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2008 DIGILAW 230 (PNJ)

Basant Kumar v. Romesh Kumar Deora

2008-01-29

RANJIT SINGH

body2008
Judgment Ranjit Singh, J. 1. Romesh Kumar Deora, a NRI belonging to District Faridkot and presently resident of United States of America (USA), filed a rent petition under Section 13-B read with Section 18-A of the East Punjab Urban Rent Restriction Act, 1949 (for short, The Act) through his power of attorney holder Shri Aran Kumar. 2. The petitioner stated to be a tenant in the shop owned by the respondent from where his eviction was sought through the rent petition. The petitioner when put to notice, sought leave to defend the petition on the ground that certain valuation rights of the petitioner are to be determined by way of evidence besides pleading that the premises were not required for personal use of starting business by the respondent, as alleged. A ground of non-payment of rent was also urged, which, however, was not pressed. The Rent Controller, after considering rival contentions and after referring to number of judgments, dismissed the application filed by the petitioner, seeking leave to defend and ordered the ejectment of the petitioner. The said order is under challenge in the present revision petition. 3. It is pleaded before the Rent Controller that the respondent required the property for his personal use and for starting his business, which allegations were supported by an affidavit. The Rent Controller noticed that there was no positive plea, refuting the said allegations. The submission made by the petitioner is that landlord had not yet returned to India and otherwise was not covered by the definition of NRI as given in Section 2(d) of the Act. The Rent Controller, after referring few of the judgments, viewed that there was no requirement for the NRI landlord to permanently settle in India and as such to contest could not be granted on the grounds as were pleaded. Besides it was further submitted on behalf of the petitioner that this petition has been filed through a power of attorney holder and not by the respondent-NRI himself. The Rent Controller, however, found that it is well within the power of power of attorney holder to file a petition under Section 13-B of the Act. Reference is made to the case of Bhimappa and Ors. v. Allisab and Ors. The Rent Controller, however, found that it is well within the power of power of attorney holder to file a petition under Section 13-B of the Act. Reference is made to the case of Bhimappa and Ors. v. Allisab and Ors. 2006 (2) R.C.R. (Rent) 174 (Karnataka) to say that attorney holder can appear on behalf of the principal and he is a competent witness under Section 118 of the Evidence Act. In this case, it is further held that the plaintiff need not step into the witness box and can prove his case through the evidence of attorney holder, yet it may not be possible to say that the attorney is a competent witness on every aspect on behalf of the principal. 4. Mr. A.K. Chopra, learned senior counsel, would refer to the definition of NRI, as given in Section 2(dd), which means a person of Indian origin, who is either permanently or temporarily settled outside India. He would then refers to the contents of Section 13-B of the Act, which provides that where an owner is a NRI and returns to India and the residential building or a scheduled building etc. let out by him or her is required for his or her use, then he/she may apply to the Controller for immediate possession of such building. The contention of the learned Senior Counsel appears to be that for the purpose of Section 13-B of the Act, NRI must return to India and then should claim that he requires the building for his use. It may, however, be true, as noticed in some of the judgments relied upon by the Rent Controller that there is no requirement that he should also claim that he intends to settle down in India permanently. 5. This requirement can also be seen from another angle. Concededly, the respondent has not returned to India. Perhaps to circumvent this aspect, an affidavit has now been filed before this Court by Ramesh Kumar Deora to say that the respondent is in the evening of his life and wants to return to his native/birth place in Kotkapura to enjoy the company of his brothers and other relatives and so would require the shop in question to start his own business. Mr. Mr. Chopra would find fault with this even by saying that still, he is not returning to India and only has expressed his desire to return to his native/birth place at Kotkapura. 6. This aspect can otherwise be viewed from different angle. Though the NRI has himself filed an affidavit before this Court but there was no such affidavit on record of the Rent Controller. There the petition and the affidavit in the form of evidence were filed by power of attorney holder. In Janki Vashdeo Bhojwani v. Indusind Bank Ltd. (2005-2) 140 P.L.R. 1 (S.C.), Honble 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. The relevant observations of the Honble 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. Reference can also be made to Vidyadhar v. Manikrao and Anr. (1999) 3 S.C.C. 573, where it is observed: where a party to the suit does not appear in the witness box and states his own case on oath arid 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. 7. (1999) 3 S.C.C. 573, where it is observed: where a party to the suit does not appear in the witness box and states his own case on oath arid 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. 7. In the case of Janki Vashdeo Bhojwani (supra), the Honble 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 Rajsthan High Court in the case of Shmabhu Dutt Shastri v. State of Rajasthan (1986) 2 W.L.L. 713 and Ram Prasad v. Hari Narain A.I.R.1998 Rajasthan 185. In Shambhu Dutt Shastris 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 Parsads 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 8. It is observed by the Rent Controller, an attorney is competent to give evidence on behalf of the principal. This view can not be approved in view of the legal position as noted above. An attorney can give such evidence only on those aspects which are in his personal knowledge. Whether the NRI wishes to return to India and start his business would more appropriately be in the personal knowledge of the principal NRI and whatever information the attorney would have, would be a derivative one as told to him by the NRI-respondent. An attorney can give such evidence only on those aspects which are in his personal knowledge. Whether the NRI wishes to return to India and start his business would more appropriately be in the personal knowledge of the principal NRI and whatever information the attorney would have, would be a derivative one as told to him by the NRI-respondent. The Rent Controller, in my view, could not have validly decided about the application for leave to defend filed by the petitioner. It would be appropriate if the parties are given a chance to place proper material in this regard before the Rent Controller so that the application for leave to defend can be dealt with by the Rent Controller. 9. The impugned order can not be sustained in the eyes of law and the same is accordingly set aside. The case would go back to the Rent Controller, who would re-determine the entire matter and take appropriate decision on the application for leave to defend. The parties would be permitted to place relevant material in this regard before the Rent Controller so that the entire issue is properly adjudicated. The parties are directed to appear before the Rent Controller on 15.2.2008. The present revision petition is disposed of in the above terms.