1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD WRIT PETITION NO.4078 OF 2009 Bhimashankar Kishnarao Borude, Age-40 years, Occu:Tailor, R/o-Padamapani Colony, Near Railway Station, Aurangabad. ...PETITIONER. VERSUS Khatijabee w/o Abdul Sattar, Age-60 years, Occu:Nil, R/o-Padamapani Colony, Near Railway Station, Aurangabad, Through her GPA holder Abdul Majeed s/o Abdul Sattar, Age-38 years, Occu:Business, R/o-Silk Mill Colony, Aurangabad. ...RESPONDENTS. ... Mr.C.V. Korhalkar Advocate h/f. Mr. S.V. Adwant Advocate for Petitioner. Mr.L.D. Vakil Advocate for Respondent sole. ... CORAM: K.K. TATED, J. JUDGMENT RESERVED ON : 4TH AUGUST, 2009. JUDGMENT PRONOUNCED ON : 11TH AUGUST, 2009. JUDGMENT : 1. Rule. Rule made returnable forthwith. With the 2 consent of the learned counsel for the parties, matter is taken up for final hearing at the stage of admission. 2. By this Petition under Article 226 and 227 of the Constitution of India, the Petitioner - original defendant challenges the Judgment and decree passed by the 8th Joint Civil Judge, Junior Division, Aurangabad in Rent Suit No.16 of 2004 dated 28th February, 2008 and the Judgment and decree passed by the District Judge-1, Aurangabad in Rent Appeal No.8 of 2008 dated 10th June, 2009. The Respondent is original plaintiff. A few facts of the matter are as under: . The Petitioner is a tenant in respect of House No. 5-8-55-B, C.T.S. No.18393 situated at Padampani colony, Railway Station Road, Aurangabad admeasuring 10 X 10. The Respondent is a landlord of the said suit property. The Respondent - original plaintiff filed Rent Suit No. 16 of 2004 in the Court of Civil Judge, Senior Division, Aurangabad for recovery of possession and rent along with interest. It is the case of the Respondent that the Petitioner has not paid the rent from the year 1995 to 1998 and therefore the Respondent filed the Suit for 3 recovery of rent. Thereafter again the Petitioner has not paid rend of the suit house from December, 2000 to September, 2003 and therefore the Respondent issued notice under Section 15 of the Maharashtra Rent Control Act and filed suit for eviction and recovery of arrears of rent. The said Suit was decreed on 28th February, 2008. Being aggrieved by the said Judgment and decree dated 28th February, 2008, the Petitioner - tenant filed Rent Appeal No.8 of 2008 and the same was dismissed by the Judgment and decree dated 10th June, 2009. 3. Both the Courts concurrently held that the Petitioner failed to pay the rent of the suit premises for more than six months. The trial Court framed following issues in Rent Suit No.16 of 2004: ISSUES FINDINGS 1) Does the plaintiff prove the relationship with defendant as landlord and tenant? Yes. 2) Whether the notice constitutes cause of action to the plaintiff for eviction for the defendant? Yes. 3) Whether the defendant is willful defaulter in payment of rent from December, 2000 to September, 2003? Yes. 4 4) Whether the plaintiff is entitled to relief of recovery of rent and possession of suit premises? Yes. 5) What order and decree? The suit is decreed as per final order. 4. Learned counsel appearing on behalf of the Petitioner stated that the Respondent - original plaintiff never entered into Witness Box. She executed power of attorney in favour of third person who filed affidavit of evidence. Therefore, the learned counsel for the Petitioner submitted that power of attorney holder can act on behalf of the principal but cannot depose in place and instead of principal. In support of his contention, he relied on the Judgment in the matter of Janki Vashdeo Bhojwani and another vs. Indusind Bank Ltd. and others, reported in [2005 (1) Mh. L.J. Page 1170]. In this Authority, the Apex Court held that word "acts" employed in Order 3, Rules 1 and 2 of the Code of Civil Procedure is confined only in respect of "acts" done by the power of attorney holder in exercise of 5 power granted by the instrument. It would not include deposing in place and instead of the principal. Power of attorney holder can appear as witness in his personal capacity. Para 13 of the Judgment reads as under: "13. Order III, Rules 1 and 2, Civil Procedure Code, 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, Civil Procedure Code, 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 the principal is entitled to be cross-examined." 6 5. In view of these facts learned counsel for the Petitioner submitted that as the original plaintiff herself had not entered into Witness Box, the Judgment and decree passed by both the Courts below, are liable to be set aside. Learned counsel for the Respondent pointed out from affidavit filed by power of attorney holder of original plaintiff in examination in chief, in which it is specifically stated that the plaintiff is old aged lady and does not keep good health and is unable to move out of the house to attend the Court cases and as such she has appointed deponent of the said affidavit in lieu of evidence, general power of attorney to attend all her affairs in the Court also. Learned counsel for the Respondent further submitted that in the present case, the Respondent filed Rent Suit for recovery of the suit premises on the ground of arrears of rent. For the purpose of proving their case about arrears of rent, they produced all documentary evidence on record. 6. In any case, arrears of rent required to be proved only by documentary evidence and therefore both the 7 Courts below had not raised any objection about the affidavit in lieu of evidence filed by the power of attorney holder of the Respondent. Learned counsel for the Respondent submitted that merely on the ground that the landlord did not enter into the Witness Box, the Court cannot reject the suit of landlord for eviction. In support of his contention, learned counsel for the Respondent relied on the Authority in the matter of Nathulal Gangabaks Khandelwal and others vs. Smt. Nandubai and others, reported in AIR 1984 Bombay Page 340. Head Note of the said Judgment reads as under: "C.P. and Berar Letting of Houses and Rent Control Order (1949), Cl.13(3)(vi) - Bona fide requirement - Application for eviction by landlord - cannot be rejected merely on ground that landlord had not examined himself as witness." 7. In the present case the issue involved is non payment of rent for a particular period i.e. from December, 2000 to September, 2003 for 36 months at the rate of Rs.100/- per month. These facts are proved by the Respondent by producing ample documentary evidence. The Petitioner tenant failed to produce any rent receipt 8 and/or cogent evidence on record to show that he paid rent for the period from December, 2000 to September, 2003. Therefore, I do not find any substance in the submissions made by the learned counsel for the Petitioner that the Respondent landlord failed to enter into Witness Box for deposition and therefore both the Courts below erred in holding in favour of the Respondent. 8. The trial Court in Para 16 of the Judgment held that after service of Summons the defendant did not pay the arrears of rent within a period of 90 days; consequently, the plaintiff became entitled to the relief of eviction. Even the appellate Court in Para 14 of the Judgment observed thus: "The defendant in his WS para 4 has candidly admitted that notice was issued to him and that he did not reply the same because the notice issued without any right or concerned with property, house No.5-8-55/B situated at Padampani, Railway Station, Aurangabad." 9. This itself shows that the Petitioner since 9 beginning was not ready and willing to pay the agreed rent to the Respondent landlord. Apart from these facts, learned counsel for the Petitioner has not pointed out how the Judgment and decree passed by both the Courts below are irrational. The Apex Court in the matter of Mohammed Yusuf vs. Faij Mohammad and others, reported in 2009 (1) SCALE Page 71 held that in Writ jurisdiction under Article 226 and 227 of the Constitution of India, the High Court can set aside the orders passed by the trial Court and revisional Court only on limited grounds, namely, illegality, irrationality and procedural impropriety. Para 16 of the said Judgment reads as under: "16. As indicated hereinbefore, the High Court allowed the writ petition and thereby set aside the orders passed by the trial Court as also the Revisional Court without assigning any reason therefor. The jurisdiction of the High Court under Article 226 and 227 of the Constitution of India is limited. It could have set aside the orders passed by the learned trial Court and the Revisional Court only on limited ground, namely, illegality, 10 irrationality and procedural impropriety. The High Court did not arrive at a finding that there had been a substantial failure of justice or the orders passed by the trial Court as also by the Revisional Court contained error apparent on the face of the record warranting interference by a superior Court in exercise of its supervisory jurisdiction under Article 227 of the Constitution of India." 10. In view of the above mentioned facts and circumstances, I do not find any substance in the present Writ Petition and the same is dismissed with no order as to the costs. Rule stands discharged. [K.K. TATED, J.] asb/JULY09/wp4078.09