IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. C.R. No.: 233 of 2003. Reserved on: 02.12.2011. Decided on: 09.12.2011. ______________________________________________ Sharda Sood wife of Shri R.K. Sood, resident of Kangra Bhawan, P.O., Tehsil and District Kangra (HP), at present residing at Dharam Niwas, Palace Road, Solan, P.O., Tehsil and District Solan (HP) – 173212. … Petitioner. Versus 1. Shri Suram Chand son of Shri Kirpa Ram, 2. Shri Jagdish Raj son of Shri Khushi Ram, Both residents of Ward No.8, Dunga bazaar, Kangra Town, P.O., Tehsil and District Kangra (HP). … Respondents. Coram The Hon’ble Mr. Justice Rajiv Sharma, J. Whether approved for reporting?1 Yes. For the Petitioner : Mr. Bhupender Gupta, Senior Advocate with Mr. Neeraj Gupta, Advocate. For the Respondents : Mr. K.D. Sood, Advocate for respondents No.1 and 2. 1 Whether the reporters of Local Papers may be allowed to see the judgment? Yes. - 2 - Justice Rajiv Sharma, Judge. This civil revision is directed against order dated 15th May, 2003 passed by the learned Appellate Authority III, Kangra at Dharamshala in C.M. Appeal No.7-K/98. 2. Material facts necessary for adjudication of this revision are that the petitioner/landlady (hereinafter referred to as “the landlady” for convenience sake) has filed a petition under Section 14 of the H.P. Urban Rent Control Act (hereinafter referred to as “the Act” for convenience sake) against the respondents/tenants (hereinafter referred to as “the tenants” for convenience sake) seeking their eviction on three grounds; firstly, the demised building is required for self occupation of the landlady and her family members, secondly, the tenants are in arrears of rent since 1st January, 1990 and thirdly, the demised building is required bona fide by the landlady for the purpose of rebuilding. The demised building is in a dilapidated condition as well as one of the oldest katcha buildings of the town. The petitioner has sufficient means to reconstruct the same. She has a proposal to reconstruct the same according to her personal needs and with modern amenities and design. The landlady also moved an application under Order 6 Rule 17 of the Code of Civil Procedure seeking amendment of petition. It was listed before the learned - 3 - Rent Controller (II), Kangra on 24.4.1998. Thereafter the application came up before the learned Rent Controller (II), Kangra on 1st May, 1998 on which date the reply was taken on record. The application under Order 6 Rule 17 of the Code of Civil Procedure was allowed by the learned Rent Controller on 6th May, 1998 by passing a detailed order. According to the learned Rent Controller, the amendment sought was of clarificatory in nature. However, it will be apt at this stage to refer to the amendment sought for in the eviction petition. The ground added by the landlady was that the demised building was required bona fide by her for the purpose of rebuilding, which could not be carried out without its being vacated. Reply was filed to the amended petition by the tenants. According to the tenants, the premises were not bona fide required by the landlady, they were not in arrears of rent. The demised premises were not required bona fide for reconstruction. The construction could be carried out without the same being vacated by the tenants. There was no bona fide need of the demised premises for the landlady or her family members. The building was fit for habitation. It was not katcha and also not in a dilapidated condition as alleged. 3. The learned Rent Controller framed the issues on 12.12.1995. The learned Rent Controller ordered the eviction of the tenants on two grounds, namely, that they were in arrears of rent and secondly, the premises were required bona fide by the - 4 - landlady for building/rebuilding, which could not be carried out without the premises being vacated by the tenants. The ground of bona fide requirement by the landlady was rejected by the learned Rent controller. The tenants preferred an appeal before the learned Appellate Authority (III), Kangra at Dharamshala. The learned Appellate Authority (III), Kangra at Dharamshala accepted the appeal on 15th May, 2003. The point of arrears of rent was not looked into by the learned first appellate authority since the rent as calculated by the learned Rent controller was deposited within the period prescribed. However, the learned appellate authority reversed the finding of the learned Rent Controller on the ground of the premises being required by the landlady bona fide for building/rebuilding, which could not be carried out without evicting the tenants. The learned appellate authority has come to the conclusion that the landlady has not led any independent evidence to substantiate the plea of building/rebuilding. According to the learned appellate authority, only the special power of attorney has appeared in the witness box and his evidence could not be looked into. It is in these circumstances, the present revision petition has been filed by the landlady. 4. Mr. Bhupender Gupta, learned Senior Advocate assisted by Mr. Neeraj Gupta, learned counsel for the petitioner has supported the findings recorded by the learned Rent Controller. He then contended that the landlady has amply proved that the - 5 - premises are bona fide required by her for building/rebuilding, which could not be carried out without the same being vacated by the tenants. According to him, the evidence of the special power of attorney, who was none other than the husband of the landlady, could not be ignored. Alternatively, he contended that even if the evidence of the special power of attorney of the landlady is not taken into consideration, there was other sufficient evidence on record to prove that the premises were required bona fide by the landlady for the purpose of building/rebuilding, which could not be carried out without the premises being vacated by the tenants. 5. Mr. K.D. Sood, learned counsel for the tenants has supported the judgment passed by the first appellate authority. He has also argued that his clients have not been given the opportunity to lead evidence after the amendment was allowed by the learned Rent Controller on 6th May, 1998 in the eviction petition. 6. I have heard the learned counsel for the parties and gone through the pleadings carefully. 7. The core question involved in this petition is whether the premises are required bona fide by the landlady for building/ rebuilding which cannot be carried out without the same being vacated by the tenants. In the un-amended petition, the ground was that the demised premises were required bona fide by the landlady, however, by way of amendment, it was averred that the - 6 - demised building was required by the landlady for the purpose of rebuilding, which could not be carried out without its being vacated. The application under Order 6 Rule 17 of the Code of Civil Procedure was filed on 24th April, 1998 and the same was allowed by the learned Rent Controller after hearing the parties, on 6th May, 1998. The tenants have not preferred any revision against this order dated 6th May, 1998. 8. Since the tenants have not assailed the order dated 6th May, 1998, they are estopped from raising this plea now. 9. Now the Court will advert to the evidence led by the parties. 10. PW-1, Surinder Kumar has produced Ex.PW-1/A whereby the building plan of the landlady has been approved. PW-2, Roshan Lal, Patwari has deposed that the landlady has no other house in his jurisdiction. 11. PW-3, Ravinder Kumar Sood is the power of attorney of landlady. He has proved the copy of power of attorney Ex.P-1. He has also deposed that he is well conversant with the facts of the present case. The landlady wanted the accommodation to be vacated for her bona fide requirement. The house is situate in Municipal Council, Kangra. The building is eighty years old. The house is made of mud bricks. The wood used in the building has deteriorated. The tin roof is rusted. The building is in a dilapidated condition and is risky for habitation. It is made in old - 7 - style. The landlady wants to rebuild the premises after demolishing the existing building. The same is not possible without evicting the tenants. She has sufficient means to reconstruct the building. She is entitled to raise a loan to the extent of ` 99,000/- after raising her own share to the extent of ` 44,000/-. She has also another 50,000/- rupees with her. The building plan has been duly approved by the Municipal Council. The tenants have not paid the rent since 1st January, 1990. The landlady has called upon the tenants to vacate the premises, but of no avail. He has admitted in cross-examination that no notice has been issued to the Municipal Council, Kangra about the dilapidated condition of the house. He has denied the suggestion that the condition of the building is good. He has not obtained any certificate from the expert from the PWD or any Engineer about the condition of the building. 12. PW-4, Dhani Ram has also supported the version of PW-3. According to PW-4, the building is in a dilapidated condition. The building is made of mud bricks. The roof is also in a bad shape and has rusted. The wood has decayed and the house is not fit for human habitation. PW-5, Shri Bharti Puri has proved the map Ex.PW-5/A. He has admitted in his cross- examination that he has not gone inside the house. 13. RW-1, Jagdish Raj has testified that the house falls within Municipal Council, Kangra. The building is eighty years old. There are many other old buildings in the town, though he has - 8 - denied the suggestion that the house in question is built up with mud bricks. He has denied the suggestion that the tin is rusted though he has admitted that the building is of old design. The buildings surrounding the demised premises are also old. He has categorically admitted in cross-examination that in case new building is to be reconstructed, the existing building is required to be demolished. 14. RW-2 is Suram Chand. He has feigned ignorance that the building was eighty years old. The house is built of mud bricks. Later on volunteered, the house is built of stone bricks. He has denied the suggestion that the construction material has decayed. He has also denied the suggestion that the tin roof has rusted, though he has admitted that the building is of old design. He has admitted that the house is situate in Municipal Committee, Kangra. He has admitted in his cross-examination that the government employee is entitled to raise loan. He has also admitted categorically that the new house could not be rebuilt without vacating the existing house. 15. RW-3, Rattan Lal has testified that the condition of the building was good. He has admitted in his cross-examination that the house is build of mud bricks and the bricks have been fixed with mud. He has denied the suggestion that the tin roof is rusted. He has feigned ignorance that the building is eighty years old. He - 9 - has also feigned ignorance that the wood has decayed. He has also admitted that he does not possess any diploma or certificate. 16. RW-4, Jagdish Chand has testified that the condition of the house is good. In his cross-examination, he has admitted that the house is build of mud bricks and the bricks have been fixed with mud. He has admitted that the house is old. However, earlier he could not give the exact life span of the building, but later on volunteered, it may be 50-60 years old. He has also admitted that in case the suit premises are to be reconstructed, the existing structure has to be demolished. He has admitted that the landlady is possessing sufficient means. 17. RW-5, is Shri Rakesh Kumar. According to him, the condition of the building is good. There is no possibility of its falling. The wood used in the construction is also in good condition. He has admitted in his cross-examination that the house is build of mud bricks and the bricks are fixed with mud. Age of the building must be 30-35 years. 18. The building map has already been got approved from the competent authority on 11th November, 1993 as per statement of Surinder Kumar, Junior Engineer, Municipal Council, Kangra vide Ex.PW-1/A. It has come in the statement of PW-3 that the building is eighty years old. It is made of mud bricks and the bricks have been fixed with mud. The wood has decayed. The roof has rusted and the landlady intends to reconstruct the building after - 10 - demolishing the old structure, which could not be carried out without the same being vacated by the tenants. He has also deposed about the financial status of the landlady. PW-4, Dhani Ram has also supported the version of PW-3. According to him, the building was in a dilapidated condition and it was made of mud bricks and the bricks have been fixed with mud. The tin roof was also in bad condition and it has rusted. The wood has decayed and the house is not in a habitation condition. PW-5, as noticed above, has proved Ex.PW-5/A, i.e. copy of map. Even RW-1 has testified that the demised premises are old. He has also admitted that in case the new building is to be constructed, the old building is to be demolished. RW-2, Shri Suram Chand has also admitted that the demised premises were of old style. He has also admitted that in case the new building is to be constructed, the old building is required to be demolished. RW-3 in his cross-examination has admitted that the house is made of mud bricks and the bricks have been fixed with mud. RW-4 has stated that the house is constructed of mud bricks and the bricks fixed with mud. The house is old. Though he could not state initially what is the age of building, however, later on volunteered it could be 50-60 years old. According to RW-5, the building was 30-35 years old. It was made of mud bricks. It is thus conclusively proved from the statements of witnesses, discussed hereinabove and the documents placed on record that the building is eighty years old. It is made of mud - 11 - bricks. The wood has decayed. It is in a dilapidated condition. It has also come in the evidence that the landlady has sufficient means to reconstruct the building. Even the tenants and their witnesses have admitted that in case the building is to be rebuilt, the existing structure is required to be demolished. The building is situate in commercial area. The Municipal Committee has already approved the building plans vide Ex.PW-1/A. 19. Mr. K.D. Sood, learned counsel for the tenants has strenuously argued that the statement of PW-3, Ravinder Kumar Sood could not be taken into consideration since he was only the power of attorney of the landlady. It has come in the statement of PW-3 that he was well conversant with the facts of the case. Mr. K.D. Sood has also argued that since the landlady has not appeared in the witness box, an adverse inference has to be drawn against her. Mr. Bhupender Gupta, learned Senior Advocate to the contrary has argued that PW-3 is none other than the husband of landlady. He being fully conversant with the facts of the case was competent to depose and his evidence could not be ignored. 20. Their Lordships of Hon’ble Supreme Court in Pandurang Jivaji Apte v. Ramchandra Gangadhar Ashtekar, (dead) by LRs. And others, AIR 1981 SC 2235 have held that the question of drawing an adverse inference against a party failing to appear in Court would arise only when there is no other - 12 - evidence on record on the point in issue. Their Lordships of the Hon’ble Supreme Court have held as under (para 11):- “In our opinion the question of drawing an adverse inference against Apte and Bavdekar on account of their absence from the court would arise only when there was no other evidence on the record on the point in issue. The first appellate court had relied upon the admission of the decree-holder himself and normally there could be no better proof than the admission of a party. The High Court however, has observed in its judgment that the decree-holder has made no admission in his evidence which would justify refusal to draw adverse inference for the failure of Apte and Bavdekar to step into the witness box.” 21. Learned Single Judge of Rajasthan High Court in Lt. Col. P.L. Bawa versus Lt. Col. Bhawani Singh 2002(2) RCR 711 has held that statement of power of attorney holder can be read into evidence though it is for the court to draw the necessary inference in case of failure of the party to appear in person in the matter. The learned single Judge has held as under (para 17):- “Further, as per Section 60 of the Evidence Act so also Order 3 Rule 1 CPC, competency of a person to testify as a witness is different from that of credibility of the testimony of the witness inasmuch as Order 3 Rule 1 CPC does not restrict a holder of power of attorney to depose on behalf of the plaintiff (party) in relation to the matter in issue and more over deposition of the power of attorney - 13 - holder is not a part of the pleadings, as it is a part of the procedure for proving a case according to Section 118 of the Evidence Act, and that being so, in view of Sections 118 and 66 of the Evidence Act, power of attorney holder is a competent witness and is entitled to appear as such and his deposition will be read in evidence on record. What precaution which requires to be taken is that it is for the Court to draw necessary inference in case of failure of the party to appear in person in the matter and it will consider the burden so discharged by the person appearing and whether power of attorney holder has personal knowledge of the matter in issue is a question which is to be thrashed by cross- examination. I am fortified from the view taken by this Court in Kailash Devi v. Matadeen Agarwal (supra) which was based on a catena of decisions referred to therein.” 22. The Madhya Pradesh High Court in Shanti Devi Agarwal Versus V.H. Lulla, 2003(2) RCR has held that bona fide requirement is also with reference to family and it can be proved by any member of the family. The learned Single Judge has held as under (paras 10 and 11):- “Hon’ble the Apex Court in the matter of T.C. Mathai v. District and Sessions Judge, 1999(3) SCC 614: AIR 1999 SC 1385 has held that the provisions of Power of Attorney Act, 1882 cannot override the specific provision of the statute which requires that a particular act should be done by a party in person and thus when the Criminal Procedure Code requires the appearance of an accused in a Court, it is no compliance with it if a power of attorney - 14 - holder appears for him. Unlike the provisions of the Criminal Procedure Code where a party is required to appear in person and in case of exemption from personal appearance, is required to be represented by a pleader, the Civil Procedure Code does not enjoin on a party to appear in person in all circumstances until the appearance is dispensed with by the Court. Further in th4 case of P. Punnaiah v. Jeypore Sugar Co. Ltd., AIR 1994 SC 2258 : 1994 (4) SCC 341, Hon’ble the Apex Court has also held that except a few functions like quasi judicial or judicial functions, an agent/attorney can perform all the functions including the consent to an act. To clarify the position further it would be appropriate to reproduce the definition of words ‘Power of Attorney’ and ‘Evidence’. (The) Power of Attorney Act 1882 (amended by Act No.55 of 1982) under section 1A defines the words ‘power of attorney’ as: “Power of attorney includes any instrument empowering a specified person to act for and in the name of the person executing it.” Similarly (The Indian) Stamp Act 1899 defines the ‘Power of Attorney’ as : “2(21) “Power of Attorney” includes any instrument (not chargeable with a fee under the law relating to court fees for the time being in force) empowering a specified person to act for and in the name of the person executing it.” That apart the Nagpur High Court in a judgment reported in 1937 NLJ 207 : AIR1937 Nagpur 65(66) has explained the term “power of attorney” as : - 15 - “Power of attorney is an authority whereby one is set in turn, stead or lace of another to act for him.” Now coming to the expression ‘evidence’, section 3 of the Indian Evidence Act defines as: “Evidence :- “Evidence” means and includes – (1) all statements which the Court permits or requires to be made before it by witnesses, in relation to matters of fact under inquiry ; such statements are called oral evidence; (2) all documents produced for the inspection of the Court; such documents are called documentary evidence.” Thus a power of attorney holder, who virtually steps into shoes of a party can place materials in terms of the definition of ‘evidence’ as above, on behalf of that party, before a Court under the provisions of Order 3 Rule 2 of the Code and also under section 118 of the Evidence Act unless he stands disqualified for the reasons given in that section itself and further, admissibility of his evidence would be subject to rigorous procedure contained in Chapter X thereof. That apart, a bona fide requirement is also with reference to family and it can be proved by any member of the family. In the instant case old age of the plaintiff is a good ground that her son, the power of attorney holder, should have been allowed to tender evidence on her behalf. - 16 - Thus, in the premises discussed hereinabove and the decisions referred to, I do not agree with the ratio of the Rajasthan High Courts judgment in Ramprasad’s case (supra). Accordingly, the order dated 9-12-2002 impugned in the Civil Revision No.83/2003 insofar as it relates to rejecting an affidavit of the plaintiff’s son, being the power of attorney holder, to be treated as examination-in- chief of the plaintiff on account of her old age and health problem, is hereby set aside and it is held that the power of attorney holder cold do so on the plaintiff’s behalf in terms of the power of attorney.” 23. Gujarat High Court in Lilavatiben Eknath Rana versus Urmilaben Satyenkumar Zaveri, 2004 (1) RCR 254 has held that when the plaintiff has not appeared himself, the evidence of Power of Attorney on his behalf is admissible. The learned Single Judge has held as under (para 22):- “I have considered the rival contentions of the learned counsel for the parties as well as gone through the decisions of various High Courts relied upon by the learned counsel for the parties in support of their respective arguments; Karnataka High Court has taken different view than the view taken by the Rajasthan High Court in the cases of Ram Prasad v. Hari Narain, AIR 1998 Rajasthan 185, whereas the Rajasthan High Court in the case of Kailash Devi v. Matadeen Agrawal, AIR 2001 Rajasthan 306 has also considered the decision of Rajasthan High Court in the case of Ram Prasad (supra) and the decision of the Bombay High Court and other decisions of various High Courts and came to the conclusion that “Power of attorney is a - 17