DURGA DASS BANKA Vs. AJIT SINGH

JUDGEMENT

(1.) By this Regular Second Appeal filed under Section 100 of the Code of Civil Procedure, 1908 the appellant seeks to challenge the order dated 20.5.2009 passed by the learned trial court and the order dated 8.2.2011 passed by the learned appellate court, whereby the first appeal filed by the appellant against the order dated 20.5.2009 was dismissed.

(2.) Mr. Ashok Chhabra, learned counsel for the appellant submits that both the learned courts below have given illegal and perverse findings by misconstruing the judgment of the Apex Court in the case of Janki Vashdeo Bhojwani & Anr. Vs. Indusind Bank Ltd. & Ors., 2005 1 AD(SC) 168 by taking a view that since the appellant being the son of the original plaintiff does not have personal knowledge of the facts of the case and therefore he could not have claimed to be fully conversant with the facts and depose in place of his father in his capacity as attorney holder. The contention of the counsel is that the appellant is the son of the original plaintiff but before the learned trial court, the father of the appellant had throughout been appearing and even he had filed his affidavit in evidence and also entered the witness box for the cross-examination, but because of the old age and also because he had suffered a paralytic stroke he could not appear in the matter further. Counsel thus states that in such extenuating circumstances the appellant being the son had filed his power of attorney before the learned trial court and had filed affidavit by way of his evidence. Counsel further submits that the respondent no.1 remained ex-parte throughout before the learned trial court but he had appeared before the first appellate court and now has also appeared before this court. Counsel also submits that the appellant had primarily based his case on the undertaking given by the father of the respondent before the Division Bench of this Court in Crl. Original No.107/1973 wherein the father of the respondent no.1 had undertaken not to raise any construction over the roof of the shop bearing no. 2562, Gali No. 6, Beadon Pura, Ajmal Khan Road, Karol Bagh, New Delhi and to demolish the unauthorized construction already raised by him over the roof of the said shop. Counsel also submits that the respondent MCD had appeared before the learned trial court and they had not disputed the said position of unauthorized construction being raised by the respondent no.1 over the roof of the shop in utter violation of the said undertaking. Counsel thus urges that the learned trial court as well as the first appellate court without even bothering to look at the said documentary evidence, which was an undertaking given by the father of the respondent no.1, had dismissed the suit of the appellant by taking a hyper-technical view that the appellant being the power of attorney, having no personal knowledge of the facts of the case could not have deposed the same in place of the plaintiff. In support of his arguments, counsel has placed reliance on the judgment of this court in the case of Om Prakash Vs. Inder Kaur, 2009 156 DLT 292.

(3.) Opposing the present appeal, learned counsel for the respondent no.1 submits that no fault can be found in both the orders passed by the courts below and the present appeal deserves outright dismissal. Counsel submits that the appellant who appeared in the witness box in his capacity as attorney holder had no knowledge of the facts of the case and therefore he was not a competent person to depose on behalf of the original plaintiff. Counsel has invited attention of this court to page 9 of the impugned judgment dated 20.5.2009 wherein the learned trial court has observed that the plaintiff in his evidence has clearly contradicted the case as set up by the plaintiff in the plaint. Counsel thus states that both the courts below rightly placed reliance on the judgment of the Apex Court in Janki Devi's case (Supra) by taking a view that the appellant having no personal knowledge of the facts of the case was not competent to depose on behalf of the plaintiff. Counsel for the respondent MCD has not disputed the fact that the unauthorized construction was raised by the respondent no.1 over the roof of the shop in question in contravention of the said undertaking.