1 CRA489OF10.sxw vks IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION CIVIL REVISION APPLICATION NO.489 OF 2010 WITH CIVIL APPLICATION NO.303 OF 2010 IN CIVIL REVISION APPLICATION NO.489 OF 2010 Dinyar D Daruwalla .. Applicant -versus Dr. (Mrs). Maya Lilo Billani .. Respondent. Shri.Uday P Bobade i/b A.Z. Mookhtiar for the Applicant. Ms Zenobia Irani for the Respondent. CORAM: R.C. CHAVAN, J. DATED: 12th August, 2010 P.C. 1. This revision application is directed against the judgment of the appellate bench of the Court of Small causes, Mumbai who ordered appellant’s ejectment reversing dismissal of suit in respect of claim of ejectment by the trial Court. 2. Facts which are material for deciding this revision as 2 CRA489OF10.sxw could be gathered from the record available are as under: 3. The respondent landlady is owner of suit premises which are garage No.5 in building of Sneh Sadan Co-op Housing Society. The applicant was inducted as licencee on 20.11.1970 by respondent’s predecessor in title. Respondent had taken possession of the premises in l989 and had started a dispensary in the garage. Possession was restored to applicant under Court orders. 4. In l995 the landlady filed the suit, from which the present revision arises,alleging that applicant was in arrears of rent from July, 1991; that he had changed the user of the premises and was not using the premises as garage, having shifted to Jogeshwari, for over 6 months prior to filing of suit without a reasonable cause; and that the landlady reasonably and bonafide needed the garage for parking her own car. 5. The applicant contested all these allegations. The learned trial Judge held that applicant was always ready to clear the rent in arrears and therefore held landlady dis-entitled to recover possession on that ground. He, however, decreed the suit for recovery of rent in arrears amounting to Rs.18,000/-/ . He held that plaintiff had not proved bonafide need and that in any case greater hardship would be caused to the tenant if evicted, as also that non user for the purpose for which premises were let was not 3 CRA489OF10.sxw proved. 6. On appeal, the appellate bench held that landlady had proved her bonafide need and that she would suffer greater hardship if decree was refused, as also that the tenant was liable to be evicted on the grounds of non user and failure to pay rent in arrears. Aggrieved thereby the applicant is before this Court. 7. I have heard the learned counsel for the parties. The learned counsel for applicant has assailed the findings of the appellate bench on the question of respondent’s bonafide need by pointing out that landlady had highhandedly tried to oust the applicant in the past and possession was restored to applicant through Court’s orders. He submits that landlady wants to recover possession by hook or crook and therefore, has raised all false grounds. According to him the appellate bench should have rejected the landlady’s case on the ground that landlady had not examined herself but only her husband deposed an her behalf. Relying on the judgment of this Court in Gangabisan Panalal Joshi and ors -vs- Dattatraya Chandrasa Bilade and anr AIR 1984 BOMBAY 332, the Learned counsel submitted that bonafide requirement is a state of mind and therefore, must be deposed to by the person who requires the premises. In that case too, the first appellate Court had reversed the findings of trial Court. This Court held that appellate court being final court of facts, was not bound in 4 CRA489OF10.sxw law by the findings of fact recorded by the trial court and was not precluded from examining the correctness of the findings. Drawing out a distinction between powers of appellate Court and revisional authorities, the court quoted with approval from an earlier judgment about limitations on the powers of Court of revision to review the evidence. In that case, the landlord, i.e the owner was not examined to prove bonafide need. This court held that if the landlord does not step into the witness box to bring before the Court the legal evidence for proving his requirement, it could not be said that he reasonably and bonafide required the premises. The court observed that a landlord can delegate the authority to conduct a case but cannot delegate the duty to depose. 8. The learned counsel for applicant has also relied on a judgment of Supreme Court in Janaki Vashdeo Bhoojwani and anr -vs- -vs- Indusind Bank Ltd and ors, reported at A. 2005 SUPREME COURT 439 in support of his contention that a Power of Attorney cannot depose in place of the principal. In that case too, husbands had come to depose in place of their wives in very peculiar circumstances. Recovery proceedings had been filed before the D.R.T., against the husbands. Wives filed objections setting up their own claims to the properties of their husbands which were attached. The tribunal then allowed the very husband, 5 CRA489OF10.sxw who was defaulter, to depose for his wife as holder of power of attorney. In this context, the Court observed in paras 13 to 22 as under:- “13.Order III, Rules 1 and 2, CPC, empowers the holder of power of attorney to “act” on behalf of the principal. In our view the words “acts” employed in Order III, Rules 1 and 2 CPC, 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. 14. Having regard to the directions in the order of remanded by which this Court placed the burden of proving on the appellants that they have a share in the property, it was obligatory on the part of the appellants to have entered the box and discharged the burden. Instead, they allowed Mr. Bhojwani to represent them and the Tribunal erred in allowing the power of attorney holder to enter the box and depose instead of the appellants. Thus, the appellants have failed to establish that they have any independent source of income and they had contributed for the purchase of 6 CRA489OF10.sxw the property from their own independent income. We accordingly hold that the Tribunal has erred inholding that they have a share and are co-owners of the property in question. The finding recorded by the Tribunal in this respect is set aside. 15. Apart from what has been stated, this Court in the case of Vidhyadhar v. Manikrao and another (l999) 3 SCC 573 observed at page 583 SCC that @ where a party to the suit does not appear in the witness box and states his own case on oath and does not offer himself to be cross examined by the other side, a presumption would arise that the case set up by him is not correct”. 16. In civil dispute the conduct of the parties is material. The appellants have not approached the Court with clean hands. From the conduct of the parties it is apparent that it was a ploy to salvage the property from sale in the execution of Decree. 17. On the question of power of attorney, the High Courts have divergent views. In the case of Shambhu Dutt Shastri v. State of Rajasthan, 1986 (2) WLL 713 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 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 the approval in the case of Ram Prasad v. Hari Narain & 7 CRA489OF10.sxw ors. AIR 1998 Raj 185. It was held that the word “acts” used in Rule 2 of Order III of the 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 Commissioner for recording his evidence may be issued under the relevant provisions of the CPC. 19. In the case of Dr. Pradeep Mohanbay v. Minguel Carios Dias reported in 2000 Vol.102 (1) Bom. L.R. 908, the Goa bench of the Bombay High Court held that a power of attorney can file a complaint under Section 138 but cannot depose on behalf of the complainant. He can only appear as a witness. 20. However, in the case of Humberto Luis & Anr v. Floriano Armando Luis and Anr , reported in 2002 (2) Bom. C.R.754 on which the reliance has been placed by the Tribunal in the present case, the High Court took a dissenting view and held the provisions contained in Order III, Rule 2 of CPC cannot be constructed to dis- entitle the power of attorney holder to depose on behalf of his principal. The High Court further held that the word “act” appearing in Order III, Rule 2 of CPC takes within its sweep “depose”. We are unable to agree with this view taken by the Bombay High Court in Floriano Armando (supra). 21. We hold that the view taken by the Rajasthan High Court in the case of Shambhu Dutt Shastri (supra) 8 CRA489OF10.sxw followed and reiterated in the case of Ram Prasad (supra) is the correct view. The view taken in the case of Floriano Armando Luis (supra) cannot be said to have laid down a correct law and is accordingly overruled. 22. in the view that we have taken we hold that the appellants have failed to discharge the burden that they have contributed towards the purchaser of property at 38, Koregaon Park, Pune from any independent source of income and failed to prove that they were co-owners of the property at 38, Koregaon Park, Pune. This being the core question, on this score alone, the appeal is liable to be dismissed.” 9. Based on these two judgments the learned counsel submitted that landlady’s husband could not at all have been a competent witness to depose about her bonafide need. First, it has to be noted that observations of the Supreme Court in Janaki’s case(supra) came in the context of peculiar facts. Husband’s had apparently set up their wives to raise objections against attachment of their properties. If the wives had any independent claim to make it was obvious that they had to establish it by examining themselves and not their proxies – whose cause in fact they were espousing. Even so, the judgment does not disqualify a husband from deposing about wife’s needs, if he has personal knowledge about it, merely because he also holds a power of attorney. As far as facts within his personal knowledge, he does not cease to be a competent witness. 9 CRA489OF10.sxw 10. In Gangabisan’s case (supra) decided by this Court a mother, who was the landlady, had set up need for her son, who too was made a co-plaintiff. Though the report of the judgment is incomplete it seems that possibly the son may have been examined in place of mother. While the trial court had apparently accepted this evidence, the first appellate court had rejected it and this Court was considering a writ petition challenging the appellate judgment. The observations have to be read in this context. First, though bonafide need is said to be a state of mind, ‘do the Courts go by the state of mind of landlords?’ -No. The Courts objectively assess the landlord’s needs and do not go by what the landlord feels. Now, if objective assessment is possible by considering evidence of a spouse – whose assessment of needs is unlikely to conflict with that by the other spouse – Courts cannot shut out such evidence, in the absence of any statutory bar for considering evidence about facts in personal knowledge. In my humble opinion, the observations in Gangabisan’s case (supra) came in the context of a plea to discard assessment of evidence by the appellate court, which the court refused to do in exercise of writ jurisdiction, and met the arguments advanced by observing that landlady should have herself stepped into witness box to prove her need. It cannot also be forgotten that the judgment was rendered in l983 when concern about protection of tenants was at its zenith. 10 CRA489OF10.sxw Change in the situation as regards availability of accommodation and plight of landlords has not been ignored by Courts and excessive and hypertechnical injustice on landlords being required to prove their cases to the hilt is slowly making way to a pragmatic balancing of interests. As in Gangabisan’s case (supra), this Court would have to be slow in reversing the findings of fact by the final court of facts. 11. With this longish preamble, I may now proceed to examine applicant’s objections to landlady’s bonafide need of the garage in question. Plaintiff’s husband has stated that they reside in an adjacent building known as “Veena Tower” where the plaintiff also runs her dispensary in shop No.2. He also states that 15.4.1997 (i.e after the suit was filed) the plaintiff obtained an open space for parking in Veena Towers at the cost of Rs.1 lac. Since this exposes the plaintiff’s car, plaintiff wants the garage to park the car. He admitted in his cross examination that he had been looking for premises for starting a dispensary for his wife and had been shown the suit garage in which the plaintiff had in fact set up a dispensary. P.W. 2, Ramprakash, estate manager of the society too stated that the plaintiff does not park her car in the garage, (obviously cannot) and that the garage is locked. 12. The applicant defendant was admittedly doing the business of car repairs in the suit garage. He had stated in written 11 CRA489OF10.sxw statement that he has purchased several premises in the city and the suburbs, in view of nature of his vocation, but, in his cross examination stated that those contents of his written statement were not correct to the extent of the purpose for his vocation. He denied the suggestion that he had kept the premises locked. On behalf of applicant, one Asif Nowroz was examined to show that premises were used by the applicant. He stated that he had given his car for repairs to Air Conditioner at suit garage. His own friend and witness NO.3 Vidyut contractor, however, stated that in l984 applicant shifted to premises in Jogeshwari and he has met the applicant at Jogeshwari since then. 13. This evidence disclosed first that the plaintiff has a car which has to be parked in open; secondly that the defendant has other premises where he can run his business (and is running his business); and thirdly that the defendant is not actually using the premises but only occasionally visits as can be seen from evidence of Ramprakash. Therefore, it cannot be said that appellate bench erred in holding that the landlady proved bonafide need as also non user by defendant, which rules out any hardship to him even if decree of ejectment is passed. 14. On the ground of default in payment of rent both the Courts have concurrently held that applicant was liable to pay Rs. 18,000/- in arrears to the landlady. The appellate bench has held 12 CRA489OF10.sxw that the tenant failed to pay the rent in arrears before the first date of hearing. The learned Trial Judge had held that since the tenant’s applications for depositing rent were allowed from time to time and he deposited rent accordingly, he could not be evicted on the ground of default. An application to clear the rent in arrears was moved before the first date of hearing. A sum of Rs.58,000/- was deposited on 26.2.2001, on application dated 23.2.2001, before issues were framed, on 23.5.2002, and the applicant went on depositing rent upto November, 2004. However, the applicant has not produced any thing to contest the observations of the appellate bench that in fact on 6.4.2009, just a few days before judgment of trial Court, the applicant filed an application for depositing arrears of rent of 5 years, which was allowed. The appellate bench is right in holding that such payment of rent in arrears would entail applicant’s ejectment. 15. It can not, therefore, be said that the view taken by the appellate bench is untenable or perverse or that the bench has considered any inadmissible evidence or excluded admissible evidence in reaching these conclusions. Therefore, the judgment does not call for any interference in exercise of revisional jurisdiction. The revision is therefore dismissed. 16. In view of dismissal of the revision application, Civil Application No.303 of 2010 also stands dismissed. 13 CRA489OF10.sxw 17. At the request of the learned Advocate for the applicant, the decree may not be put to execution for a period of six weeks from the date the order becomes available on the Internet. The applicant and all the adult members of his family shall submit on oath the usual undertaking before the executing Court within a period of three weeks. (R. C. CHAVAN, J.)