GHANSHYAM CHANDIL Vs. RAMKATORI AGRAWAL

JUDGEMENT

(1.) This petition filed under Article 227 of the Constitution challenges the order of the court below dated 18.11.2014 passed in Civil Suit No. 30-A/2014, whereby the application of the petitioner/defendant preferred under Section 151 of the Code of Civil Procedure (Annexure P/6) is rejected by the court below.

(2.) Petitioner is tenant of respondent/plaintiff. The tenant filed a suit for eviction and recovery of rent. The respondent gave a power of attorney (POA) to her son on 25.2.2010 (Annexure P/5). On the strength of this POA, the POA holder/Dinesh Chand Agarwal submitted his affidavit under Order 18 Rule 4 CPC before the court below. The petitioner/ defendant raised an objection against this affidavit. It is contended that the POA holder cannot be permitted to enter the witness box as a plaintiff. In other words, the said person cannot depose his statement by entering the shoes of the plaintiff. It is contended by Shri D.D.Bansal that whether or not rent is properly paid is a matter of fact which must be in the personal knowledge of the plaintiff. Her son cannot depose for the same. Similarly, the son/POA holder cannot state about bonafide requirement. It is further contended that impugned order of court below shows that the reason given is in favour of the petitioner but conclusion is against him. To elaborate, it is contended that in the operative portion of impugned order, the court below opined that POA holder in his personal capacity filed an affidavit and can be cross-examined but the court below has failed to see that in the present case the statement of POA holder is beyond the capacity of POA holder. Reliance is placed on (Janki Vashdeo Bhojwani and another vs. Indusind Bank Ltd. and others, 2005 2 SCC 217); (Man Kaur (Dead) by Lrs. vs. Hartar Singh Sangha, 2010 10 SCC 512); (A.C.Narayanan v. State of Maharashtra and another, 2014 AIR(SC) 630).

(3.) Per Contra, Shri Yogesh Singhal, learned counsel for the respondent, opposed the same. He supported the impugned order and contended that the court below has not committed any legal error in the light of following judgments:- (Shanti Devi Agarwal vs. V.H.Lulla, 2003 4 MPLJ 138). (Bashir vs. Smt. Hussain Banom, 2005 2 MPLJ 230). (Sujata Sarkar vs. Anil Kumar Duttani, 2009 2 MPLJ 156). (Smt. Ramkubai since deceased by L.Rs. and others vs. Hajarimal Dhokalchand Chandak and others, 1999 AIR(SC) 3089).