JUDGMENT Hon’ble P.K.S. Baghel, J.—This revision under Section 25 of the Provincial Small Cause Courts Act, 1887 (Act No. 9 of 1887) is directed against the order dated 23 October 2009 passed by the 4th Additional District Judge, Banda dismissing the restoration/recall application and application under Section 5 of the Limitation Act, 1963 in JSCC Suit. 2. Shorn of unnecessary details the brief facts are; the revisionist is the owner of a shop in Aliganj Banda. The sole opposite party is a tenant in the said shop at the rate of Rs. 500/- per month. The revisionist instituted a JSCC Suit in the Court of Judge, Small Causes, Banda being JSCC Suit No. 3 of 2006 for the ejectment and the for the recovery of arrears of rent. He also prayed for mesne profits during the pendency of the suit at the rate of Rs. 1,000/- per month. 3. The revisionist/plaintiff’s case was that he has purchased three shops from Sri Akhtar Husain Khan through registered sale deed dated 27 August 2001. The sole opposite party was occupying one shop on the date of sale, therefore, he became tenant of the revisionist/plaintiff from the date of sale. It was stated that the disputed shop was newly constructed in the year 1992 and the Uttar Pradesh Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972 (U.P. Act No. 13 of 1972) is not applicable. The sole opposite party did not pay the rent and as such the revisionist-plaintiff served a registered notice dated 30.12.2004 on the sole opposite party herein. 4. It is stated that the sole opposite party did not pay the rent from 1.9.2001. By the said notice, tenancy of the opposite party No. 1 was also determined; he was called upon to make the payment of the arrears of rent from 1.9.2001 within one month from the date of service of the notice and to deliver vacant possession of the shop after expiry of the period of notice. In spite of the service of the said notice the sole opposite party did not pay the rent and as such the aforesaid suit was filed. 5. In spite of the service of the said notice the sole opposite party did not pay the rent and as such the aforesaid suit was filed. 5. The revisionist had appointed one Sri Rama Shanker Chaubey as his power of attorney holder by a power of attorney dated 25 December 2005 authorizing him to appear and act in Courts, sign, verify and file plaints, necessary applications, affidavits, execution and doing necessary pairvi. This fact was mentioned in paragraph-9 of the plaint also. On the basis of the said power of attorney dated 25 December 2005 Sri Rama Shanker Chaubey was regularly doing pairvi in the case. 6. It is stated that in October, 2007 Sri Rama Shanker Chaubey fell ill in Bihar and he returned in January 2008. In the meantime on 16.11.2007 the suit was dismissed in default. Sri Rama Shanker Chaubey, the power of attorney holder of the revisionist, filed a restoration application alongwith the delay condonation application supported by the affidavit. The sole opposite party filed his objection. 7. Learned Additional District Judge has rejected the recall application under Section 5 of the Limitation Act on the ground that the restoration/recall application and application under Section 5 of the Limitation Act filed by the power of attorney holder, is not maintainable. 8. A counter-affidavit has been filed on behalf of the sole opposite party. The stand taken by the opposite party is that the suit was instituted by the revisionist under his own signature and the plaint was also signed by the plaintiff/revisionist Rahul Upadhyay himself, and the stand taken in the objection filed before the Court below has been reiterated. 9. I have heard Sri Wazahat Husain Khan, learned Senior Advocate assisted by Sri Gulrez Khan, learned Counsel for the revisionist and Sri Rakesh Kumar, learned Counsel for the opposite party. 10. The learned Counsel for the revisionist submits that the Court below has erred in rejecting the restoration application on wholly non-existent ground as it was mentioned in paragraph-9 of the plaintiff that he has appointed Sri Rama Shanker Chaubey as power of attorney holder for doing all kinds of pairvi in the suit. He further submits that sufficient cause was made out for the recall of the order as cogent reasons were given in the affidavit in support of Section 5 application for the non-appearance of the pairokar of the plaintiff. 11. He further submits that sufficient cause was made out for the recall of the order as cogent reasons were given in the affidavit in support of Section 5 application for the non-appearance of the pairokar of the plaintiff. 11. Sri Khan, lastly, urged that there is no prohibition under the law that a power of attorney holder cannot move the application for restoration and it was mandatory that the plaintiff himself should file restoration application and appear before the Court. He further submitted that it was the plaintiff’s suit for the ejectment and recovery of arrears of rent, therefore, he would not get any benefit by adopting any delaying tactic as alleged by the opposite party. 12. Learned Counsel for the opposite party submits that the power of attorney holder deliberately did not appear before the Court below to linger on the proceedings. He further submitted that the plaintiff has not given any reason for his absence. 13. I have considered the submissions of learned Counsel for the respective parties and perused the record. 14. It is not disputed by the sole opposite party that the plaintiff-revisionist has executed or made power of attorney in favour of Sri Rama Shanker Chaubey. This fact has not been denied in the objection filed before the Court below or in the counter-affidavit in the instant revision, as well. 15. From a perusal of the plaint also, it is evident that this fact was mentioned by the plaintiff. There is no bar that power of attorney holder cannot file an application or affidavit on behalf of the person who has authorized him to do the pairvi. Learned Counsel for the opposite party has not pointed out any provision of law or the authority of any Court to substantiate his submission. 16. The Order III Rule 1 CPC deals with the appearance etc. by recognized agents or pleaders. For the sake of convenience the Order III Rule 1 CPC is extracted as under; “ORDER III RECOGNIZED AGENTS AND PLEADERS 1. 16. The Order III Rule 1 CPC deals with the appearance etc. by recognized agents or pleaders. For the sake of convenience the Order III Rule 1 CPC is extracted as under; “ORDER III RECOGNIZED AGENTS AND PLEADERS 1. Appearances, etc., may be in person, by recognized agent or by pleader.——Any appearance, application or act in or to any Court, required or authorized by law to be made or done by a party in such Court, may, except where otherwise expressly provided by any law for the time being in force, be made or done by the party in person, or by his recognized agent, or by a pleader 1 [Subs. By Act 22 of 1926, Sec. 2, for “duly appointed to act”.] [appearing, applying or acting, as the case may be,] on his behalf: Provided that any such appearance shall, if the Court so directs, be made by the party in person.” 17. Rule 1 of Order III CPC permits the holder of Power of Attorney to do necessary acts on behalf of the person, who has authorized. The word “act” has been considered by the Rajasthan High Court in Shambhu Dutt Shastri v. State of Rajasthan, (1986) 2 WLN 713 (Raj) and in Ram Prasad v. Hari Narain, AIR 1998 Raj 185 . Those two judgements came to be considered by the Supreme Court in the case of Man Kaur (Dead) By Lrs. v. Hartar Singh Sangha, (2010) 10 SCC 512 . The Supreme Court has affirmed the decision of the Rajasthan High Court passed in Shambhu Dutt Shastri (supra) and Ram Prasad (supra). The relevant part of Man Kaur (supra) reads as under; “15. We may next refer to two decisions of this Court which considered the evidentiary value of the depositions of the attorney-holders. This Court in Janki Vashdeo Bhojwani v. Indusind Bank Ltd., (2005) 2 SCC 217 , held as follows: (SCC pp. 222-24, paras 13, 17-18 & 21) “13. Order 3 Rules 1 and 2 CPC empower the holder of power of attorney to ‘’act’ on behalf of the principal. In our view the word ‘’acts’ employed in Order 3 Rules 1 and 2 CPC confines only to 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 our view the word ‘’acts’ employed in Order 3 Rules 1 and 2 CPC confines only to 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 of 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 of which only the principal can have a personal knowledge and in respect of which the principal is entitled to be cross-examined. * * * 17. ... In Shambhu Dutt Shastri v. 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. 18. The aforesaid judgment was quoted with approval in Ram Prasad v. 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 be 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. * * * 21. 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. * * * 21. We hold that the view taken by the Rajasthan High Court in Shambhu Dutt Shastri v. State of Rajasthan, (1986) 2 WLN 713 (Raj), followed and reiterated in Ram Prasad v. Hari Narain, AIR 1998 Raj 185 , is the correct view.” (emphasis supplied)” 18. It is a trite law that the matter should be heard on merit and not to shut out the hearing, as has been observed by the Supreme Court in the case of Ramji Dass and others v. Mohan Singh, 1978 ARC 496. In the said case a restoration application was filed under Order IX Rule 13 of the Code of Civil Procedure, 1908 to set aside an ex parte decree passed eight years ago. While setting aside the judgement and decree of the High Court the Supreme Court observed as under; “........After having heard counsel, we are inclined to the view that, as far as possible, Court’s discretion should be exercised in favour of hearing and not to shut out hearing. Therefore, we think that the order of the High Court should not have been passed in the interests of Justice which always informs the power under Section 115 C.P.C.........” 19. It is well-settled that the procedural law is handmaid to felicitate the end of justice and not to subvert it. The Supreme Court in the case of Salem Advocate Bar Association, T.N. v. Union of India, (2005) 6 SCC 344 , has observed as under; “20. The use of the word “shall” in Order 8 Rule 1 by itself is not conclusive to determine whether the provision is mandatory or directory. We have to ascertain the object which is required to be served by this provision and its design and context in which it is enacted. The use of the word “shall” is ordinarily indicative of mandatory nature of the provision but having regard to the context in which it is used or having regard to the intention of the legislation, the same can be construed as directory. The rule in question has to advance the cause of justice and not to defeat it. The rules of procedure are made to advance the cause of justice and not to defeat it. The rule in question has to advance the cause of justice and not to defeat it. The rules of procedure are made to advance the cause of justice and not to defeat it. Construction of the rule or procedure which promotes justice and prevents miscarriage has to be preferred. The rules of procedure are the handmaid of justice and not its mistress. In the present context, the strict interpretation would defeat justice.” 20. In view of the said fact the order of the Revisional Court dated 23.10.2009 is liable to be set aside and it is accordingly set aside. The matter is remitted to pass a fresh order in the light of the observations made hereinabove. 21. Thus, the revision is allowed. 22. No order as to costs. ———— JUDGMENT Hon’ble P.K.S. Baghel, J.—This revision under Section 25 of the Provincial Small Cause Courts Act, 1887 (Act No. 9 of 1887) is directed against the order dated 23 October 2009 passed by the 4th Additional District Judge, Banda dismissing the restoration/recall application and application under Section 5 of the Limitation Act, 1963 in JSCC Suit. 2. Shorn of unnecessary details the brief facts are; the revisionist is the owner of a shop in Aliganj Banda. The sole opposite party is a tenant in the said shop at the rate of Rs. 500/- per month. The revisionist instituted a JSCC Suit in the Court of Judge, Small Causes, Banda being JSCC Suit No. 3 of 2006 for the ejectment and the for the recovery of arrears of rent. He also prayed for mesne profits during the pendency of the suit at the rate of Rs. 1,000/- per month. 3. The revisionist/plaintiff’s case was that he has purchased three shops from Sri Akhtar Husain Khan through registered sale deed dated 27 August 2001. The sole opposite party was occupying one shop on the date of sale, therefore, he became tenant of the revisionist/plaintiff from the date of sale. It was stated that the disputed shop was newly constructed in the year 1992 and the Uttar Pradesh Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972 (U.P. Act No. 13 of 1972) is not applicable. The sole opposite party did not pay the rent and as such the revisionist-plaintiff served a registered notice dated 30.12.2004 on the sole opposite party herein. 4. The sole opposite party did not pay the rent and as such the revisionist-plaintiff served a registered notice dated 30.12.2004 on the sole opposite party herein. 4. It is stated that the sole opposite party did not pay the rent from 1.9.2001. By the said notice, tenancy of the opposite party No. 1 was also determined; he was called upon to make the payment of the arrears of rent from 1.9.2001 within one month from the date of service of the notice and to deliver vacant possession of the shop after expiry of the period of notice. In spite of the service of the said notice the sole opposite party did not pay the rent and as such the aforesaid suit was filed. 5. The revisionist had appointed one Sri Rama Shanker Chaubey as his power of attorney holder by a power of attorney dated 25 December 2005 authorizing him to appear and act in Courts, sign, verify and file plaints, necessary applications, affidavits, execution and doing necessary pairvi. This fact was mentioned in paragraph-9 of the plaint also. On the basis of the said power of attorney dated 25 December 2005 Sri Rama Shanker Chaubey was regularly doing pairvi in the case. 6. It is stated that in October, 2007 Sri Rama Shanker Chaubey fell ill in Bihar and he returned in January 2008. In the meantime on 16.11.2007 the suit was dismissed in default. Sri Rama Shanker Chaubey, the power of attorney holder of the revisionist, filed a restoration application alongwith the delay condonation application supported by the affidavit. The sole opposite party filed his objection. 7. Learned Additional District Judge has rejected the recall application under Section 5 of the Limitation Act on the ground that the restoration/recall application and application under Section 5 of the Limitation Act filed by the power of attorney holder, is not maintainable. 8. A counter-affidavit has been filed on behalf of the sole opposite party. The stand taken by the opposite party is that the suit was instituted by the revisionist under his own signature and the plaint was also signed by the plaintiff/revisionist Rahul Upadhyay himself, and the stand taken in the objection filed before the Court below has been reiterated. 9. A counter-affidavit has been filed on behalf of the sole opposite party. The stand taken by the opposite party is that the suit was instituted by the revisionist under his own signature and the plaint was also signed by the plaintiff/revisionist Rahul Upadhyay himself, and the stand taken in the objection filed before the Court below has been reiterated. 9. I have heard Sri Wazahat Husain Khan, learned Senior Advocate assisted by Sri Gulrez Khan, learned Counsel for the revisionist and Sri Rakesh Kumar, learned Counsel for the opposite party. 10. The learned Counsel for the revisionist submits that the Court below has erred in rejecting the restoration application on wholly non-existent ground as it was mentioned in paragraph-9 of the plaintiff that he has appointed Sri Rama Shanker Chaubey as power of attorney holder for doing all kinds of pairvi in the suit. He further submits that sufficient cause was made out for the recall of the order as cogent reasons were given in the affidavit in support of Section 5 application for the non-appearance of the pairokar of the plaintiff. 11. Sri Khan, lastly, urged that there is no prohibition under the law that a power of attorney holder cannot move the application for restoration and it was mandatory that the plaintiff himself should file restoration application and appear before the Court. He further submitted that it was the plaintiff’s suit for the ejectment and recovery of arrears of rent, therefore, he would not get any benefit by adopting any delaying tactic as alleged by the opposite party. 12. Learned Counsel for the opposite party submits that the power of attorney holder deliberately did not appear before the Court below to linger on the proceedings. He further submitted that the plaintiff has not given any reason for his absence. 13. I have considered the submissions of learned Counsel for the respective parties and perused the record. 14. It is not disputed by the sole opposite party that the plaintiff-revisionist has executed or made power of attorney in favour of Sri Rama Shanker Chaubey. This fact has not been denied in the objection filed before the Court below or in the counter-affidavit in the instant revision, as well. 15. From a perusal of the plaint also, it is evident that this fact was mentioned by the plaintiff. This fact has not been denied in the objection filed before the Court below or in the counter-affidavit in the instant revision, as well. 15. From a perusal of the plaint also, it is evident that this fact was mentioned by the plaintiff. There is no bar that power of attorney holder cannot file an application or affidavit on behalf of the person who has authorized him to do the pairvi. Learned Counsel for the opposite party has not pointed out any provision of law or the authority of any Court to substantiate his submission. 16. The Order III Rule 1 CPC deals with the appearance etc. by recognized agents or pleaders. For the sake of convenience the Order III Rule 1 CPC is extracted as under; “ORDER III RECOGNIZED AGENTS AND PLEADERS 1. Appearances, etc., may be in person, by recognized agent or by pleader.——Any appearance, application or act in or to any Court, required or authorized by law to be made or done by a party in such Court, may, except where otherwise expressly provided by any law for the time being in force, be made or done by the party in person, or by his recognized agent, or by a pleader 1 [Subs. By Act 22 of 1926, Sec. 2, for “duly appointed to act”.] [appearing, applying or acting, as the case may be,] on his behalf: Provided that any such appearance shall, if the Court so directs, be made by the party in person.” 17. Rule 1 of Order III CPC permits the holder of Power of Attorney to do necessary acts on behalf of the person, who has authorized. The word “act” has been considered by the Rajasthan High Court in Shambhu Dutt Shastri v. State of Rajasthan, (1986) 2 WLN 713 (Raj) and in Ram Prasad v. Hari Narain, AIR 1998 Raj 185 . Those two judgements came to be considered by the Supreme Court in the case of Man Kaur (Dead) By Lrs. v. Hartar Singh Sangha, (2010) 10 SCC 512 . The Supreme Court has affirmed the decision of the Rajasthan High Court passed in Shambhu Dutt Shastri (supra) and Ram Prasad (supra). The relevant part of Man Kaur (supra) reads as under; “15. We may next refer to two decisions of this Court which considered the evidentiary value of the depositions of the attorney-holders. The Supreme Court has affirmed the decision of the Rajasthan High Court passed in Shambhu Dutt Shastri (supra) and Ram Prasad (supra). The relevant part of Man Kaur (supra) reads as under; “15. We may next refer to two decisions of this Court which considered the evidentiary value of the depositions of the attorney-holders. This Court in Janki Vashdeo Bhojwani v. Indusind Bank Ltd., (2005) 2 SCC 217 , held as follows: (SCC pp. 222-24, paras 13, 17-18 & 21) “13. Order 3 Rules 1 and 2 CPC empower the holder of power of attorney to ‘’act’ on behalf of the principal. In our view the word ‘’acts’ employed in Order 3 Rules 1 and 2 CPC confines only to 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 of 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 of which only the principal can have a personal knowledge and in respect of which the principal is entitled to be cross-examined. * * * 17. ... In Shambhu Dutt Shastri v. 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. 18. The aforesaid judgment was quoted with approval in Ram Prasad v. 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. 18. The aforesaid judgment was quoted with approval in Ram Prasad v. 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 be 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. * * * 21. We hold that the view taken by the Rajasthan High Court in Shambhu Dutt Shastri v. State of Rajasthan, (1986) 2 WLN 713 (Raj), followed and reiterated in Ram Prasad v. Hari Narain, AIR 1998 Raj 185 , is the correct view.” (emphasis supplied)” 18. It is a trite law that the matter should be heard on merit and not to shut out the hearing, as has been observed by the Supreme Court in the case of Ramji Dass and others v. Mohan Singh, 1978 ARC 496. In the said case a restoration application was filed under Order IX Rule 13 of the Code of Civil Procedure, 1908 to set aside an ex parte decree passed eight years ago. While setting aside the judgement and decree of the High Court the Supreme Court observed as under; “........After having heard counsel, we are inclined to the view that, as far as possible, Court’s discretion should be exercised in favour of hearing and not to shut out hearing. Therefore, we think that the order of the High Court should not have been passed in the interests of Justice which always informs the power under Section 115 C.P.C.........” 19. It is well-settled that the procedural law is handmaid to felicitate the end of justice and not to subvert it. The Supreme Court in the case of Salem Advocate Bar Association, T.N. v. Union of India, (2005) 6 SCC 344 , has observed as under; “20. The use of the word “shall” in Order 8 Rule 1 by itself is not conclusive to determine whether the provision is mandatory or directory. The Supreme Court in the case of Salem Advocate Bar Association, T.N. v. Union of India, (2005) 6 SCC 344 , has observed as under; “20. The use of the word “shall” in Order 8 Rule 1 by itself is not conclusive to determine whether the provision is mandatory or directory. We have to ascertain the object which is required to be served by this provision and its design and context in which it is enacted. The use of the word “shall” is ordinarily indicative of mandatory nature of the provision but having regard to the context in which it is used or having regard to the intention of the legislation, the same can be construed as directory. The rule in question has to advance the cause of justice and not to defeat it. The rules of procedure are made to advance the cause of justice and not to defeat it. Construction of the rule or procedure which promotes justice and prevents miscarriage has to be preferred. The rules of procedure are the handmaid of justice and not its mistress. In the present context, the strict interpretation would defeat justice.” 20. In view of the said fact the order of the Revisional Court dated 23.10.2009 is liable to be set aside and it is accordingly set aside. The matter is remitted to pass a fresh order in the light of the observations made hereinabove. 21. Thus, the revision is allowed. 22. No order as to costs. ————