Civil Revision No.5219 of 2007 : 1 : IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH DATE OF DECISION: May 22, 2008 Gurcharan Singh Sohal & another .....Petitioners VERSUS Raj Kumar ....Respondent CORAM:- HON'BLE MR.JUSTICE RANJIT SINGH 1. Whether Reporters of local papers may be allowed to see the judgement? 2. To be referred to the Reporters or not? 3. Whether the judgment should be reported in the Digest? PRESENT: Mr.Amit Jain, Advocate, for the petitioners. **** RANJIT SINGH, J. The petitioners are aggrieved against the order passed by the Appellate Authority, which has reversed the order of eviction of the respondent passed by the court of Rent Controller. Petitioners are owners of House No.1140 in Sector 17, Faridabad, which was purchased in the year 1994. The petitioners appointed Shri Mohinder Singh Malhi, father of petitioner Karanjit Kaur and father-in-law of petitioner Gurcharan Singh as attorney. The Civil Revision No.5219 of 2007 : 2 : attorney had let out the demised premises to respondent Raj Kumar at the monthly rent of Rs.8000/- in the year 2003. A portion of the property, i.e., garage, one room, bathroom, kitchen and a store in the rear portion, however, remained in the possession of the petitioners. The petitioners, who are NRIs, being permanently residents of Canada, filed this petition for eviction of the respondent on the ground of non-payment of rent. As per the allegations, the respondent had not paid the rent from 1.1.2005 to 16.7.2005. They also pleaded the ground of bonafide necessity by saying that petitioners wanted to shift back to India and thus required the premises for their use and occupation. They had requested the respondent to vacate the same and when he failed to do so, they have filed this eviction petition. The respondent disputed the need of the petitioners as projected, besides raising plea in regard to the maintainability of the petition. He also denied the remaining allegations as made in the petition. The parties went to trial and the Rent Controller directed the respondent-tenant to hand over the possession of the premises within two months, which was appealed against by the respondent. The Appellate Court reversed the findings of the Rent Controller and accepted the appeal, which is now impugned by the petitioners through the present revision petition. The ground of non-payment of rent came to an end when the respondent-tenant deposited the rent. The trial basically was held on the ground of bonafide necessity as projected. In support of this ground, the petitioners had led evidence through their attorney. On Civil Revision No.5219 of 2007 : 3 : the other hand, the respondent-tenant had brought out that the petitioners were NRIs and holding Canadian passport. According to the respondent, they were permanently settled in Canada where their children are studying and, thus, they have no intention to return to India. He also took up the plea that the property was a benami and the real owner was wife of the attorney. The plea in regard to the attorney being not registered or notarized in Canada has also been raised to urge that it would not have any evidentiary value. The attorney of the petitioners, on the other hand, raised objection in regard to the respondent describing him a man of dubious means. His cheques issued were dishonoured and he has misbehaved with the attorney, who was 75 years, when he went to collect rent. A plea in regard to the fact that the landlord is the best judge and his desire should be respected is also raised before the court. The counsel also had urged that the attorney was aware of the personal necessity of his daughter and son-in-law and in this regard placed reliance on the judgment of Jasbir Kaur Sandhu @ Jasbero Kaur Vs. Bihari Lal Narang, 2006(3) RCR (Civil) 839. Undoubtedly, a landlord can seek eviction of a tenant on the ground that he requires this premises for his use and occupation. The word “require” is used in the section and it is required to be seen if the landlord has a sincere and honest need to occupy the premises. It has rightly been observed by the court that the word “require” is something more than a mere desire as has been held by this court in number of cases. The Rent Controller, while upholding the contention of the petitioners, basically relied upon the provisions Civil Revision No.5219 of 2007 : 4 : of East Punjab Rent Restriction Act, 1949, which has given a special ground to seek ejectment of the tenants to the NRIs-landlords. A judgment was also referred to by the court of Rent Controller to observe that court has to satisfy itself that the landlord was an NRI and had returned to India permanently or for temporary period and required the accommodation for his genuine use. The Appellate Authority rightly noticed that such a consideration would not arise from the contents of the provisions of the Haryana Urban (Control of Rent & Eviction) Act. The learned counsel appearing for the petitioners did not dispute much before me that this requirement could not be read into the provisions of the Haryana Urban (Control of Rent & Eviction) Act. and hence could not dispute much about the finding returned by the Appellate Authority in this regard. The counsel, however, would seriously disputes the observation made by the Appellate Authority that the attorney could not have competently depose about the need of the landlords. The Appellate Authority relied upon the case of Janki Vashdeo Bhojwanti and Anr. Vs. Indusing Bank Ltd. And others, 2005(1) RCR (Civil) 240 where the Hon'ble Supreme Court has held that the general power of attorney cannot be allowed to appear as a witness on behalf of the plaintiff in the capacity of a plaintiff. Mr.Amit Jain, however, would say that the ratio as laid sown in this judgment cannot be strictly applied to the petition under the Rent Restriction Act and here an attorney like the present one, who is closely related to the owners, would certainly be in the know of the needs of the owners and as such would be competent to depose in Civil Revision No.5219 of 2007 : 5 : this regard. According to the counsel, the position of law as would emerge from the ratio of law in Janki Vashdeo's case (supra) cannot be made applicable to such like cases. He has referred to the case of Meena Rani Vs. Sham Lal 2008(1) Punjab Law Reporter 347 to say that this court had taken a view that a special power of attorney if appears as a witness and is examined and deposes in terms of the authority granted, such witness is competent witness and his statement is admissible in evidence. The question in the present case is not much in regard to the competency of the attorney to give evidence on behalf of the petitioners. This proposition would not be in dispute that the attorney can appear as a witness on behalf of the principal, but according to the ratio of law laid down in the case of Janki Vashdeo (supra), he can depose only those facts, which are in his personal knowledge and which he has taken as an attorney of the principal. This aspect of the law would clearly emerge from the ratio laid down in Janki Vashdeo (supra). The question which would require to be seen in the present case is whether the attorney would be in a competent position to depose about the personal and bonafide need of the petitioner without they appearing in the witness box or not. Whatever attorney would state in this regard would be the one which would be conveyed or disclosed to him by the principal, whose attorney he is. In a way, thus, he would be giving derivative evidence in regard to the fact that petitioners were requiring to come back to India and thus wanted to settle permanently here. This is not something which can be attributed to his own knowledge, which he can affirm and is bound Civil Revision No.5219 of 2007 : 6 : to be something which he has learnt from the petitioners. It may not be hear-say as to what has been told to him by the petitioners, but would certainly be a hear-say in regard to the truthfulness of the fact regarding the intention/requirement to return on the part of the principal. Thus, the attorney would be only competent to depose that the petitioners were wanting to shift to India and thus need this premises as has been conveyed to him, but would be in a no position to vouchsafe if they really would have intention/requirement to return. This aspect validly could be proved by the petitioners themselves and to ascertain the authenticity thereof, they would be required to face the cross-examine by the opposite side. The ratio laid down in Janki Vashdeo (supra), would also be to this effect. The relevant observations of the Hon'ble Supreme Court are as under:- “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 word “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 Civil Revision No.5219 of 2007 : 7 : can have a personal knowledge and in respect of which principal is entitled to be cross-examined.” Reference can also be made to Vidhyadhar Vs. Manikrao and another , (1999) 3 SCC 573, where it is observed:- “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.” In the case of Janki Vashdeo Bhojwani (supra), the Hon'ble Supreme Court disapproved the contrary view taken by Bombay High Court in the case of Humberto Luis & Anr. Vs. Floriano Armando Luis & Anr., 2002 (2) Bom.C.R. 754 and approved the ratio laid down by Rajasthan High Court in the case of Shambhu Dutt Shastri Vs. State of Rajasthan, 1986 2WLL 713 and Ram Prasad Vs. Hari Narain, AIR 1998 Rajasthan 185. In Shambhu Dutt Shastri's case (supra), it is held that general power of attorney holder can appear, plead and act on behalf of the party but can not become a witness on behalf of the party and can only appear in his own capacity. Same view is reiterated in Ram Parsad's case (supra), where it is said:- “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 Civil Revision No.5219 of 2007 : 8 : but he 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 commission for recording his evidence may be issued under the relevant provisions of the CPC.” Accordingly, I would not find any infirmity in the view taken by the Appellate Authority and thus would dismiss the present revision petition being without merit. May 22, 2008 ( RANJIT SINGH ) ramesh JUDGE