Judgment:
Rakesh Kumar Garg, J. (Oral)This is tenants' revision petition challenging the impugned order dated 7.12.2010 whereby their application for leave to defend, a petition filed under Section 13-B of East Punjab Urban Rent Restriction Act has been declined.
2. The brief facts of this revision petition are that the respondent-landlord claiming himself to be an NRI and owner of the demised premises for more than 5 years prior to the date of initiation of ejectment proceedings had filed the instant ejectment application against the petitioners under Section 13-B of the Rent Act alleging that he required the premises in dispute for his own use and occupation. He intends to come to India for starting his own new venture of import and export.
3. It was also mentioned in the said ejectment application that originally Sh. Rajinder Kumar Jain was owner of the premises in dispute. The petitioners took the premises in dispute on rent from him at the rate of Rs. 1200/- per month vide rent note dated 23.1.1984. Sh. Rajinder Kumar Jain had died on 11.10.2001. After his death, the respondent, who is son of aforesaid Rajinder Kumar Jain, has become the owner of the premises in dispute and the petitioners have become the tenants under him qua the premises in dispute on the terms and conditions of the rent note dated 23.1.1984 and there exists relationship of owner/tenant/landlord between the parties.
4. Upon notice, the petitioners appeared and filed an application under Section 18-A of the East Punjab Urban Rent Restriction Act, 1949 praying for leave to defend the aforesaid ejectment application submitting that the instant application was only an attempt in the disguise of bona fide need to get the premises vacated. The landlord has not even pleaded that he has returned to India even on temporary basis. The said petition has been filed through the general power of attorney Sh. Vijay Kumar Gupta, who cannot depose or verify the facts of personal need of the respondent and therefore, the said petition filed under Section 13-B of the Act was not maintainable. It was also pleaded that the respondent had not placed on record any document to certify his claim to become owner/landlord of the demised premises after the death of Sh. Rajinder Kumar Jain as there were other LRs of Rajinder Kumar Jain also and thus, the instant revision petition was without any merit and was liable to be dismissed.
5. While rejecting the prayer for leave to defend, the Rent Controller concluded that the petitioners have not been able to make out any prima facie case for grating leave to contest as in the case in hand, there was no dispute regarding the fact of respondent being Non Resident Indian and co- owner/landlord of the demised premises for more than 5 years and in view of the aforesaid facts, there was a presumption in favour of the respondent- landlord regarding his bona fide need and there was no evidence brought on record by the petitioners to rebut the same and therefore, their prayer was liable to be rejected. It was also found by the Rent Controller that Vijay Kumar Gupta was duly authorized to file the present petition and thus, the petition filed on behalf of the NRI landlord through the said power of attorney was maintainable.
6. Notice of motion was issued in this case on 4.1.2011. On 21.2.2011, the following order was passed by this Court:
"Learned counsel for the parties are, inter alia, adidem that the matter should await the decision of CR No. 4025 of 2006 (Smt. Bachan Kaur and Ors. v. Kabal Singh and another), decided on 29.9.2010, in which two questions have been referred to a larger Bench of this Court.
Adjourned sine die.
In the meantime, learned counsel for the petitioners has assured the Court that he would make the payment of entire arrears of rent. Interim order to continue."
7. It is not in dispute that CR No. 4025 of 2006 titled as "Smt. Bachan Kaur and Ors. v. Kabal Singh and another" has been decided by this Court on 26.4.2011 holding that a co-owner, who is a Non Resident Indian, can maintain a petition for ejectment for the benefit of all the co-owners even if other co-owner are not Non Resident Indian and further that a co-owner who has not inducted a tenant can seek eviction of such tenant as the rights and liabilities of the co-owner creates a legal fiction of tenancy against all co-owner.
8. However, learned counsel for the petitioners has further submitted before this Court that petition filed by the respondent-landlord through his attorney is not maintainable as a power of attorney cannot depose for a principal in respect of the matters for which principal has personal knowledge. Learned counsel for the petitioners has placed reliance on a judgment of the Hon'ble Supreme Court in Janki Vashdeo Bhojwani and another v. Indusind Bank Ltd. And others, 2005(1) RCR (Civil) 240 to contend that the Power of Attorney is empowered to act on behalf of the principal but in terms of Order 3 Rules 1 and 2 CPC, the Power of Attorney can depose for the principal in respect of acts rendered in pursuance of Power of Attorney and cannot depose for the principal for the acts done by the principal and not by him.
9. Elaborating his argument, learned counsel for the petitioners has further argued that the landlord in this case is an NRI and he has given a general attorney in favour of the Sh. Vijay Kumar Gupta and the facts regarding his personal need, which are to the personal knowledge of the respondent-landlord himself, cannot be deposed by the attorney.
10. However, on the other hand, learned counsel appearing on behalf of the respondent has relied upon a judgment of this Court in Satnam Channa v. Darshan Singh 2006(2) RCR (Civil) 614 wherein after discussing the various judgments of the Hon'ble Supreme Court including Baldev Singh Bajwa v. Monish Saini, 2005(4) RCR (Civil) 492 it is held as under:
"A perusal of the aforesaid judgments would show that normal Rule is that whatever a person can do himself, he can do through his agent but for certain functions which may be personal in nature or otherwise do not admit of such delegation. The argument that the statement of Power of Attorney cannot be read as a statement of a party to the lis is fraught with danger. A party may be ill, infirm, old or incapable of attending the Court personally. Does it mean that in spite of all the disabilities, the parties to the lis is to appear before the Court ' Obviously No. The appointment of attorney contemplated under the Contract Act as well as under the Power of Attorney Act, cannot be set to a naught by such interpretation sought to be put forward by the learned counsel for the petitioner.
The judgment in Janki Vashdeo Bhojwani's case (supra) relied upon by the learned counsel for the petitioner, infact, does not support the case set up by the petitioner. The reference in the said judgment has been made to Order 3 Rules 1 and 2 of the CPC. It has been held that the cases within the meaning of Order 3 Rules 1 and 2 of the CPC would not include deposing in place and instead of principal. It has been held that if the Power of Attorney renders some acts in pursuance of Power of Attorney, he may depose for principal in respect of such acts but he cannot depose for the principal for the acts done by the principal and not by him. It has been further held that he cannot depose for the principal in respect of the matters for which only the principal can have a personal knowledge in respect of which the principal is entitled to be cross-examined. The said judgment does not lay down a principle in absolute terms that an Attorney cannot depose on behalf of the principal even though the facts deposed are not facts of the personal knowledge of the principal.
Keeping in view the principles of law laid down in the judgments referred to by the learned counsel for the respondent, I am of the opinion that an Attorney is competent to depose in respect of all matters except, the matters which are required to be done personally by the principal. It can safely be concluded that normal rule is that whatever a person could do through himself, he can do through his agent except certain functions which may be personal in nature or otherwise do not admit of such delegation. In the present case, the statement of the Attorney is not such which could not be given by the Attorney. Therefore, I am of the opinion that no fault can be found with the statement of the Attorney who is none else but the son of the landlord."
11. Similarly in Anita Sood and Ors. v. Manjit Singh, 2011 (2) RCR (Civil) 741, this Court after relying upon Baldev Singh Bajwa's case (supra) held that mother as power of attorney was having such a relation that it cannot be said that she would not be knowing the personal needs of the respondent and in her capacity as power of attorney ejectment for bona fide requirement of her son was maintainable.
12. It may also be noticed at this stage that the attorney in the instant case is the father-in-law of the respondent-landlord and thus, it cannot be said that he is not in the knowledge of the personal facts which are necessary for disposal of this petition.
For the reasons mentioned above, this petition is without any merit and the same is dismissed.
Petition dismissed.