A.K. Parichha, J.
1. This is a defendant's appeal against the judgment and decree passed by the learned District Judge, Ganjam-Gajapati, Berhampur in RFA No. 15 of 2005 confirming the order of eviction passed by the learned Civil Judge (Senior Division), Berhampur in T.A. No. 137 of 1995.
2. The present respondent as plaintiff filed the above suit with the pleading that she is the owner and landlord of the suit house and she inducted the present appellants as tenants in that house, but the appellants-tenants defaulted in payment of rent. She also pleaded that she needed the suit house for her personal use and therefore, served a notice under Section 106 of the Transfer of Property Act (hereinafter to be referred to as 'the Act', in short) asking the appellants to quit the house, but when the latter failed to vacate the house, she filed the suit for eviction and damages.
3. The appellants-defendants admitted the relationship between the parties, but pleaded, inter alia, that they never defaulted in payment of rent, the plaintiff does not require the suit house for her own use, but she filed the suit for eviction because they did not agree to her proposal for enhancement of rent from Rs. 1000/- to Rs. 1500/- per month. In the written statement, they further averred that the plaintiff-respondent even after serving the notice under Section 106 of the Act received rent from them, thereby waiving the quit notice allowed the defendants to continue in the suit house as tenants by holding over.
4. Learned trial Court framed as many as six issues, accepted evidence of the parties and on consideration such evidence, came to hold that the defendant No. 1 had taken the suit house on rent for a short period with the promise to vacate the same for use of the plaintiff at short notice, that the defendant No. 1 was not a defaulter in payment of rent, that the plea of demand of higher rent of Rs. 1500/- was probable, that the defendants are liable to vacate the suit house and to pay damages at Rs. 1500/- per month till the date of vacation. The defendants carried appeal before the learned District Judge, Ganjam-Gajapati, Berhampur. The present respondent also carried cross-appeal. On re-consideration of the evidence and the submission of the counsel for the parties, learned first appellate Court in the impugned judgment held that the notice under Section 106 of the Act is valid, that the tenancy did not continue by waiver or holding over, that there was bona fide requirement of the landlord and accordingly, dismissed the appeal while allowing the part of the cross appeal. The said judgment and decree of the learned 1st appellate Court is under challenge in this appeal.
5. The following substantial questions of law were formulated for consideration.
(i) Whether by accepting rent tendered by the defendant, the plaintiff-respondent waived the quit notice and whether such acceptance tantamount to renewal/continuance of the tenancy by holding over ?
(ii) Whether the evidence adduced by P.W.1, son and Power of Attorney Holder of the plaintiff can be treated as evidence on behalf of the plaintiff or adverse inference under Section 114 of the Evidence Act would be drawn against the plaintiff for not giving her evidence in the Court as a witness ?
6. Mr. Mishra, learned Counsel for the appellant relying on The Kind v. Paulson and Ors. AIR 1920 Privy Council, and Chotu Mia v. Mt.Sundri AIR (32) 1945 Patna 260 submits that once the landlord receives the rent after service of quit notice on the tenant, it will be presumed that he has waived the quit notice and continuance of the tenancy would be presumed to continue. As against this Mr. K.A. Guru, learned Counsel for the respondent submits that simple acceptance of rent by the landlord after the quit notice, neither amounts to waiver of the quit notice nor the tenancy would automatically continue by holding over unless there was express or implied consent of the landlord to continue with the tenancy even after the notice. In support of his contention, he relies on the case of Sarup Singh Gupta v. S. Jagdish Singh and Ors. 2006(1) CLR (SC) 664. In case of The King v. Paulson and Ors. there was breach of covenant of lease for which the lease was forfeited. After this forfeiture, the landlord accepted the rent from the erstwhile lessee. Considering the fact situation, the Privy Council observed that the landlord by receipt of rent after breach of covenant has occurred, with knowledge of such breach shows a definite intention to treat the lease as subsisting even though he accepts it conditionally and without prejudice to his right to insist on a prior forfeiture and therefore, invocably elects to treat the lease as subsisting and can no longer avoid it. In case of Chotu Mia v. Mt. Sundri (supra), there was a suit by the landlord for ejectment of tenant on the ground of forfeiture of lease. Before filing of the suit, he accepted rent accrued due since forfeiture. In that situation, it was observed by the Patna High Court that acceptance of rent accrued due prior to the suit amounts to waiver of forfeiture. The legal situation was clarified by the apex Court in the case of Sarup Singh Gupta (supra). Interpreting the wordings of Sections 113 and 116 of the Act, it was held that acceptance of rent by the landlord after service of quit notice under Section 106 of the Act itself does not amounts to waiver of notice or intention to threat the lease as subsisting. In this regard, the observation of the apex Court is noted below:
x x x The question is whether this by itself constitute an act on the part of the landlord showing an intention to treat the lease as subsisting. In our view, mere acceptance of rent did not by itself constituted an act of the nature envisaged by Section 113, Transfer of Property Act showing an intention to threat the lease as subsisting. The fact remains that even after accepting the rent tendered, the landlord did file a suit for eviction, and even while prosecuting the suit accepted rent which was being paid to him by the tenant. It cannot therefore, be said that by accepting rent he intended to waive the notice to quit and to treat the lease as subsisting. We cannot ignore the fact that in any event, even if rent was neither tendered nor accepted, the landlord in the event of success would be entitled to the payment of the arrears of rent. To avoid any controversy, in the event of termination of lease the practice followed by Court is to permit the landlord to receive each month by way of compensation for the use and occupation of the premises, an amount equal to the monthly rent payable by the tenant. It cannot, therefore, be said that mere acceptance of rent amounts to waiver of notice to quit unless there be any other evidence to prove or establish that the landlord so intended. In the instant case, we find no other fact or circumstance to support the plea of waiver. On the contrary the filing of and prosecution of the eviction proceeding by the landlord suggests otherwise.
7. After the rulings of the Supreme Court in 2006 (I) CLR (SC) 664 and 2005 SCC 243, it is now clear that unless there is express or implied consent on the part of the landlord to continue the tenancy, simple acceptance of rent tendered by the tenant after the quit notice would not amount to waiver under Section 113 or continuance of tenancy by holding over under Section 116 of the Transfer of Property Act. So, the substantial question No. (i) is answered against the appellant.
8. On the 2nd question of law, Mr. Mishra submits that the power of Attorney cannot give evidence on behalf of the plaintiff and even if power of attorney gives evidence, the plaintiff cannot escape the adverse inference of Section 114 of the Evidence Act. In support of this contention, he relies on the cases of Chinta Narayanamma alias Chinta Ammayamma v. Kholli Sahu and Ors. 54 (1982) C.L.T. 159 and Rajmuni Devi v. Smt. Shyama Devi and Ors. : AIR2007Pat142 , Janki Vashdeo Bhojwant and Anr. v. Indusind Bank Ltd. and Ors. : AIR2005SC439 and Vidhyadhar v. Manikrao and Anr. : [1999]1SCR1168 .
9. Mr. Guru, counter argues that there is no bar for the power of attorney to give evidence in support of the plaintiff's case, particularly when he has knowledge about certain aspects of the case. He states that it is not essential in every for the plaintiff to examine himself/herself as a witness and that only in cases where the plaintiff does not appear with malafide conduct, adverse inference under Section 114 of the Evidence Act can be drawn. In this regard also he relies on the case of Janki Vashdeo Bhojwant (supra). In the case of Rajmuni Devi (supra) the husband-power of attorney of the plaintiff was examined on her behalf. Considering the facts situation and the legal aspect, the Court observed that power of attorney holder cannot be allowed to depose in place of the principal, but can appear as a witness on behalf of the Principal. In the case of Janki Vashdeo Bhojwant (supra), the apex Court also maintained the same view and observed that the power of attorney holder cannot depose in place of the principal, but can examine himself as a witness for the principal and can state about the aspects within his knowledge. The judicial pronouncements thus make it clear that power of attorney cannot depose in place and instead of principal, but he can give evidence as a witness for the principal and state the facts within his knowledge, which would be admissible evidence. In the present case, the plaintiff did not examine herself, but examined two witnesses in support of her case, one of them being the power of attorney holder, who is also her son. Besides the oral evidence, she also produced number of documents, which were marked as Exts. 1 to 10. On consideration of these evidence, the Courts below recorded their findings. Now the question is whether the evidence of P.W. 1 - power of attorney of the plaintiff was admissible or whether adverse inference under Section 114 was drawable against the plaintiff. As has been observed by the apex Court, P.W. 1 cannot examine himself as a substitute for the plaintiff, but legally he was a competent witness to prove whatever was within his knowledge. It appears from the orders recorded by the Courts below that P.W.1 not only spoke about his personal knowledge on some aspects of the case, but also proved the documents as a witness. Examination of this witness was not objected to in the trial Court regarding proof of the documents were also not discro situation, the evidence of P. W.1 as a witness was legally.
10. The next question is whether in such a situs the documents and other aspects were proved by the witnes examination of the plaintiff herself would be fatal to her suit, been said in the case of Vidhyadhar v. Manikrao (supra) if a abstains from entering the witness-box, an adverse inference Would arise against him. This is based on the theory that if a party asserts something he/she should allow himself/herself to cross-examination. But law does not say any where that non-appearance of a party as a witness by itself would be fatal to his/her case even if evidence and witnesses are produced to prove the case. Despite non-examination of a party, if the case of a party is proved otherwise,' non-examination of the party will not be fatal for his/her case. In the present case, the learned Courts below have concurrently found from the evidence that the case of the plaintiff is established and the defendants are liable for eviction from the suit premises. When the evidence on record are otherwise sufficient to establish the plea of eviction, non-examination of the plaintiff herself was not fatal. Thus, the 2nd question of law is also answered against the appellant.
11. All said and done it has now brought to the notice of the Court that in the meantime execution has been carried and the appellants have already been evicted from the suit house. In this regard, the certified copy of the order dated 28.9.2007 passed by the learned Civil Judge (Senior Division), Berhampur has been produced. So, the issue has become academic.
In the above noted situation, the 2nd appeal is found to be without any merit and the same is dismissed. The judgment and decree of the Court below are confirmed. However in the above noted situation, the interest awarded by the Court below will not be proper. So, the award of interest is waived.