RSA No. 1685 of 2010 (O&M) -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH RSA No. 1685 of 2010 (O&M) Date of decision:- 16.11.2011 Anurag Bindal ...Appellant Versus Kamlesh Mittal ...Respondent CORAM: HON'BLE MS. JUSTICE RITU BAHRI Present:- Mr. V.K. Gupta, Advocate for the appellant. Mr. G.C. Shahpuri, Advocate for the respondent 1. To be referred to the Reporters or not? 2. Whether the judgment should be reported in the Digest? RITU BAHRI J. The regular second appeal is against the order dated 02.12.2008 passed by Civil Judge (Sr. Divn.) Yamuna Nagar at Jagdhari and order dated 20.02.2010 passed by additional District Judge Yamuna Nagar at Jagadhari. The plaintiff/respondent filed a suit for possession by way of ejectment of appellant/defendant from shop No. 6 near MMTC Godown, Buria Chowk, Chachrauli Road, Jagadhari and also for recovery of ` 750/- as rent from 14.02.2002 to 20.03.2002 including house tax, electricity and other charges etc. and for mesne profit at the rate of ` 100/- per day from 21.03.2002 till the delivery of actual, physical and vacant possession of the shop in question to the respondent/plaintiff. The suit of the RSA No. 1685 of 2010 (O&M) -2- plaintiff/respondent was decreed by the trial Court and thereafter, the Appellate Court dismissed the appeal filed by the appellant/defendant. The admitted facts in the present case are that the plaintiff has constructed 12 shops after submitting the application form for building plan on 17.02.1992 (Ex-P3). Shop No. 6 near MMTC Godown, Buria Chowk, Chhachhrauli Road, Jagadhari bounded on east by Chhachhrauli Road; west by property of Sewa Ram, north by private passage to the property of Sewa Ram and; south by Shop No. 5 was let out by the plaintiff to the defendant at monthly rent of ` 600/- plus house tax, electricity and water charges etc. by dint of agreement dated 23.01.1998. The shop was completed in the month of June, 1992 and as such it was exempted from the provisions of the Haryana Urban (Control of Rent & Eviction) Act, 1973. The case of the plaintiff was that the defendant had not paid the rent since 14.02.2002 despite termination of tenancy vide notice dated 08.02.2002, which was duly received by the defendant but he had not vacated the premises. Plaintiff/respondent filed suit for possession through her power of attorney. Sewa Ram is the father of the plaintiff. The defendant has not disputed the agreement and has admitted that he was a tenant in the shop at a monthly rent of ` 600/-. Sewa Ram General power of attorney of the plaintiff while appearing in the witness box as P.W.1 has stated that he is well conversant with all the facts of the case. He was subject to lengthy cross-examination and he deposed the contents of rent deed and that the tenant was liable to be effected on termination of his lease deed. He has produced the original RSA No. 1685 of 2010 (O&M) -3- power of attorney (Ex.P1) at the time of deposition. Vide notice , the tenancy of the defendant was terminated and the suit has been decreed. Mr. V.K. Gupta, learned counsel for the appellant has placed reliance on the judgment of Hon'ble the Supreme Court rendered in a case of 'Janki Vashdeo Bhojwani vs. Induslnd Bank Ltd., 2004(10) J.T 264 to contend that under order 3 Rule 1 of the Code of Civil Procedure, General Power of Attorney cannot be allowed to appear and depose as a witness on behalf of the principal in the matters of his personal knowledge. In the present case, the plaintiff has not stepped into the witness box and give evidence and, therefore, the judgment of the lower Courts are liable to be set aside. On the other hand, Mr. G.C. Shahpuri, learned counsel for the respondent has referred to the judgments passed by a Co-ordinate Bench (Justice Mohinder Pal) in R.S.A No. 4333, 4334, 4335 and 4336 of 2010 in which the present respondent was a party. The civil suit was filed through general power of attorney (his father). In that case, Kamlesh Mittal was owner of the shop in dispute, which she had let out to the defendants- appellants, vide rent deed. However, the suit filed by GPA for possession and recovery of rent was decreed by the lower Courts. A Co-ordinate Bench, vide order dated 07.01.2011, has dismissed the Regular Second Appeal. Heard learned counsel for the parties. The main thrust of argument of learned counsel for the appellant is that the general power of attorney could not depose on behalf RSA No. 1685 of 2010 (O&M) -4- of the plaintiff and the civil suit was not maintainable as on the statement of Sewa Ram (power of attorney), the suit has been decreed by accepting the evidence given by Sewa Ram on behalf of the plaintiff. This argument of learned counsel for the appellant has no force, as Co-ordinate Bench (Justice Mohinder Pal) of this Court has already examined this issue where the ejectment orders have been upheld qua the same plaintiff. A Co-ordinate Bench of this Court (Hemant Gupta) in C.R. No. 5217 of 2004, decided on 28.02.2006 while examining the provisions of order 3 Rules 1 and 2 of the Code of Civil Procedure has held that if the power of attorney renders some acts in Pursuance of Power of Attorney, he may depose on behalf of principal in respect of such acts but he cannot depose for the principal for the acts done by the principal. It has been further held that he cannot depose for the principal in respect of the matters for which only the principal can have a personal knowledge and in respect of which the principal is entitled to be cross-examined. Hon'ble the Supreme Court in a case of Baldev Singh Bajwa vs. Monish Saini, 2005(4) RCR (Civil) 492 while deciding the bunch of appeals particularly SLP(C) 10865 of 2004, in the ejectment petition filed through an attorney, the leave to defend was declined. The High Court had upheld that order passed by the Rent Controller and held that it is not necessary for an NRI to personally come and file the petition. The Attorney can validly file a petition, the attorney can very well testify as a witness as well. The ratio of Supreme Court judgment in Janki Vashdeo RSA No. 1685 of 2010 (O&M) -5- Bhojwani's case (supra) is not applicable to the facts of the present case as in that case the general power of attorney could not make the statement that he was a co-owner of the property and had a source of income and have contributed towards the purchase of the property. These were matters of personal knowledge. The plaintiff was to appeal in person and be available for cross-examination. The general power of attorney could not depose regarding the facts which were personally known to the plaintiff. In the facts of the present case, after termination of the lease deed executed between the parties, the tenancy was terminated by issuing a notice (Ex.P8). All these facts were in the knowledge of general power of attorney-Sewa Ram. He could validly gave evidence about the above facts. He had the knowledge of the construction of building, sanction of construction plan as they were matter of documentary evidence. His deposition as PW1 did not require any personal knowledge. No interference is required in the judgments of both the Courts below. No substantial question of law arises for adjudication before this Court. Accordingly, R.S.A is dismissed. 16.11. 2011 ( RITU BAHRI ) G.Arora JUDGE