ratio of the Rajasthan high Court's Judgment in Ramprasad's case (AIR 1998 Rajasthan 185) (supra ). Accordingly the order dated 9-12-2002 impugned in the Civil Revision No. 83/2003 insofar as it relates to rejecting an affidavit of the plaintiffs son, being the power of attorney holder, to be treated as examination-in-chief of the plaintiff on account of her old age and health problem, is hereby set aside arid it is held that the power of attorney holder could do so on the plaintiffs behalf in terms of the power of attorney. ( 12 ) AS regards contentions of the parties in the Civil Revision No. 122/2003 as detailed in para 7 hereinabove, I would say that a Tribunal would be well within its domain under its parent statute to recall an order on a ground of mistake or fraud and the same cannot be viewed as an act of review. The Black's Law Dictionary (Vth Edition) defines the terms "recall a judgment" and "review" as under : "recall a judgment To revoke, cancel, vacate, or reverse a judgment for matters of fact; when it is annulled by reason of errors of law, it is said to be "reversed". "review" To re-examine judicially or administratively. A reconsideration; second view or examination; revision; consideration for purposes of correction. Used especially of the examination of a cause by an appellate Court or appellate administrative body. ( 13 ) IN the instant case, the impugned order being in nature of an order of 'recall' and not that of 'review' need not be tested under the provisions of Section 114 and order 47 of the Code. For the same reason, an argument that proceedings under Sections 23-A and 23-B of the Act are summary in nature and, therefore, cannot be reviewed also need not be considered. ( 14 ) THE Rent Controlling Authority has rightly relied on two decisions of this Court in support of exercise of inherent powers under Section 151 of the Code and its impugned order appears to be in line with dicta of Hon'ble the Apex Court in following judgments. ( 14 ) THE Rent Controlling Authority has rightly relied on two decisions of this Court in support of exercise of inherent powers under Section 151 of the Code and its impugned order appears to be in line with dicta of Hon'ble the Apex Court in following judgments. In the case of Indian Bank v. Satyam fires (India) Pvt. Ltd. , AIR 1996 SC 2592 , hon'ble the Apex Court while interpreting the powers of the Commissioner under Section 13 (iv) of the Consumer Protection Act, 1986 held that statutory Tribunals created under the Act have inherent powers to recall; its order passed under a mistake or fraud. Similarly, in the case of Budhia Swain v. Gopinath Deb, AIR 1999 SC 2089 , Hon'ble the Apex Court has summed up the legal position with regard to power to recall an order under Section 151 of the Code as under : civil Procedure Code, 1908 Section 151 Power to recall an order Scope of grounds Legal position summed up. HELD ; A Tribunal or a Court may recall an order earlier made by it if (i) the proceedings culminating into an order suffer from the inherent lack of jurisdiction and such lack of jurisdiction is patent, (ii) there exists fraud or collusion in obtaining the judgment, (iii) there has been a mistake of the court prejudicing a party, or (iv) a judgment was rendered in ignorance of the fact that a necessary party had not been served at all or had died and the estate was not represented. The power to recall a Judgment will not be exercised when the ground for reopening the proceedings or vacating the judgment was available to be pleaded in the original action but was not done or where a proper remedy in some other proceeding such as by way of appeal or revision was available but was not availed. The right to seek vacation of a judgment may be lost by waiver, estoppel or acquiescence. A distinction has to be drawn between lack of jurisdiction and a mere error in exercise of jurisdiction. The former strikes at the very root of the exercise and want of jurisdiction may vitiate the proceedings rendering them and the orders passed therein a nullity. A distinction has to be drawn between lack of jurisdiction and a mere error in exercise of jurisdiction. The former strikes at the very root of the exercise and want of jurisdiction may vitiate the proceedings rendering them and the orders passed therein a nullity. A mere error in exercise of jurisdiction does not vitiate the legality and validity of the proceedings and the order passed thereon unless set aside in the manner known to law by laying a challenge subject to the law of limitation. Further under the provisions of Section 29 of the Act and Rule 16 of the M. P. Accommodation Control Rules made thereunder, the Rent Controlling Authority can exercise the same powers as are vested in thecivil Court under the Code. On reproduction the aforesaid provisions of the Act read as under :"29. Powers of Rent Controlling Authority : (1) The Rent Controlling Authority shall have the same powers as are vested in a Civil Court under the Code of Civil Procedure, 1908 (V of 1908), in any proceeding before it in respect of the following matters, namely : (a) summoning and enforcing the attendance of any person and examining him on oath; (b) requiring the discovery and production of documents; (c) issuing commissions for the examination of witnesses; (d) any other matter which may be prescribed;and any proceeding before the Rent controlling Authority shall be deemed to be a judicial proceeding within the meaning of section 193 and Section 228 of the Indian penal Code, 1860 (XLV of 1860), and the rent Controlling Authority shall be deemed to be a Civil Court within the meaning of section 480 and Section 482 of the Code of criminal Procedure, 1898 (V of 1898 ). (2) For the purpose of holding any inquiry of discharging any duty under this Act, the Rent Controlling Authority may, (a) after giving not less than twenty-four hours' notice in writing, enter and inspect any accommodation at any time between sunrise and sunset; or (b) by written order, require any person to produce for his inspection, all such accounts, books or other documents relevant to the inquiry at such time and at such place as may be specified in the order. "further Rule 16 of the M. P. Accommodation Control Rules, 1966 reads like : chapter VI miscellaneous 16. "further Rule 16 of the M. P. Accommodation Control Rules, 1966 reads like : chapter VI miscellaneous 16. Code of Civil Procedure to be generally followed : In deciding any question relating to procedure not specifically provided by the Act and these rules, the Rent controlling Authority shall, as far as possible, be guided by the provisions contained in the Code of Civil Procedure, 1908. ( 15 ) IN the premises discussed herein-above there is no ambiguity that the Rent controlling Authority can exercise inherent powers under Section 151 of the Code and can recall its order passed under a mistake or fraud. In the instant case the Rent Controlling Authority by the order dated 9-12-2002 not only rejected affidavit of the plaintiffs son filed in the Court by way of the plaintiffs examination-in-chief, but in the said order committed a serious error by closing the entire evidence of the plaintiffs side. By the impugned order, the Authority has only corrected a mistake and rightly so and it is not a case where the authority has exercised a jurisdiction not vested in it by law or it has acted in exercise of its jurisdiction illegally or with material irregularity which needs to be corrected in exercise of powers of civil revision under Section 115 of the code. ( 16 ) IN view of the aforesaid discussion, i hold that the inherent powers under the code are available to the authority and the impugned order dated 27-3-2003 passed in exercise thereof does not appear to suffer from any infirmity which requires a correction. Hence, the Civil Revision No. 122/ 2003, being devoid of merits, is hereby dismissed. Petition dismissed. .