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2024 DIGILAW 1897 (ALL)

Rajeev Mittal v. Sushila Devi

2024-08-14

SARAL SRIVASTAVA

body2024
JUDGMENT : Saral Srivastava, J. 1. Heard Sri Syed Mohammad Abbas Abdy, learned counsel for the petitioner, and Sri Atul Dayal, learned Senior Counsel assisted by Sri Pawan Kumar Singh, learned counsel for the respondents. 2. The petitioner through present petition under Article 227 of the Constitution of India has assailed the judgment and decree dated 22.05.2024 passed by District Judge, Bulandshahar in SCC Revision No.96 of 2023 by which the revisional Court has decreed the suit of the plaintiffs/respondents for eviction of the petitioner/tenant. 3. The facts, in brief, are that the respondents/plaintiffs instituted a SCC Suit No.31 of 2015 for eviction of the petitioner/tenant on the ground that the petitioner/tenant is a tenant of a shop situated in Civil Lines opposite Harish Hospital, Kala Aam, Bulandshahar on the rent of Rs.3750/- per month. It is further stated that Uttar Pradesh Act No.13 of 1972 does not apply to the said shop. It is further stated that the notice dated 25.08.2015 terminating the tenancy of the petitioner/tenant under Section 106 of the Transfer of Property Act was served upon the petitioner. The petitioner gave the reply to the aforesaid notice on 10.09.2015. Accordingly, it is stated that after the expiry of the period of notice dated 25.08.2015 for vacating the premises to the petitioner/tenant, the tenancy of the petitioner/tenant came to an end, and the status of the petitioner thereafter is that of an unauthorised occupant. 4. The aforesaid suit was contested by the petitioner by filing a written statement wherein he admitted in paragraph No.2 that he has been the tenant of the shop in question since 1989. Paragraph No.2 of the written statement is reproduced below : ^^2- ;g fd okn&i= dh /kkjk&2 ftl rjg ls rgjhj gS] Lohdkj ugha gSA D;ksafd çfroknh o"kZ 1989 ls mDr ç'uxr nqdku esa fdjk;snkj pyk vk jgk gSA** 5. He took several other pleas in the written statement disputing the correctness of the averments made in the plaint. 6. The trial court based on the pleading between the parties framed ten issues. However, in the instant case, the relevant issues are only issue Nos.1 & 2. Issue No.1 was whether the plaintiffs/respondents were the owner and landlord of the shop; issue No.2 was whether there was a relationship of landlord and tenant between the plaintiffs/respondents and the petitioner/tenant. 6. The trial court based on the pleading between the parties framed ten issues. However, in the instant case, the relevant issues are only issue Nos.1 & 2. Issue No.1 was whether the plaintiffs/respondents were the owner and landlord of the shop; issue No.2 was whether there was a relationship of landlord and tenant between the plaintiffs/respondents and the petitioner/tenant. Issue No.7 is also relevant in the context of the present case which was whether the tenancy of the petitioner/tenant was terminated by notice dated 25.08.2015. 7. The trial court decided the issue Nos.1 & 2 jointly and returned a finding that the plaintiffs/respondents failed to prove that plaintiff/respondent No.1 is the landlady of the shop in question since she did not appear to prove the plaint case. The trial court decided issue No.7 also against the respondent landlord holding that the plaintiffs have failed to prove the notice dated 25.08.2015 on the ground that the plaintiff/respondent No.1 did not appear in the witness box to prove the notice. 8. The respondents preferred SCC Revision No.96 of 2023 which was allowed by the revisional court on the ground that the trial court has erred in law in concluding that the plaintiffs/respondents failed to prove their case because the plaintiff/respondent No.1 who is the landlady of the shop in question did not appear to prove the case. The revisional court held that the case was proved by respondent no.2 who is the son of plaintiff/respondent No.1. In recording the aforesaid finding, the revisional court has placed reliance upon the judgment of this Court in the case of Syed Hasrat Ali & another Vs. Nazim Abbas and others, 2008 (1) ARC 532. 9. Challenging the aforesaid order, learned counsel for the petitioner has raised two-fold contention. The first contention advanced by learned counsel for the petitioner is that the revisional court has committed manifest error of law and has acted beyond jurisdiction in decreeing the suit inasmuch as if the revisional court was of the view that the trial court has erred in law or has committed manifest illegality in deciding the suit, the revisional court after setting aside the order of the trial court should have remanded the matter to the trial court. It is contended that the revisional court has no power to substitute its finding in place of the finding of fact recorded by the trial court. It is contended that the revisional court has no power to substitute its finding in place of the finding of fact recorded by the trial court. In this respect, learned counsel for the petitioner has placed reliance upon the judgment of Apex Court in the cases of Hindustan Petroleum Corporation Limited Vs. Dilbahar Singh, 2014 (9) SCC 78 , Naraini Devi (Smt.) Vs. IInd Additional District Judge, Agra, 2005 (1) ARC 468 & Km. Damyanti Manoocha Vs. Additional District Judge and others, 2015 (4) AWC 4057 (L.B.). 10. The second contention advanced by learned counsel for the petitioner is that admittedly in the present case, respondent No.1 who is the landlady did not appear to prove her case, therefore, the trial court has rightly held that the plaintiffs/respondents have failed to prove their case. He submits that the fact whether the plaintiff/respondent No.1 is the landlady of the shop in question and whether there was relationship of landlord and tenant between plaintiff/respondent No.1 is in the knowledge of the plaintiff/respondent no.1, therefore, this fact could have been proved by respondent No.1 and not by anybody else, therefore, the testimony of PW-1 (respondent No.2) who is the son of respondent No.1 could not be relied upon to prove the plaint case. In this respect, he has placed reliance upon the judgment reported in Vidhyadhar Vs. Mankikrao & Another 1999 (3) SCC 573 , Janki Vashdeo Bhojwani and another Vs. Indusind Bank Limited and another, 2005 (2) SCC 217 & Harmindal Pathak vs. Sankta Singh, 1966 0 AIILJ 904. 11. Per contra, learned counsel for the respondent would contend that in the present case, the revisional court has not reappreciated the finding of fact. It is contended that since the finding of the trial court that the plaint case was not proved by respondent No.1, therefore, the plaintiffs/respondents failed to prove their case is based upon misinterpretation of the law, therefore, the revisional court has jurisdiction to correct the same. It is contended that in the exercise of power under Section 25 of the Provincial Small Cause Courts Act, the revisional court has the power to correct the finding returned by the trial court or subordinate court based upon the misinterpretation of law or a perverse finding or finding based upon no evidence on record. It is contended that in the exercise of power under Section 25 of the Provincial Small Cause Courts Act, the revisional court has the power to correct the finding returned by the trial court or subordinate court based upon the misinterpretation of law or a perverse finding or finding based upon no evidence on record. In this respect, he has placed reliance upon paragraph No.43 of the judgment in the case of Hindustan Petroleum Corporation Limited (supra). He has further placed reliance upon the judgment of this Court in the Laxmi Kishore and Another v. Har Prasad Shukla, 1981 ARC 545. 12. He further contends that in the present case, respondent No.2 who is the son of respondent No.1 has filed his affidavit wherein he categorically stated that respondent No.2 is the son of respondent No.1 who is looking after the properties of respondent No.1 and is accepting the rent on behalf of respondent No.1. He further submits that the notice has also been proved by respondent No.2 in his affidavit. It is, thus, contended that the testimony of PW-1 i.e. respondent No.2 is unrebutted because the petitioner did not appear in the witness box to prove his case, therefore, the testimony of PW-1 is unrebutted, in such view of the fact, the averments made in the affidavit of PW-1 have to be taken as true and cannot be discarded. He contends that in view of the categorical statement made by PW-1 in his affidavit that he is accepting the rent and he is looking after the property of respondent No.1 which fact has not been denied by the petitioner tenant, the plaint case has been proved as per law and it doesn't need to be only the respondent No.1 who should appear and prove the plaint case. In this respect, he has placed reliance upon judgment in the cases of Sayed Hasrat Ali and another Vs Nazim Abbas and others, 2008 (1) ARC 532, Man Kaur (Dead) by Lrs. Vs. Hartar Singh Sangha, 2010 (10) SCC 512 & Ramkubai Vs. Hajarimal Dhokalchand Chandak (nikalna hai), 1999 SC 3089. 13. I have considered rival contentions of learned counsel for the parties and perused the record. 14. The facts of the case have already been delineated above. Now the Court proceeds to consider the submission of learned counsel for the respective counsel. 15. Hajarimal Dhokalchand Chandak (nikalna hai), 1999 SC 3089. 13. I have considered rival contentions of learned counsel for the parties and perused the record. 14. The facts of the case have already been delineated above. Now the Court proceeds to consider the submission of learned counsel for the respective counsel. 15. So far as the first contention of learned counsel for the petitioner about the jurisdiction of the revisional court is concerned, it would be apt to refer to the judgment of this Court in the case of Laxmi Kishore and another Vs. Har Prasad Shukla, 1981 ARC 545 wherein the question referred to the Bench was in respect to the powers of the revisional court under Section 25 of Provincial Small Causes Courts Act. The question which was referred to the Bench was as follows:- "Whether under section 25 of the Provincial Small Cause Courts Act a revisional court can pass a suitable decree in a case on a consideration of the evidence on record, if it finds that the findings recorded by the trial court were vitiated by an error of law, or can it only remand the case for a fresh trial?" 16. The Bench while answering the aforesaid question held as under:- "14. It was in this state of affairs that section 103 was enacted in the present Code of 1908. It expressly enables the High Court to determine an issue of fact itself rather than remand matters in such cases. 15. The question is what is the effect of exclusion of section 103 from the purview of the prescribed powers and procedure for revision under Sec. 25 of the Small Cause Courts Act. The answer is evident. The court exercising revisional power under Section 25 does not possess jurisdiction to determine issues of fact itself, by entering into the evidence and assessing it. 16. This aspect makes the Full Bench decision of this court in Maulvi Muhammad v. Syed Husain, distinguishable. In that case, the Full Bench was considering the scope of the phrase “may call for the record of the case and pass such orders with respect thereto as it thinks fit” occurring in Section 622 of this Act corresponding to the present section 115 CPC. It was held that under it, the court had to pass all orders which it can pass in second appeals. It was held that under it, the court had to pass all orders which it can pass in second appeals. In second appeals, the court can, in given circumstances, determine the question of fact. As already seen, a court acting under Section 25 of the Provincial Small Causes Courts Act has no such power. The power to determine question of fact has been expressly taken away. 17... 18. The court deciding a revision under section 25 of the Provincial Small Cause Courts Act has to satisfy itself that the trial courts' decree or order is according to law. Of course, the Revisional Court should keep in mind the Supreme Court's dictum in Naicker's case (supra) that a wrong decision on fact is also a decision according to law. 19. If it finds that there is no evidence to sustain a finding on a particular issue of fact, it can ignore that finding. Same will be the case where the finding is based only on inadmissible evidence. In such cases, the court will be justified in deciding the question of fact itself, because the evidence is all one way. No assessment is needed. The court can also decide the revision if only a question of law or some preliminary point of law, viz., validity of notice, is sufficient for its decision. 20. But, if it finds that a particular finding of fact is vitiated by an error of law, it has a power to pass such order as the justice of the case requires; but it has no jurisdiction to reassess or reappraise the evidence in order to determine an issue of fact for itself. If it cannot dispose of the case adequately without a finding on a particular issue of fact, it should send the case back after laying down proper guidelines. It cannot enter into the evidence, assess it and determine an issue of fact. 17. It is also relevant to reproduce paragraph No.43 of the judgment in the case of Hindustan Petroleum Corporation Limited (supra):- "43. The observation in Ramdoss Vs. K. Thangavelu; [ (2000) 2 SCC 135 ] that the High Court in exercise of its revisional jurisdiction cannot act as an appellate court/authority and it is impermissible for the High Court to reassess the evidence in a revision petition filed under Section 25 of the Act is in accord with Rukmini Amma Saradamma Vs. The observation in Ramdoss Vs. K. Thangavelu; [ (2000) 2 SCC 135 ] that the High Court in exercise of its revisional jurisdiction cannot act as an appellate court/authority and it is impermissible for the High Court to reassess the evidence in a revision petition filed under Section 25 of the Act is in accord with Rukmini Amma Saradamma Vs. Kallyani Sulochana and other; [ (1993) 1 SCC 499 ] and Dr. D. Sankaranarayanan Vs. Punjab National Bank; [1995 Supp. (4) SCC 675]. Its observation that the High Court can interfere with incorrect finding of fact must be understood in the context where such finding is perverse, based on no evidence or misreading of the evidence or such finding has been arrived at by ignoring or overlooking the material evidence or such finding is so grossly erroneous that if allowed to stand, will occasion in miscarriage of justice. Ramdoss Vs. K. Thangavelu; [ (2000) 2 SCC 135 ] does not hold that the High Court may interfere with the findings of fact because on reappreciation of the evidence its view is different from that of the first Appellate Court or Authority." 18. From the reading of the aforesaid judgment, it is evident that the courts have postulated that the power of the revisional court is akin to the powers of the appellate court. The only rider to the power of the revisional court is that it cannot reappreciate the evidence and record a finding of fact than what has been recorded by the trial court or subordinate court. However, if the finding of the trial court or subordinate court is based upon misinterpretation of law or a finding of fact recorded by the trial court is perverse or based upon no evidence on record or is based upon misreading of the evidence or is grossly erroneous, and if that finding is allowed to stand and results in gross miscarriage of injustice, it is always open to the revisional court to correct it because such a finding cannot be treated as a finding according to the law, and in such an event, the revisional court in exercise of its revisional jurisdiction has power to set aside the order being not legal or proper. 19. 19. Now on the principles laid down by the Apex Court and this Court in the aforesaid cases, this Court proceeds to consider the present case as to whether the revisional court has interfered with the finding of fact recorded by the trial court based upon the evidence. In other words, whether the revisional court has reappreciated the evidence relied upon by the trial court in recording a finding of fact or the trial court has returned a finding based upon a misinterpretation of the law. 20. In the instant case, the trial court has non-suited the plaintiff-respondent only on the ground that since respondent No.1 who is the landlady of the shop in question did not appear in the witness box to prove the plaint case, therefore, the plaintiff-respondent failed to prove their case. On the same ground, the trial court has also held that the plaintiff-respondent failed to prove the notice terminating the tenancy of the petitioner tenant. In the opinion of the court, the trial court fell in error in recording the aforesaid finding inasmuch as the said finding is based upon the misinterpretation of the law. This court shall delineate the reason why the trial court fell in error in recording the aforesaid finding while considering the second submission advanced by learned counsel for the petitioner. 21. Now coming to the judgment relied upon by learned counsel for the petitioner, so far as the judgment of Narayani Devi (supra) is concerned, the said judgment is of no help to the petitioner since in the said judgment the argument advanced was that the revisional court has reappreciated the evidence on a finding of fact recorded by the trial court and in such view of the fact, this Court held that revisional court did not have the power to substitute its finding by replacing the finding of fact recorded by the trial court, and if the revisional court was of the view that there was material irregularity committed by the trial court, it should have remanded the matter to the trial court. 22. 22. The judgment of this court in the case of Damyanti Bhanocha (supra) on which learned counsel for the petitioner has placed reliance is also distinguishable on the same analogy inasmuch as in the said case, it appears that the revisional court while exercising the revisional power has reappreciated the evidence and upset the finding of fact recorded by the trial court which was beyond the competence of revisional court whereas in the present case as I have already stated above that the trial court has returned an illegal finding that the plaintiff-respondent failed to prove their case inasmuch as the said finding is based upon misinterpretation of the law, and that error of law can be corrected by the revisional court in view of para No.43 of the judgment of Apex Court in the case of Hindustan Petroleum Corporation Limited (supra) extracted above and the judgment of this Court in Laxmi Kishore and another (supra). Thus, for the aforesaid reason, the judgment of the Apex Court in the case of Hindustan Petroleum Corporation Limited (supra) is also of no help to the petitioner. 23. For the reasons given below, this Court is of the view that the revisional court has not exceeded its jurisdiction in reversing the finding of the trial court. 24. Now coming to the second submission of learned counsel for the petitioner since respondent No.1 did not appear to prove the case, therefore, the trial court has rightly held that the plaintiff-respondent failed to prove their case and therefore the revisional court has erred in law in reversing the finding of the trial court. In this respect, it is pertinent to note that the fact of tenancy has been admitted by the petitioner in paragraph No.2 of the written statement. The petitioner has also not denied in the written statement that respondent No.1 is not the landlord of the shop in question. The petitioner did not file any affidavit nor appeared in the witness box to prove his case. Therefore, the petitioner does not dispute the fact that respondent No.1 was the landlord nor dispute the fact that he was the tenant of the shop, therefore, a fact admitted is not required to be proved under law in view of Section 15 of the Evidence Act. 25. Therefore, the petitioner does not dispute the fact that respondent No.1 was the landlord nor dispute the fact that he was the tenant of the shop, therefore, a fact admitted is not required to be proved under law in view of Section 15 of the Evidence Act. 25. Even otherwise, respondent No.1 filed his affidavit as PW-1 wherein in paragraph No.2 of the affidavit, he has categorically stated that he is the son of respondent No.1 and he is looking after the property of respondent No.1 and is also accepting the rent on behalf of respondent No.1. The fact about service of notice has been stated by the respondent No.2 in his affidavit in paragraph Nos.2, 6, 7 & 8. The paragraph Nos.2, 6, 7 & 8 of the affidavit filed by respondent No.2 are reproduced hereinbelow : 26. Even in cross-examination, respondent No.2 has categorically stated that he was accepting the rent on behalf of respondent No.1. The question put to respondent No.2 in cross-examination and the answer to the same is reproduced hereinbelow : 27. The averments contained in paragraph Nos.2, 6, 7 & 8 of the affidavit and the specific statement in the cross-examination of respondent No.2 that he is accepting the rent on behalf of the landlord has not been denied by the petitioner tenant inasmuch as the petitioner tenant did not file any evidence nor appeared in the witness box to prove his case or rebut the evidence led by the respondent No.2. 28. At this stage, it would be also relevant to mention that the petitioner adopted all the delaying tactics which led respondent No.2 to file a petition before this Court i.e. Matters Under Article 227 No.9639 of 2022 wherein this Court after perusing the order sheet of Trial Court recorded a finding that the proceedings is being delayed at the end of the defendant tenant. The relevant extract of the order passed by this Court is reproduced below : "Supplementary affidavit filed today is taken on record. Heard learned counsel for the petitioners and perused the record. Learned counsel for the petitioners has approached this Court invoking supervisory jurisdiction of this Court under Article 227 of the Constitution to get an appropriate direction for speedy disposal of pending SCC suit being No.- 19 of 2016 (Erstwhile No. 31 of 2015). Heard learned counsel for the petitioners and perused the record. Learned counsel for the petitioners has approached this Court invoking supervisory jurisdiction of this Court under Article 227 of the Constitution to get an appropriate direction for speedy disposal of pending SCC suit being No.- 19 of 2016 (Erstwhile No. 31 of 2015). It transpires from the ordersheet dated 7th April, 2022 that several opportunities to cross-examine the plaintiff has been given time and again to the defendant-tenant but he has not been able to cross-examine the plaintiff and hence the evidence at the stage of plaintiff has remained inconclusive for no justifiable reasons. In view of the above, I consider it to be a case where proceeding is being delayed only at the end of defendant-tenant as he has not been able to cross-examine the plaintiff to say lease about the conclusion of his evidence. In the circumstances, this petition stands disposed of with a direction to trial court concerned to ensure that the plaintiff gets cross-examined in any case within a period of 30 days from the date of presentation of certified copy of this order and in the event defendant fails to cross-examine the plaintiff, the plaintiff's evidence shall be treated to have concluded and thereafter within two months' time defendant shall be asked to conclude his evidence and the court thereafter shall proceed to decide the matter finally within a maximum period of three months. However, if for any technical reason and unavoidable circumstances the aforesaid order is not complied with in a sense that the suit does not get disposed of within time framed by this Court, such delay will not by itself hold the Presiding Judge personally liable for any contempt of this Court." 29. Only after the order was passed by this Court, the petitioner tenant appeared before the trial court and cross-examined PW-2 i.e. respondent No.2. Even despite the opportunity granted by this Court, the petitioner did not choose to file any affidavit rebutting the testimony and affidavit of the respondent No.2 nor appeared in the witness box to prove his case. 30. At this stage, it would be apt to reproduce paragraph No.5 of the judgment of this Court in the case of Syed Hasrat Ali & another (supra):- "5. 30. At this stage, it would be apt to reproduce paragraph No.5 of the judgment of this Court in the case of Syed Hasrat Ali & another (supra):- "5. One of the arguments raised before the Courts below on behalf of the defendants was that the landlady did not examine herself. In my opinion, it was not necessary for the landlady to examine herself. Her daughter was examined as plaintiff’s witness which was sufficient (vide AIR 1999 SC 389 : 1999 SCFBRC 378, Ram Kubai Vs. Hajarimal Dhoklachand Chandak). Moreover, defendant No.1 after filing written statement did not participate in the proceedings. Defendant No.2 admitted that he is carrying on the business from the shop in dispute in his independent capacity. Defendant No.2 could not prove that any agreement of tenancy was entered into in between him and that landlady. Exclusive possession of a person other than the tenant is sufficient to prove sub-tenancy (vide J.S. Sodhi Vs. A. Kaur, 2005 (1) SCC 31 : 2005 SCFBRC 21 : 2005 (3) Suppl. ARC 19)." 31. The Apex Court in the case of Ramkubai (supra) also in a case where the plaint case was proved by the daughter of the plaintiff held that the plaintiff cannot be non-suited only on the ground that the plaint case was proved by her daughter. Para 10 of the judgment is reproduced below : "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 bona fide 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 that reasoning of the Appellate Court could not be supported." 32. The Appellate Court was of the view that the bona fide 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 that reasoning of the Appellate Court could not be supported." 32. The Apex Court in the case of Man Kaur (supra) in paragraph 12 summarised who should give evidence regarding matter involving personal knowledge. Paragraph No.12 of the judgment is reproduced below : "12. We may now summarise for convenience, the position as to who should give evidence in regard to matters involving personal knowledge: (a) An attorney holder who has signed the plaint and instituted the suit, but has no personal knowledge of the transaction can only give formal evidence about the validity of the power of attorney and the filing of the suit. (b) If the attorney holder has done any act or handled any transactions, in pursuance of the power of attorney granted by the principal, he may be examined as a witness to prove those acts or transactions. If the attorney holder alone has personal knowledge of such acts and transactions and not the principal, the attorney holder shall be examined, if those acts and transactions have to be proved. (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. (d) Where the principal at no point of time had personally handled or dealt with or participated in the transaction and has no personal knowledge of the transaction, and where the entire transaction has been handled by an attorney holder, necessarily the attorney holder alone can give evidence in regard to the transaction. This frequently happens in case of principals carrying on business through authorized managers/attorney holders or persons residing abroad managing their affairs through their attorney holders. (e) Where the entire transaction has been conducted through a particular attorney holder, the principal has to examine that attorney holder to prove the transaction, and not a different or subsequent attorney holder. This frequently happens in case of principals carrying on business through authorized managers/attorney holders or persons residing abroad managing their affairs through their attorney holders. (e) Where the entire transaction has been conducted through a particular attorney holder, the principal has to examine that attorney holder to prove the transaction, and not a different or subsequent attorney holder. (f) Where different attorney holders had dealt with the matter at different stages of the transaction, if evidence has to be led as to what transpired at those different stages, all the attorney holders will have to be examined. (g) Where the law requires or contemplated the plaintiff or other party to a proceeding, to establish or prove something with reference to his ‘state of mind’ or ‘conduct’, normally the person concerned alone has to give evidence and not an attorney holder. A landlord who seeks eviction of his tenant, on the ground of his ‘bona fide’ need and a purchaser seeking specific performance who has to show his ‘readiness and willingness’ fall under this category. Thee is however a recognized exception to this requirement. Where all the affairs of a party are completely managed, transacted and looked after by an attorney (who may happen to be a close family member), it may be possible to accept the evidence of such attorney even with reference to bona fides or ‘readiness and willingness’. Examples of such attorney holders are a husband/wife exclusively managing the affairs of his/her spouse, a son/daughter exclusively managing the affairs of an old and infirm parent, a father/mother exclusively managing the affairs of a son/daughter living abroad." 33. Given the law postulated in the aforesaid judgment, this Court is of the view that the trial court on the misconception of law illegally returned a finding that the plaintiff-respondent failed to prove his case since respondent No.1 has failed to appear in the witness box to prove her case. 34. So far as the judgment relied upon by learned counsel for the petitioner is concerned they are of no help to the petitioner inasmuch as in the case of Vidhyadhar (supra), from reading of paragraph No.15 of the judgment, it appears that in the said case, the party to the suit did not appear in the witness box nor offered himself to be cross-examined by the other side. In such view of the fact, the Apex Court held that the presumption is to be drawn against the defendant who did not appear to prove his case whereas in the present case, respondent No.2 who is the son of respondent No.1 has proved the case of the plaintiff. 35. So far the case of Janki Vashdeo Bhojwani and another (supra) is concerned, it is a case in reference to Order 3 Rule 7 CPC, and there the question was as to what extent power of attorney holder can depose on behalf of the principle. The judgment has been rendered in a different factual context and is of no help to the petitioner. 36. So far as the judgment of Harmindal Pathak (supra) is concerned, in the said case, it appears that the defendant Sankata Singh did not appear to prove his case whereas in the present case, the case of respondent No.2 appeared before the trial court to prove his case and testimony of respondent No.2 is unrebutted, therefore, the judgment in the case of Harmindal Pathak (supra) is also no help to the petitioner. 37. Thus, for the reasons given above, the submissions advanced by the learned counsel for the petitioner are devoid of merit. Consequently, the petition under Article 227 of the Constitution of India lacks merit and is hereby dismissed without any order as to costs.