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2015 DIGILAW 512 (MP)

Ghanshyam Chandil v. Ramkatori Agrawal

2015-04-28

SUJOY PAUL

body2015
JUDGMENT : Sujoy Paul, J. 1. This petition filed under Article 227 of the Constitution challenges the order of the court below dated 18.11.2014 passed in Civil Suit No. 30-A/2014, whereby the application of the petitioner/defendant preferred under Section 151 of the Code of Civil Procedure (Annexure P/6) is rejected by the court below. 2. Petitioner is tenant of respondent/plaintiff. The tenant filed a suit for eviction and recovery of rent. The respondent gave a power of attorney (POA) to her son on 25.2.2010 (Annexure P/5). On the strength of this POA, the POA holder/Dinesh Chand Agarwal submitted his affidavit under Order 18 Rule 4 CPC before the court below. The petitioner/defendant raised an objection against this affidavit. It is contended that the POA holder cannot be permitted to enter the witness box as a plaintiff. In other words, the said person cannot depose his statement by entering the shoes of the plaintiff. It is contended by Shri D.D. Bansal that whether or not rent is properly paid is a matter of fact which must be in the personal knowledge of the plaintiff. Her son cannot depose for the same. Similarly, the son/POA holder cannot state about bonafide requirement. It is further contended that impugned order of court below shows that the reason given is in favour of the petitioner but conclusion is against him. To elaborate, it is contended that in the operative portion of impugned order, the court below opined that POA holder in his personal capacity filed an affidavit and can be cross-examined but the court below has failed to see that in the present case the statement of POA holder is beyond the capacity of POA holder. Reliance is placed on (2005) 2 SCC 217 (Janki Vashdeo Bhojwani and another vs. Indusind Bank Ltd. and others); (2010) 10 SCC 512 (Man Kaur (Dead) by Lrs. vs. Hartar Singh Sangha); AIR 2014 SC 630 (A.C. Narayanan v. State of Maharashtra and another). 3. Per Contra, Shri Yogesh Singhal, learned counsel for the respondent, opposed the same. He supported the impugned order and contended that the court below has not committed any legal error in the light of following judgments:- 2003 (4) MPLJ 138 (Shanti Devi Agarwal vs. V.H. Lulla). 2005 (2) MPLJ 230 (Bashir vs. Smt. Hussain Bano). 2009 (2) MPLJ 156 (Sujata Sarkar vs. Anil Kumar Duttani). He supported the impugned order and contended that the court below has not committed any legal error in the light of following judgments:- 2003 (4) MPLJ 138 (Shanti Devi Agarwal vs. V.H. Lulla). 2005 (2) MPLJ 230 (Bashir vs. Smt. Hussain Bano). 2009 (2) MPLJ 156 (Sujata Sarkar vs. Anil Kumar Duttani). AIR 1999 SC 3089 (Smt. Ramkubai since deceased by L.Rs. and others vs. Hajarimal Dhokalchand Chandak and others). 4. I have heard learned counsel for the parties and perused the record. 5. In Smt. Ramkubai (supra), the Apex Court opined as under:- "10. We have already noted above that the ground of bona fide requirement of the landlady was accepted by the trial Court but it was negatived by the Appellate Court and the same was confirmed by the High Court. The Appellate Court was swayed away by the fact that the landlady herself did not come into the witness-box to support her claim. What is not appreciated by the Appellate Court is that her son Bhikchand who was also her G.P.A. holder and for whose benefit the business is to be set up, did come into the witness-box to support the case of personal requirement. The Appellate Court was of the view that the bonafide requirement is in the first place a state of mind and might be something more and that could be established only by the landlady. In all fairness to Mr. Mohta, we must note, that he conceded that reasoning of the Appellate Court could not be supported." A plain reading of this para shows that the Supreme Court made it clear that appellate Court has failed to appreciate that the son of plaintiff, who was also POA holder, entered the witness-box to support the case of personal requirement. The Apex Court set aside the judgment of appellate Court, which was affirmed by the High Court. 6. The bone of contention of Shri D.D. Bansal is based on Janki Vashdeo Bhojwani (supra). In the said case, the Apex Court opined as under:- "18. The aforesaid judgment was quoted with the approval in the case of Ram Prasad vs. Hari Narain and others, AIR 1998 Raj. 185 . 6. The bone of contention of Shri D.D. Bansal is based on Janki Vashdeo Bhojwani (supra). In the said case, the Apex Court opined as under:- "18. The aforesaid judgment was quoted with the approval in the case of Ram Prasad vs. Hari Narain and others, AIR 1998 Raj. 185 . It was held that the word "acts" used in Rule 2 of Order III of the Civil Procedure Code does not include the act of 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 Civil Procedure Code." This judgment was again considered by Supreme Court in Man Kaur (supra). After marshalling all the judgments on the said point, the Apex Court summarised the legal position in para 18. Para 18(c) reads as under:- "18(c) The attorney-holder cannot depose or give evidence in place of his principal for the acts done by the principal or transactions or dealings of the principal, of which principal alone has personal knowledge." 7. The judgment of Janki Vashdeo Bhojwani (supra) was considered by this Court in Bashir (supra). This Court opined that when POA holder is a member of family, he can depose on her behalf regarding the bona fide need. In my view also, the aspect of bona fide need is a thing which is known to most of the family members. Therefore, it cannot be said that deposition of POA holder on the point of bona fide need is beyond his personal knowledge. In other words, the son, who is POA holder in the present case, knows about the factual aspect of bona fide need. It is well within his personal knowledge and, hence, he can depose with regard to bona fide requirement. 8. The second question is whether the question of nonpayment of rent can be said to be a question of personal knowledge of plaintiff only. 9. In my view, it depends on the facts and circumstances of the case. It is well within his personal knowledge and, hence, he can depose with regard to bona fide requirement. 8. The second question is whether the question of nonpayment of rent can be said to be a question of personal knowledge of plaintiff only. 9. In my view, it depends on the facts and circumstances of the case. In a given case, it may happen that this factual aspect is also known to the POA holder being the son. For example, if mother is very old, illiterate or not very well educated or for other social reason not able to take care of everything, she can very well entrust the work of keeping the record of rent to her son. Putting it differently, there may be cases where the mother/father may entrust the work of maintaining the account of rent to their son. Therefore, as a thumb rule, it cannot be said that it can be the only plaintiff who may have personal knowledge about the question of nonpayment of rent. Thus, as per principle 18(c) laid down in Man Kaur (supra), I am unable to hold that principal alone may have personal knowledge in cases of non-payment of rent in eviction suit. This depends on the facts and circumstances of each case. If POA holder enters the witness- box, it is open to the defendant to ask relevant questions on the aspect of nonpayment of rent, personal knowledge about non-payment of rent etc. POA holder's statement can very well be demolished during cross-examination. 10. As analyzed above, it cannot be held as a straitjacket formula that in no case POA holder can depose about nonpayment of rent. Thus, in my view, the court below has taken a plausible view, which does not require any interference under supervisory jurisdiction of this Court under Article 227 of the Constitution. 11. Interference under Article 227 of the Constitution can be made If order is shown to be passed by a Court having no jurisdiction, it suffers from manifest procedural impropriety or perversity. Even an erroneous order is not required to be corrected in these proceedings under Article 227 of the Constitution. The basic purpose of exercising the said jurisdiction is to keep the courts below within the bounds of their authority. This view is taken in Shalini Shyam Shetty and another Vs. Rajendra Shankar Patil reported in (2010) 8 SCC 329 . Even an erroneous order is not required to be corrected in these proceedings under Article 227 of the Constitution. The basic purpose of exercising the said jurisdiction is to keep the courts below within the bounds of their authority. This view is taken in Shalini Shyam Shetty and another Vs. Rajendra Shankar Patil reported in (2010) 8 SCC 329 . No such ingredient is available in the present case, on which interference can be made. Petition sans substance and is hereby dismissed.