Heard Sri Adnan Ahmad learned counsel for the revisionist, Sri V.N.Singh learned counsel for the respondent and perused the record.
By means of the present revision; revisionist has challenged the judgment and decree dated 29.5.2012 passed in S.C.C. Suit No.01/2009 (Shakuntala Mishra Vs. Smt. Anita Sonkar) by Small Causes Court/ Additional District Judge, Court No.1, Barabanki.
Factual matrix of the present case is that in village Nahar Colony Mohan Nagar, City, Pergana and Tehsil Nawabganj, District-Barabanki, a house consisting of one room was given to the tenant/revisionist on tenancy for 11 months by virtue of an agreement dated 1.1.2001 (unregistered) entered between Smt. Shakuntala Misra (the land lady) and Smt. Anita Sonkar. The tenant/revisionist was defaulter as she had not paid the rent as agreed between the parties, therefore, by means of a notice dated 24.12.2008 plaintiff/respondent terminated tenancy and claim damages. For use and occupation of the premises at the rate of Rs.700/- for month.
Thereafter on 29.2.2009, the landlady/Smt. Shakuntala Misra through R.P. Misra Power of Attorney holder filed a suit for eviction arrears of rent and damages under the provisions of Small Causes Court Act, 1887 registered as S.C.C. Suit No.01/2009, Smt. Shakuntala Misra wife of R.P. Mishra Vs. Smt. Anita Sonkar on 9.4.2009 revisionist filed written statement and denied the allegations of the plaint moved an application for deposit the rent in order to avail the benefit of Section 20(4) of U.P. Act, 13 of 1972 to which landlady/respondent has filed objection on 8.7.2009. On 18.11.2009 plaintiff/landlady filed an application under Order 15, Rule 5 C.P.C. for striking off defence of the petitioner which was rejected by an order dated 26.4.2010. Thereafter, the revisionist deposit rent in pursuance thereof petitioner/revisionist moved an application on 09.04.2009 which was number as Ga-16. Revisionist moved an application on 9.4.2009 for deposit the rent on 13.1.2011 and 7.10.2011. The plaintiff moved an application under Order 15, Rule 5 C.P.C. for striking off defence of the petitioner to which revisionist filed objection on 20.10.2010 and was allowed by order dated 12.08.2010.
Aggrieved by the said order Smt. Anita Sonkar filed Writ Petition No.32(R/C) 2012 Smt. Anita Sonkar Vs. Additional District Judge, Court No.1, Barabanki and Another. In addition to the above said facts on behalf of landlady/respondent on 28.4.2010 moved an application for amendment of plaint, to which on 03.05.2010 revisionist filed her objection, by order dated 12.08.2010 amendment application has been allowed. The said order has been challenged by revisionist in Writ petition No.136 (R/C) of 2010 (Anita Sonkar Vs. Additional District Judge & Another). In view of the above said facts in the present case, the right of defendant/revisionist to file her written statement has been struck off on an application moved by plaintiff- respondent under order XV Rule 5 of C.P.C. The Court below in order to decide the matter framed the following issues:
1."Whether there is relation of landlord and tenant between the plaintiff and defendant, as alleged in the plaint?
2.Whether there is any agreement of the defendant with the plaintiff regarding the disputed house at the rate of Rs.700/- per moth, as alleged in para 5 of the plaint?
3.Whether the rent of 11 months, total Rs.7,700/- fell due on defendant, in which after adjustment of Rs.2000/- of advance, Rs.5,700/- remained pending on the defendant which she did not pay, as alleged in para 6 of the plaint?
4.Whether due to completion of 11 months of tenancy and not making payment of arrears of rent, the defendant is living as a trespasser in the disputed house, as alleged in para7 of the plaint?
5.Whether the plaintiff (landlord) is at present in need of the disputed house for personal use, as alleged in para 1A and 4 of the plaint?
6.Whether this Court has no jurisdiction to hear this suit, as alleged in para 12 of the plaint?
7.Whether the suit is not maintainable?
8.Whether the plaintiff (landlord) is entitled to arrears of rent and damages of the disputed house from the defendant (tenant)?"
Further, before the Court below, Sri R.P. Misra power of attorney on behalf of landlady appeared as witness (P.W.1), in his statement, he has categorically stated that by agreement dated 1.1.2001 premises in question has been let out to the revisionist, the same has been duly signed by the parties in his presence.
By means of judgment and decree dated 29.5.2012, the Small Causes Court/Additional District Judge Court No.1 Barabanki allowed the S.C.C Suit No.1/2009 against the defendant and also ordered for recovery of Rs.25,900/-(Rupees twenty five thousand nine hundred) along with damages for use and occupation at the rate of 700/-(Rupees seven hundred) per month during the pendency of the suit till the date of delivery of possession of the property in question to the plaintiff, the same is under challenge the present revision.
Sri Adnan Ahmad, learned counsel for the revisionist while challenging the impugned judgment and decree dated 29.5.2012 submits that it is totally incorrect and wrong to state by the plaintiff-respondent that an agreement dated 1.1.2001 has been entered between the parties by which the premises in question has been given to the revisionist on rent.
He further submits that the land lady/Smt. Shakuntala Misra have failed to proof her case by way of any cogent evidence, that an agreement has been entered between the parties on 1.1.2001 because only one witness has been produced to prove the case of plaintiff, but his evidence was not reliable and the suit ought not to have been decreed on the solitary evidence of P.W.1 (Sri R.P. Misra) as plaintiff does not appear in the witness-box in order to prove her case whereas her power of attorney has appeared on her behalf so the evidence given by the power of attorney on behalf of the plaintiff is not in accordance with provision of Order III Rule 1 and 2 of C.P.C. Because, the power-of-attorney holder cannot act on behalf of Principal, in this regard he has placed reliance on the judgment given by the Apex Court in the case of Janki Vashdeo Bhojwani and another Vs. Indusind Bank Ltd. and others, 2005 (2) SCC 217, in relevant paragraph quoted below:
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 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 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 remand 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 the property from their own independent income. We accordingly hold that the Tribunal has erred in holding 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 vs. Manikrao and Another, (1999) 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".
And also on the judgment given by the Hon'ble Apex Court in the case of S. Kesari Hanuman Goud Vs. Anjum Jehan & Ors reported in (2013) SCCR 420 wherein it has been held as under :
"13. It is a settled legal proposition that the power of attorney holder cannot depose in place of the principal. Provisions of Order III, Rules 1 and 2 CPC empower the First Appeal No. 77 of 1984 holder of the power of attorney to "act" on behalf of the principal. The word "acts" employed therein is confined only to "acts" done by the power-of-attorney holder, in First Appeal No. 77 of 1984exercise of the power granted to him by virtue of 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 preferred any "acts" in pursuance of the power of attorney, he may depose for the principal in respect of such acts, but he cannot depose for the principal for acts done by the principal, and not by him. Similarly, he cannot depose for the principal in respect of a matter, as regards which, only the principal can have personal knowledge and in respect of which, the principal is entitled to be cross-examined. (See: Vidhyadhar v. Manikrao & Anr., AIR 1999 SC 1441; Janki Vashdeo Bhojwani v. Indusind Bank Ltd., (2005) 2 SCC 217; M/S Shankar Finance and Investment v. State of A.P & Ors., AIR 2009 SC 422; and Man Kaur v. Hartar Singh Sangha, (2010) 10 SCC 512)".
Smt. Anita Sonkar her learned counsel strengthen his argument on the point and placed reliance in Judgment of Hon'ble Apex Court's Judge in the case of Vidhyadhar vs. Mankikrao 1999 AIR (SCC)573, paragraph no.17 as under:
"Where a party to the suit does not appear into the 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 as has been held in a series of decisions passed by various High Courts and the Privy council beginning from the decision in Sardar Gurbakhsh Singh Vs. Gurdial Singh and another, AIR 1927 Privy Council 230. This was followed by the Lahore High Court in Kirpa Singh V. Ajaipal Singh and others, AIR 1930 Lahore 1 and the Bombay High Court in Martand Pandharinath Chandhari v. Radhabai Krishnarao Deshmukh; AIR 1931 Bombay 97 the Madhya Pradesh in Gulla Kharagfit Carpenter v. Narsingh Nandkishore Rawat, AIR 1970 Madhya Pradesh 225 also followed the Privy Council decision in Sardar Gurbakhsh Singh's case (supra) the Allahabad High Court in Arjun Singh v. Virender Nath and another, AIR 1971 Allahabad 29 held that if a party abstains from entering the witness box, it would give rise to an inference adverse against him. Similarly, a division bench of the Punjab & Haryana High Court in Bhagwan Dass V. Bhishan Chand and others, AIR 1974 Punjab & Haryana 7, drew a presumption under Section 114 of the Evidence Act against a party who did not enter into the witness-box".
Accordingly, Sri Adnan Ahmad, learned counsel for the revisionist submits that once Smt. Shakuntal Misra landlady has not appeared in a witness-box to state her own case and does not offer herself to be examined, the presumption would be that plaintiff/landlady has failed to prove her case in respect to the tenancy as well as the rent on which the premises has been let out so the judgment passed by court below is liable to be set aside..
Sri Adnan Ahmad learned counsel for the revisionist, also submits that there is neither any pleading in the plaint in respect to the fact that so called agreement dated 1.1.2001 has been entered between the parties nor the power of attorney holder Sri R.P. Misra is present at the time when the same was executed, so the court below has wrongly placed reliance on the evidence given by Sri R.P. Mishra. In this regard, he has placed reliance in case of Ram Sarup Gupta Vs. Bishun Narain Inter College and other AIR 1987 SC 1242:-
"6.The question which falls for consideration is whether the respondents in their written statement have raiseFirst Appeal No. 77 of 1984d the necessary pleading that the license was irrevocable as contemplated by Section 60(b) of the Act and, if so, is there any evidence on record to support that plea. It is well settled that in the absence of pleading, evidence, if any, produced by the parties cannot be considered. It is also equally settled that no party should be permitted to travel beyond its pleading and that all necessary and mate- rial facts should be pleaded by the party in support of the case set up by it. The object and purpose of pleading is to enable the adversary party to know the case it has to meet. In order to have a fair trial it is imperative that the party should state the essential material facts so that other party may not be taken by surprise. The pleadings however should receive a liberal construction, no pedantic approach should be adopted to defeat justice on hair split- ting technicalities. Sometimes, pleadings are expressed in words which may not expressly make out a case in accordance with strict interpretation of law, in such a case it is the duty of the Court to ascertain the substance of the plead- ings to determine the question. It is not desirable to place undue emphasis on form, instead the substance of the plead- ings should be considered. Whenever the question about lack of pleading is raised the enquiry should not be so much about the form of the pleadings, instead; the court must find out whether in substance the parties knew the case and the issues upon which they went to trial. Once it is found that in spite of deficiency in the pleadings parties knew the case and they proceeded to trial on those issues by producing evidence, in that event it would not be open to a party to raise the question of absence of pleadings in appeal. In Bhagwati Prasad v. Shri Chandramaul, [1956] 1 SCR 286 a Constitution Bench of this Court considering this question observed:
"If a plea is not specifically made and yet it is covered by an issue by implication, and the parties knew that the said plea was involved in the trial, then the mere fact that the plea was not expressly taken in the pleadings would not necessarily disentitle a party from relying upon if it is satisfactori-ly proved by evidence. The general rule no doubt is that the relief should be founded on pleadings made by the parties. But where the substantial matters relating to the title of both parties to the suit are touched, though indirectly or even obscurely in the issues, and evidence has been led about them, then the argument that a particular matter was not expressly taken in the pleadings would be purely formal and technical and cannot succeed in every case. What the Court has to consider in dealing with such an objection is: did the parties know that the matter in question was involved in the trial, and did they lead evidence about it? If it appears that the parties did not know that the matter was in issue at the trial and one of them has had no opportunity to lead evidence in respect of it, that undoubtedly would be a different matter. To allow one party to reply upon a matter in respect of which the other party did not lead evidence and has had no opportunity to lead evidence, would introduce considerations of prejudice, and in doing justice to one party, the Court cannot do injustice to another."
Accordingly, Sri Adnan Ahamd, learned counsel for revisionist submits that the impugned judgment and decree dated 29.05.2012 passed by Court below is liable to be set aside and the present revision may be allowed.
Sri V.N. Singh learned counsel for respondent while supporting the judgment and decree dated 29.5.2012 passed by court below submits that an agreement dated 1.1.2001 has been entered into between the parties. In this regard, he has placed reliance on the document, filed as Annexure CA-II to the counter affidavit, and on the basis of which he submits that from bare perusal of the same, it is clearly established that the agreement of tenancy entered between the parties on 1.1.2001 duly signed by the landlady/Smt. Shakuntala Misra as well as Smt. Anita Sonkar so it is totally incorrect on the part of revisionist to state that the agreement of tenancy has not entered between the parties.
He further submits that at the time of execution of the agreement, Sri R.P. Misra, the husband of landlady who is holder of power of attorney was present, this fact has been duly proved and established when he has been examined as witness (P.W.1) in the said suit and in his cross examination he has categorically stated that in his presence agreement has been entered between the parties on 1.1.2001, so the court below has not committed any illegality and infirmity in placing reliance on the statement given by Sri R.P. Misra while allowing the suit filed by the plaintiff/respondent holding that there is an agreement between the parties dated 1.1.2001, by which the premises in question has been let out to the revisionist/Smt. Anita Sonkar. The said act is in accordance with the law laid down by the Apex Court in the case of Suraj Lamp & Industries (P)Ltd. Vs. State of Haryana 2012 (115) RD 1, relevant paragraph is quoted herein below:-
"13.A power of attorney is not an instrument of transfer in regard to any right, title or interest in an immovable property. The power of attorney is creation of an agency whereby the grantor authorizes the grantee to do the acts specified therein, on behalf of grantor, which when executed will be binding on the grantor as if done by him (see section 1A and section 2 of the Powers of Attorney Act, 1882). It is revocable or terminable at any time unless it is made irrevocable in a manner known to law. Even an irrevocable attorney does not have the effect of transferring title to the grantee. In State of Rajasthan vs. Basant Nehata - 2005 (12) SCC 77, this Court held :
"A grant of power of attorney is essentially governed by Chapter X of the Contract Act. By reason of a deed of power of attorney, an agent is formally appointed to act for the principal in one transaction or a series of transactions or to manage the affairs of the principal generally conferring necessary authority upon another person. A deed of power of attorney is executed by the principal in favour of the agent. The agent derives a right to use his name and all acts, deeds and things done by him and subject to the limitations contained in the said deed, the same shall be read as if done by the donor. A power of attorney is, as is well known, a document of convenience.
Execution of a power of attorney in terms of the provisions of the Contract Act as also the Powers-of-Attorney Act is valid. A power of attorney, we have noticed hereinbefore, is executed by the donor so as to enable the donee to act on his behalf. Except in cases where power of attorney is coupled with interest, it is revocable. The donee in exercise of his power under such power of attorney only acts in place of the donor subject of course to the powers granted to him by reason thereof. He cannot use the power of attorney for his own benefit. He acts in a fiduciary capacity. Any act of infidelity or breach of trust is a matter between the donor and the donee."
An attorney holder may however execute a deed of conveyance in exercise of the power granted under the power of attorney and convey title on behalf Attorney of the grantor."
In this regard, he has also placed reliance on the judgment given by Hon'ble Uttarakhand High Court in the Case of Shri Sunil Agarwal Vs. Smt. Madhvi Thakur [ 2011 (29) LCD 1087] wherein it has been held as under :-
"11. Insofar as the merit of the exparte decree is concerned, the only ground urged by Sri Piyush Garg, the Learned Counsel for the applicant is that, the suit was decreed on the basis of the statement given by the power of attorney holder of the opposite party and that he power of attorney holder could only act at the behest of the principal, but could not appear in the witness box on her behalf. In support of his submission, the Learned Counsel placed reliance upon a decision of the Supreme Court in Janki Vashdeo Bhojwani and Anr. v. Indusind Bank Limited and another, MANU/SC/1030/2004 : AIR (2005) (SC) 439, wherein the Supreme Court, after considering the provision of Order 3 Rules 1 & 2 of the C.P.C., held that the power of attorney holder can only act on behalf of the principal, but could not depose on behalf of the principal. The Supreme Court, however, clarified that if the power of attorney holder had rendered some acts in pursuance to power of attorney, he could depose for the principal in respect of such acts which he had performed, but could not depose for the principal in respect of the matter which only the principal could have a personal knowledge. The Supreme Court held:
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 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 can have a personal knowledge and in respect of which the principal is entitled to be cross-examined.
12. In the light of the aforesaid decision of the Supreme Court, the Learned Counsel submitted that the power of attorney holder could not depose that the applicant was in arrears of rent or could not depose about the validity of the notice sent by the opposite party to the applicant nor could the power of attorney holder depose that the signature appended in the notice was that of the opposite party since all these information were the personal knowledge of the opposite party and only the opposite party could appear and make such deposition and that such deposition could not be made on her behalf by a third party including the power of attorney holder.
13. The submission of the Learned Counsel for the applicant appeared to the attractive in the first blush, but on a closer scrutiny, the Court finds that the submission is devoid of merit. In order to test the submission of the Learned Counsel for the applicant in the light of the principal evolved by the Supreme Court in the case of Janki Vashdeo Bhojwani (supra), the Court has perused the statement given by the power of attorney holder before the trial court and has also perused the power of attorney given in favour of the holder. The Court finds that the power of attorney was given to manage, control, supervise and look after all the properties in any State in India belonging to the opposite party. The said power of attorney gave a wide power to the power of attorney holder. The power of attorney holder further deposed that the applicant used to give rent to him and thereafter he used to deposit the same in the account of the opposite party and that when the applicant fell in arrears of rent, the notice terminating the tenancy was issued by the opposite party on the instructions given by him and that the opposite party had signed the notice in his presence. These facts which the power of attorney holder deposed was in his personal knowledge which he could depose since he had performed such acts on behalf of the principal. The Supreme Court has categorically stated that the power of attorney holder may depose for the principal in respect of such acts which he has rendered in pursuance to execution of the power of attorney in his favour, but could not depose for the principal for the acts done by the principal and not by him. In my opinion, the deposition made by the power of attorney holder clearly indicates that he had deposed only those things for the acts which he had done himself and which had not been done by the principal".
Accordingly Sri V.N. Singh learned counsel for respondent/plaintiff submits that as per the evidence given by Sri R.P. Misra, power of attorney holder, the case of the landlady has been proved & established on one hand and on the other hand Smt. Anita Sonkar has not able to prove her case, so, the Court below has rightly decreed the S.C.C. Suit No. 01/2009 holding that the premises in question has been given on at monthly rent of rent Rs.700/-, as such, the present revision filed by revisionist lacks merits, liable to be dismissed.
In view of the above said facts, in order to decide the controversy in the instant matter following points are to be considered :
(1)whether there is an agreement entered between the parties on 1.1.2001 on the basis of which premises has been given a rent for 11 months at the rate of Rs.700/- to the revisionist ?;
(2) Whether Sri R.P.Misra can file a suit, as a power of Attorney holder on behalf of landlady/plaintiff?;
(3)Whether power of attorney holder can give evidence on behalf of plaintiff/Smt. Shakuntala Mishra and prove her case and on the basis of which the court below has rightly decreed the suit.
So far as the first point is concerned, from perusal of the record, it is clearly established that an agreement dated 1.1.2001 has been entered between the parties by which the premises in question has been let out to the revisionist/ Smt. Anita Sonkar for 11 months @ Rs.700/- per month and advance of Rs.2000/- was also given by Smt. Anita Sonkar at the time of entering into the agreement, the same has been duly signed by the parties (Smt. Shakuntala Misra and Smt. Anita Sonkar) in presence of Sri R.P. Misra. The said agreement is quoted hereinbelow:
"मैंने आज दिनांक 1.1.2001 को श्रीमत्ती शकुंतला मिश्रा पत्नी श्री आर0 पी0 मिश्रा के माकन स्थित नहर कॉलोनी मोहल्ला मोहन नगर, शहर, परगना व तहसील नवाबगंज, जिला बाराबंकी का केवल एक कमरा रुपए 700/- माहवार का 11 माह के लिए किराये पर लिया1 11माह बाद किरायेदारी स्वतः ख़त्म हो जावेगी1 मैंने आज 2000/-रू० { दो हजार रुपया मात्र } बतौर पेशगी माकन मालिकिन को दे दिया है जो जमा रहेगा1 प्रत्येक माह का किराया हर माह कि सात तारीख तक अदा करती रहूंगी और 11 माह बाद कमरा खाली करके कब्जा दे दूंगी इसकी असल मेरे पास है तथा फ़ोटो कापी मकानमालकिन को दे दिया है1 माकनमालिकिन किरायेदार शकुंतलामिश्रा अनीता सोनकर"
Thus, the submissions made on behalf of revisionist that agreement dated 1.1.2001 has not been entered, is an incorrect submission rather contrary to the facts on record.
So far as the point nos. 2 & 3 are concerned in this regard on behalf of revisionist reliance has been placed the law laid down by Hon'ble Supreme Court in the case of Janki Vashdeo Bhojwani and another Vs. Indusind Bank Ltd. and others, 2005 (2) SCC 217, wherein it has been held that the evidence adduced on behalf of the plaintiff through the Power of Attorney Holder has to be ignored and if so ignored, there is no evidence on record to establish the case of the plaintiff as the plaintiff has not stepped into the witness box is concerned. In the aforesaid judgment of the Hon'ble Supreme Court, the question for consideration was, whether the Power of Attorney Holder who deposed was competent to depose about the facts which the party was directed to prove. In this context, Hon'ble the Supreme Court in the aforesaid judgment has held as under, the relevant paragraph nos.12 and 13 quoted herein below :-I "12.In the context of the direction given by this Court, shifting the burden of proving on to the appellants that they have a share in the property, it was obligatory on the appellants to have entered the box and discharged the burden by themselves the question whether the appellants have any independent source of income and have contributed towards the purchase of the property from their own independent income can be only answered by the appellants themselves and not by a mere holder of power of attorney from them. The power-of attorney holder does not have personal knowledge of the matter of the appellants and therefore he can neither depose on his personal knowledge nor can he be cross-examined on those facts which are to the personal knowledge of the principal."
13. Order 3 Rules 1 and 2 CPC empower the holder of power of attorney to "act" on behalf of the principal. In our view the word "acts" employed in Order 3 Rules 1 and 2 CPC confines only to 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 of 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 of which only the principal can have a personal knowledge and in respect of which the principal is entitled to be cross-examined."
The aforesaid judgment is rendered in the peculiar facts of that case. The question involved in the said case was whether the appellants had any independent source of income and have contributed towards the purchase of the property from their own independent income. The said facts were within the personal knowledge of the appellants and to prove the said facts it was obligatory on the appellants to have entered box and discharge the burden by themselves. However, they did not step into the box, on the contrary their Power of Attorney deposed.
Therefore, it was held that the Power of Attorney Holder does not have personal knowledge of the matter, and therefore he can neither depose on their personal knowledge nor can he be cross-examined on those facts which are to the personal knowledge of the principal. In that context, the Supreme Court interpreted the work "Act" under Order III Rule 1 of CPC and held that the word "Act" in the aforesaid provision confines only to in respect of acts done by the Power of Attorney Holder in exercise of the power granted by the instrument which does not include deposing in his place and instead of the principal.
Accordingly, the Hon'ble Supreme Court has not laid down as a proposition of law, that in all cases the evidence of the Power of Attorney Holder is to be excluded and the plaintiffs case has to fail for not examining him. All that has been said is when plaintiff has to adduce evidence in respect of matters which are within his personal knowledge, the plaintiff cannot prove those matters by examining a Power of Attorney in his place.
The principle underlining the aforesaid judgment of the Supreme Court is nothing but the rule of hearsay evidence. Section 60 of the Evidence Act mandates that oral evidence must be direct and it aims at the rejection of evidence which is not direct, that is what is known as hearsay evidence. It is a fundamental rule of evidence that hearsay evidence is not admissible. Oral evidence must be direct, i.e., if it refers to a fact which could been seen, it must be the evidence of a witness who says he saw it; if it refers to a fact which could be heard, it must be the evidence of a witness who heard it; if it refers to a fact which could be perceived by any other sense or in any other manner, it must be the evidence of a witness who says he perceived it by that sense or in that manner; if it refers to an opinion or to the grounds on which that opinion is held, it must be the evidence of the person who holds that opinion on those grounds. As opposed to this direct evidence, we have what is known as indirect evidence, i.e., transmitted, second hand or hearsay, something which a witness before the Court ' says that he heard from a third party who is not called as a witness and the statement of that witness is inadmissible to prove the truth of the facts stated. This is the most common form of hearsay. The term hearsay is rather ambiguous and misleading and it has therefore been purposely excluded from the Evidence Act. Hearsay may be defined to be that which a witness does not say of his own knowledge, but says another has said or signified to him. Hearsay is therefore properly speaking secondary evidence of any oral statement. Hearsay is not now confined to oral statement. In includes what is done or written as well as what is spoken, i.e., all evidence reported whether orally or in writing. Conduct may also be hearsay like statements. The reason advanced for rejection of hearsay are numerous. The two principal objections however appeared to be lack of an oath and the absence of an opportunity to cross-examine him.
The proposition of law about the competence of a person to testify as a witness is governed by Section 118 of the Evidence Act. Giving evidence before a Court of law is an act within the meaning of the said provision. However, everyone is not entitled or competent to give evidence as witness before a Court unless one fulfills the requirements of the qualifications envisaged in Section 118 of the Evidence Act.
Thus, there is no express bar made in the provisions of CPC to debar the Power of Attorney to be examined as a witness on behalf of the parties to the proceedings. Power of Attorney is a competent witness and is entitled to appear as such. His evidence cannot be refused to be taken into consideration on the ground that the parties to the suit i.e., plaintiff or defendant do not choose to appear as witness in the witness box.
Accordingly, the question whether the General Power of Attorney Holder of a party can be competent witness on behalf of a party has to be answered in the light of Section 118 of the Evidence Act. The Power of Attorney Holder of a party, only on the ground that he holds the power of attorney, cannot be said to be in the category of persons who are incapable of being witness as provided by Section 118 of the Evidence Act. Whether such Power of Attorney Holder has personal knowledge about the matters in controversy, may be a question which can be thrashed out by cross-examining him and if it is found that the Power of Attorney Holder has no personal knowledge about the facts in controversy, the evidentiary value of his deposition may be determined, but that has nothing to do with the competence of such a Power of Attorney Holder to depose before a Court or a Judicial Tribunal as a competent witness.
The Power of Attorney Holders are regulated by the Power of Attorney Act, 1882. The statement of objects and reasons of the said Act states "as the lease stand, the donee of a power of attorney, when executing an instrument pursuant to the power, must sign, and where sealing is required must seal, in his principal's name." The first object of the same was to render it legal for such donor to execute in and with their own names and seals. The said Act does not however confer on a person a right to act through agents. It presupposes that the agent has the authority to act on behalf of the principal, and protects acts done by him in exercise of that authority but in his own name.
After Independence and coming into force of the Constitution, the Law Commission in its 68th Report examined this Act and while suggesting that, because of its archaic form and language it should be replaced by anew enactment, it also suggested certain amendments to the Act. As the amendments did not call for any radical or substantial changes in the Act that had worked smoothly for a century, it was proposed, instead of replacing the Act by a new one, to make the necessary amendments therein. Among others, the Commission suggested for insertion of a suitable definition of "Power of Attorney", as the Act did not contain one. Therefore, Section 1-A was introduced by Act No. 55/1982 by the Parliament amending the Act. Hence, the Power of Attorney under the Act includes any instrument empowering a specified person to act for and in the name of the person executing it. It is an inclusive definition.
The Power of Attorney Holder is nothing, but an agent as defined in Section 182 of the Contract Act. It differs from agency in that, while in the case of agency the principal is only bound by acts of his agent, the holder of a power of attorney not only acts on behalf of the principal so as to bind the latter, but also acts in the name of the principal and uses his/her name in the instruments executed by him as the attorney. Prior to enactment, an agent having authority to execute an instrument has to sign in the name of the principal if he was to be bound. If the agent signed the deed in his name albeit as agent, he was the person who was regarded as party to the document and not the principal. It was the agent alone that could enforce the deed and he was only liable to pay. It was to overcome this hardship that the Act was enacted.
The provisions of Order III Rule 1 CPC deal with the legal position of the validity of attorney in conduct of cases for a limited purpose and in a limited context. The primary object of Order III Rule 1 CPC is to enable a party to perform certain acts before the Court, which he would have been otherwise required to do in person through recognized agent or pleader. The other object is to prevent perpetration of fraud by unauthorized person who poses himself to be the agent of a party before a Court. Order III Rule 2 CPC contemplates that the persons who are authorized to act. No unauthorized person can take part in the proceedings before a Court of law. Order III does not deal with the rights of parties who appear in person in Court, Order III Rule 1 CPC enacts a general rule and confers only procedural right. There are other modes of appearances, applications, or acting, expressly prescribed by the Code for particular cases, e.g., Order 33 Rule 3 and Order 44 Rule 1 CPC which, by reason of the words "except where otherwise provided by any law for the time being in force" are taken out of the operation of the general rule to the extent so prescribed. In application for leave to sue as a pauper appeals a recognized agent cannot, therefore, appear.
The words "appearance, application or act" in Order III Rule 1 CPC only mean appear, make application and take such other necessary steps as may be required to be taken up for the progress of the proceedings. It offers no guidance whatsoever for giving deposition on oath as a Power of Attorney on behalf of a party. It is not a part of the pleadings. It is the part of the procedure for proving a case by competent witness. It does not deal with evidence to be adduced in a legal proceeding at all. Merely because the aforesaid provision does not deal with the evidence or who may testify, or depose, it cannot be said that the General Power of Attorney has no such power to depose. Order III CPC does not deal with the power of Power of Attorney Holder exhaustively.
In the present case, as stated above on the basis of material on record, it is clearly established/proved that an agreement of tenancy has been entered between the parties in respect of premises in question on 1.1.2001 signed by the parties (Smt. Shankutala Misra and Smt. Anita Sonkar) in the present of Sri R. P. Misra, power of Attorney holder. So, keeping in view the said facts and the mandate of Section 61 of the Evidence Act that the contents of documents may be proved either by primary or secondary evidence. Primary evidence means the documentary evidence produced for inspection of the Court. Therefore, when a particular fact is to be established by production of documentary evidence there is no scope for leading oral evidence and there is no scope for personal knowledge. What is to be produced is the primary evidence, i.e., document itself. The said evidence can be adduced by the party or by his Power of Attorney Holder. Production of the document, marking of the document is a physical act which does not need any personal knowledge. Even proof of the document is by examining the persons who are well versed with the document or by examining the attesting witnesses or the executant of the document. Again the personal knowledge of the plaintiff has no role to play. In those circumstances it is open to the plaintiff to examine the Power of Attorney Holder, as witness to prove the said document if it is denied. Therefore, once an agreement has been entered in the present of a Power of Attorney Holder Sri R.P. Misra and contends of the same can be proved by his evidence. So, the submission made on behalf of the revisionist that the case of the plaintiff/respondent (Smt. Shakuntala Misra) cannot be proved by the evidence of Sri R. P. Misra is not correct, rather the same is not in accordance with law as laid down by Hon'ble the Supreme Court in the judgment cited on behalf of the revisionist in order to support his case.
Further in the instant matter, the Court below while deciding issue no.2 has given categorical findings that agreement dated 1.1.2001 enter between the plaintiff and defendant by which the premises in question let out at the rate of Rs.700/- per month and also held that an advance of Rs.2000/-has been given by the defendant to the plaintiff. So, in view of the above said facts neither any illegality nor infirmity has been done by the Court below rather there is no fault on the part of court below by placing reliance on the evidence given by Sri R.P. Misra/power of attorney holder of the plaintiff who has been produced as witness on her behalf and on his statement the suit filed by the plaintiff (S.C.C. Suit No.01/2009) has been allowed by means of judgment dated 29.5.2012.
In the result, the revision lacks merit and is accordingly dismissed.
No order as to costs.
[Justice Anil Kumar] Order Date:- 2/4/2014 Subodh/-