1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR : O R D E R : S.B. Civil Writ Petition No.4770/2008. (Raj Kumar Vs. Smt. Laxmi Devi Pungalia & Others) DATE OF ORDER : November 12th, 2008 P R E S E N T HON’BLE MR. JUSTICE GOPAL KRISHAN VYAS ____________________________________ Mr. B.K. Vyas for the petitioner. Mr. V.K. Vyas for the respondents. BY THE COURT : In this petition, the petitioner has prayed for quashing judgment dated 26.05.2008, Annex.-2 passed by the Appellate Rent Tribunal, Jodhpur in RC Appeal No.17/07 and so also judgment/order Annex.-1 dated 01.12.2006 passed in Original Application No.05/2005. After hearing both the parties, I have perused the entire pleadings of the case. The main contention of the petitioner for challenging both the impugned judgments/orders is that the learned Rent Tribunal as well as Appellate Rent Tribunal committed material illegality while appreciating the entire evidence and wrongly interpreting the facts. It is argued by learned counsel for the petitioner that respondents No.1 and 2 had filed application 2 seeking eviction of the petitioner from the shop in question on the ground that the petitioner had acquired another premises at the Chopasani Road, Jodhpur and the said premises is suitable for him to run the business of electronic goods. It has also been observed by the learned Tribunal that as per the respondents the petitioner had acquired another premises in Shri Johari Apartments, Ratanada, Jodhpur where he is doing business with his son and he has closed the suit premises for last more than six months and some other persons are sitting at the suit premises and, so also, material alteration and construction have been made in the shop in question which caused damage to the building. Contention of the petitioner is that as per definition of the landlord given in the Rent Control Act, respondent No.2 does not fall in the category of landlord and the original application was to be filed by the landlord but the application was filed by respondents No.1 and 2 both though respondent No.2 was not a necessary party and he was power of attorney holder of respondent No.1. It is further argued by learned counsel for the petitioner that the learned Tribunal has committed material irregularity in not considering the fact that respondent No.1 did not file any affidavit in support of her claim and the petitioner was not afforded any opportunity to cross-examine her, therefore, in the absence of any affidavit by respondent No.1, the learned Tribunal has committed gross irregularity while accepting the 3 affidavit of respondent No.2 as power of attorney holder of respondent No.1, therefore, the finding of the learned Rent Tribunal is illegal in view of the pronouncement of the Hon'ble Supreme Court in the case of Janki Vashdeo Bhojwani & Another Vs. Indusind Bank Ltd. & Others, reported in 2007 (2) NIJ 395 (SC), wherein the apex Court held that affidavit of power of attorney holder cannot be accepted. As per learned counsel for the petitioner para 13 of the said judgment lays down the ratio which reads 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 of 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 the 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.” In this case, the petitioner himself is not disputing that respondents No.1 and 2 are landlords from whom the petitioner took the shop in question on rent situated outside Jalorigate in Tapadia Building, which is the suit premises. The petitioner has specifically stated in para 3 of the writ petition that, “Respondents No.1 and 2 are 4 landlords, from whom the petitioner had taken a shop on rent which is situated in Taparia Building, Outside Jalore Gate, Chopasani Road, Jodhpur where he is running his business.” In that view of the matter, objection to the affidavit by learned counsel for the petitioner would not lie in view of the fact that facts of the present case are quite distinguishable than the facts of the afore-quoted judgment. In the present case, the petitioner himself has admitted that respondents No.1 and 2 are his landlords and once the position is accepted by the petitioner there is no question of interference by this Court in the concurrent finding arrived at by both the Courts below. In this view of the matter, the writ petition is dismissed. However, a further prayer has been made by the petitioner to grant some time to vacate the premises in question. For this purpose, upon undertaking furnished by the petitioner before the Rent Tribunal, Jodhpur to the effect that he will vacate the premises within six months from today, no execution proceedings shall be carried out against the petitioner for six months. (Gopal Krishan Vyas) J. Ojha, a.