LAWS(P&H)-2005-10-18

DINA NATH Vs. SHANTI DEVI

Decided On October 27, 2005
DINA NATH Appellant
V/S
SHANTI DEVI Respondents

JUDGEMENT

(1.) THIS revision petition has been filed by the tenants- petitioners under Section 15(6) of the Haryana Urban (Control of Rent and Eviction) Act, 1973 ('Act' for short) against the order dated 13.10.2005 (Annexure P-1) whereby the prayer of the tenants-petitioners to summon the landlady-respondent as their witness has been declined.

(2.) THE landlady-respondent has filed a petition under Section 13 of the Act seeking ejectment of the tenants-petitioners from two shops as detailed in the head note of the petition situated near old Civil Hospital, Dwarka Puri Mohalla, Sirsa and for delivery of its vacant, actual and physical possession to her. During the pendency of the petition, the tenants-petitioners deposited the expenses for summoning the landlady-respondent as their witness. In view of the said application having been allowed, the landlady-respondent filed an application for discharging her from appearance as a witness of the tenants- petitioners. It was alleged that the tenants-petitioners had intentionally and with a mala fide intention deposited the expenses of the landlady for being summoned as their witness. The landlady, it is stated, is an old lady and she remains ill and is not in a position to depose in the Court. Besides, she has already closed her evidence and her son Radhey Sham had appeared in Court as a special power of attorney on her behalf. It was further stated that the landlady cannot be compelled to appear as a witness for the tenants- petitioners. The tenants-petitioners filed a reply to the said application of the landlady and submitted that the application was not maintainable. Besides, the landlady had been served as a witness to prove the facts as alleged in her petition but she has mala fidely disobeyed the order of the Court. Moreover, after framing of issues the landlady never appeared before the Rent Controller as a witness and the statement made by her Special Power of Attorney is not sufficient to ascertain real facts. Therefore, she is a necessary and material witness. The application of the landlady for her discharge as a witness having been allowed by the impugned order, the tenants-petitioners assail the same by way of the present petition.

(3.) I have given my thoughtful consideration to the contentions of the learned counsel appearing for the tenants-petitioners. The position with regard to summoning the opposite party to a suit as a witness for the other has generally been condemned. In Mahunt Shatrugan Das v. Bawa Sham Das and others, A.I.R. 1938 P.C. 59, it was observed that the practice of calling the defendant as a witness to give evidence on behalf of the plaintiff is condemnable. A Division Bench of the Mysore High Court in Mallangowda and others v. Gavisiddangowda and another, A.I.R. 1959 Mysore 194 also held that the practice of calling the opposite party as a witness should not be countenanced as it is not in the interests of justice. Learned counsel for the petitioners, however, has contended that in the case in hand Radhey Sham son of the landlady has appeared as an attorney of the landlady whereas it is necessary to summon the landlady herself as a witness so that if the relevant circumstances which are necessary for the decision of the case can be put to her. It is contended that in view of the decision of the Supreme Court in Janki Vashdeo Bhojwani and another v. Indusind Bank Ltd. and others, 2005(1) RCR(Civil) 240 : (2005)3 SCC 217 wherein it has been held that the power to depose on behalf of principal extends only to depositions in respect of "acts" done by power of attorney holder in exercise of power granted by the instrument and the term "acts" would not include deposing in place of and instead of the principal for acts done by principal, the landlady is liable to be summoned as a witness so that the acts done by her are put to her. In this regard it may appropriately be noticed that whatever adverse inference is available to the tenants-petitioners for the non-appearance of the landlady would be considered by the Rent Controller after evidence has been completed. This, however, would not entitle the tenants petitioners to seeks the appearance of the landlady in the case specially when she does not want to appear as a witness.