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2016 DIGILAW 919 (HP)

Bimla Devi v. Onkar Nath

2016-05-25

SURESHWAR THAKUR

body2016
JUDGMENT : Sureshwar Thakur, J. The plaintiff/petitioner herein instituted a suit before the learned trial Court against the defendant/respondent herein for recovery of Rs.18,000/- amount whereof constituted the arrears of rent towards the suit premises. The suit came to be dismissed by the learned trial Court. An appeal there from stood preferred by the plaintiff/petitioner herein before the learned first Appellate Court which also suffered a similar fate. Standing aggrieved by the concurrently recorded findings of facts against her by both the learned Courts below, the petitioner herein/plaintiff has instituted the instant petition before this Court for assailing them. 2. The brief facts of the case are that the plaintiff is owner of six shops situate in Village and Post Office Milwan, Tehsil Indora, District Kangra, H.P. On 28.8.1998, the defendant entered into an agreement with the plaintiff to take on rent three shops @ Rs.500/- per month per shop, total rent amounting to Rs.1500/- per month for running his business of Hotel. The tenancy of the aforesaid shops is claimed to be monthly commencing from 1.8.1998 and the defendant is legally bound to pay the rent of the aforesaid three shops on monthly rent basis to the plaintiff. It has been averred that the defendant has not paid even a single penny to the plaintiff w.e.f. 1.9.1998 to 31.8.1999, as such, he is in the arrears of rent to the tune of Rs.18,000/-. Hence the instant suit. 3. The defendant has contested the suit and filed a written statement wherein he has taken preliminary objections inter alia, maintainability, estoppel, cause of action and locus standi. On merits, it is admitted that on 28.8.1998, the defendant entered into an agreement with the plaintiff and three shops were taken on rent w.e.f. 1.9.1998 @ Rs.500/- per month of each shop and the total rent was fixed at the rate of 1500/- per month. It is also admitted that the tenancy of the aforesaid shops started from 1.9.1998. It is denied that the defendant has not made any payment of rent. It is averred that the defendant had made payment of rent regularly upto January, 1999. However, thereafter, the plaintiff along with her husband did not allow the defendant to run the shop and even attacked on the defendant and a case was also registered against the husband of the plaintiff on 10.2.1999 under Section 307 of the IPC. It is averred that the defendant had made payment of rent regularly upto January, 1999. However, thereafter, the plaintiff along with her husband did not allow the defendant to run the shop and even attacked on the defendant and a case was also registered against the husband of the plaintiff on 10.2.1999 under Section 307 of the IPC. As per the defendant, he asked the plaintiff to issue the receipts of payment of rent, but she did not issue the same and denied the issuance of receipts on the ground that there is a dispute between the parties. It is averred that the plaintiff has also rented out another three shops to the defendant for running a business of Hotel. The plaintiff has also received through her husband an amount of Rs.80,000/- as advance on 28.8.1998. The said amount is also lying with the plaintiff and at the most rent can be adjusted against that amount, as such, the defendant is yet to recover his balanced amount. It is averred that the defendant had paid the rent to the plaintiff upto January, 1999. According to the defendant, the plaintiff has no cause of action. 4. The plaintiff/petitioner filed replication to the written statement of the defendant/respondent, wherein, she denied the contents of the written statement and reaffirmed and re-asserted the averments, made in the plaint. 5. On the pleadings of the parties, the learned trial Court struck following issues inter-se the parties in contest:- 1. Whether the plaintiff is entitled to recover the suit amount, as alleged? OPP. 2. Whether the suit is not maintainable? OPD 3. Whether the plaintiff is estopped by his act and conduct to file the present suit? OPD 4. Relief. 6. On an appraisal of the evidence, adduced before the learned trial Court, the learned trial Court dismissed the suit of the petitioner herein/plaintiff. In an appeal, preferred therefore before the learned first Appellate Court by the appellant/plaintiff, the learned first Appellate Court dismissed the appeal. 7. Now the plaintiff/appellant has instituted the instant petition before this Court assailing the concurrently recorded findings of both the learned courts below. 8. In an appeal, preferred therefore before the learned first Appellate Court by the appellant/plaintiff, the learned first Appellate Court dismissed the appeal. 7. Now the plaintiff/appellant has instituted the instant petition before this Court assailing the concurrently recorded findings of both the learned courts below. 8. The learned trial Court as well as the learned First Appellate Court had concurrently held of the averments constituted in the plaint against the defendant/respondent herein standing not proved by the plaintiff/petitioner herein by hers stepping into the witness box rather when the said averments stood proven by her General Power of Attorney, precluding hence both the learned Courts below from theirs reading the deposition of the General Power of Attorney of the plaintiff/petitioner herein wherein he had testified in proof of the averments constituted in the plaint. The recording of the aforesaid inference by both the learned Courts below stood anvil led upon a judgment of this Court reported in Roshan Lal versus Krishan Dass, S.L.J. 2002, Vol.I, page 261 (H.P.). However, reliance by both the learned courts below upon the rendition of this Court would not be grossly inapt unless there occurred a manifestation of Kundan Lal in his capacity as attorney of the plaintiff had executed a rent note qua the suit premises, with the defendant/respondent. Only in the event of a display occurring in the rent note executed qua the suit premises of Kundan Lal executing it with the defendant/respondent while his standing authorized by the plaintiff/petitioner under an apposite document executed by her would lend empowerment to him to depose on behalf of the petitioner/plaintiff in substantiation of the averments constituted in the plaint. However, when the rent note executed qua the suit premises by the purported general power of attorney of the plaintiff/petitioner herein stands neither executed by him under an authorization foisted upon him under an apposite document executed by the plaintiff/petitioner herein nor when it stands proven in accordance with law necessarily hence it was open to its being unreadable in evidence also its being discardable as tenably done by both the learned courts below. Though, the learned counsel appearing for the plaintiff/petitioner placed reliance upon a judgment of the Hon'ble Apex Court reported in Janki Vashdeo Bhojwani and another Vs. Though, the learned counsel appearing for the plaintiff/petitioner placed reliance upon a judgment of the Hon'ble Apex Court reported in Janki Vashdeo Bhojwani and another Vs. Indusind Bank Ltd. and another, AIR 2005 SC 439 , the relevant paragraph whereof stands extracted hereinafter, to contend before this Court of the General Power of Attorney holding authorization to depose in proof of the averments constituted in the plaint only when the apposite averments embody acts personally performed by him whereupon he erects an argument of with the rent note qua the suit premises standing executed by the General Power of Attorney of the plaintiff/petitioner on the latter's behalf hence with his on behalf of his principal executing the apposite rent note qua the suit premises he thereupon stood empowered to depose in substantiation of the apposite averments qua it constituted in the plaint against the defendant/respondent. “Order 3, Rr.1 and 2 empowers the holder of power of attorney to 'act' on behalf of the principal. The word 'act' employed in O.3, Rr.1 and 2, 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. 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. The term 'acts' would not include deposing in place and instead of the principal. 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 which only the principal can have a personal knowledge and in respect of which the principal is entitled to be cross-examined.” The above argument of the learned counsel appearing for the petitioner/plaintiff stands to suffer rejection in the face of this Court concluding with formidability of, with the rent note purportedly executed qua the suit premises by Kundan Lal, GPA of the plaintiff/petitioner herein whereupon he contends of hence with the General Power of Attorney under an apposite authorization purveyed to him by the plaintiff/petitioner herein his in pursuance thereof his performing on behalf of the plaintiff/petitioner the apposite act of his executing the apposite rent deed qua the suit premises, he hence qua the apposite factum probandum held personal knowledge, facilitating him to hence depose as a witness on her behalf in proof of the apposite averments qua it constituted in the plaint, with its standing not proved in accordance with law rendered it hence unreadable besides discardable. Furthermore, the original of the rent note though is placed on record yet, a perusal thereof discloses of its standing scribed in Punjabi. Neither its authentic Hindi translation has been placed on record nor it stands proved by any proficient translator. Consequently, for the aforesaid infirmities, besides with its remaining unexhibited precludes this Court to hold of its constituting an authorization bestowed upon him by the plaintiff in pursuance whereof he on her behalf executed an apposite rent deed qua the suit premises. Neither its authentic Hindi translation has been placed on record nor it stands proved by any proficient translator. Consequently, for the aforesaid infirmities, besides with its remaining unexhibited precludes this Court to hold of its constituting an authorization bestowed upon him by the plaintiff in pursuance whereof he on her behalf executed an apposite rent deed qua the suit premises. Also this Court cannot hence conclude of the execution of the apposite rent note by Kundan Lal was in furtherance of an authorization purveyed to him under an apposite document executed in his favour by the plaintiff/petitioner herein nor this Court would hold of his holding any empowerment to depose in substantiation of the averments constituted in the plaint rather this Court holds of the plaintiff standing enjoined to depose in substantiation of the averments constituted in the plaint whereas hers omitting to depose in substantiation thereof, the verdicts concurrently recorded against her by both the learned Courts below are to hold tenability in law. Even if, a Hindi translation by a proficient translator of the apposite rent note scribed in Punjabi is unavailable yet with there occurring a display therein of Kundan Lal while his proclaiming therein of his holding title to the suit premises his executing it qua the suit premises contrarily negates the factum of the plaintiff/petitioner holding title to the suit property in capacity whereof she has instituted the suit against the defendant/respondent hence also concomitantly rendering her suit to be misconstituted. 9. The above discussion unfolds the fact that the conclusions as arrived by the learned first Appellate Court as also by the learned trial Court are based upon a proper and mature appreciation of evidence on record. While rendering the findings, the learned first Appellate Court as well as the learned trial Court have not excluded germane and apposite material from consideration. 10. In view of above discussion, the instant petition is dismissed. In sequel, the judgments and decrees rendered by both the learned Courts below are maintained and affirmed. All pending applications also stand disposed of. No order as to costs. Records be sent back forthwith.