Jharkhand High Court
Rajesh Kumar Jain & Others vs Smt. Kanta Jain on 9 January, 2025
Author: Anubha Rawat Choudhary
Bench: Anubha Rawat Choudhary
IN THE HIGH COURT OF JHARKHAND AT RANCHI
S.A. No. 254 of 2018
With
I.A. No. 5244 of 2023
Rajesh Kumar Jain & Others ... ... Appellants
Versus
Smt. Kanta Jain ... ... Respondent
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CORAM: HON'BLE MRS. JUSTICE ANUBHA RAWAT CHOUDHARY
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For the Appellants : Mr. Akhouri Prakhar Sinha, Adv.
Mr. Aniket rohan, Advocate
Mr. Arbind Kr. Sinha, Advocate
For the Respondent : Ms. Pooja Agrawal, Advocate
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th
08/9 January 2025
1. Heard the learned counsel appearing on behalf of the parties.
I.A. No. 5244 of 2023
2. The learned counsel for the appellants has submitted that I.A. No.
5244 of 2023 has been filed to include the following substantial question
of law for decision in this case: -
whether the evidence led by the general power of attorney
holder dated 12.03.2013 (Exhibit-2) (marked with objection),
after institution of suit could have been looked into by both the
courts below for the incidence/facts happened prior to
institution of the suit?
3. The learned counsel for the appellants submits that in the present
case PW-1 was the constituted attorney of the plaintiff. He submits that
there is no absolute bar in examination of constituted attorney as witness
but she could not have deposed for the landlord in connection with the
acts done by the landlord and which were not done by her and she also
could not have deposed in connection with the matters which were within
the personal knowledge of the landlord. The learned counsel submits that
in the present case, PW-1 has deposed by referring to the acts done by the
previous landlord and therefore the aforesaid substantial question of law
arises for consideration by this Court. The learned counsel has also
submitted that PW-1 had deposed that after the purchase, the plaintiff as
well as the previous landlord had given information to the defendant(s)
about the same. He submits that this was essentially arising out of
personal knowledge of the landlord and this could not have been deposed
by the power of attorney. He submits that the consequence of such
deposition of the power of attorney holder has to be considered in the light
of the evidence of power of attorney holder and its consequence in the
eviction suit.
4. The learned counsel for the respondent has referred to the appellate
court's judgment and has submitted that this aspect of the matter has been
taken care of and it has been held that non-examination of the original
landlord in person and examination of power of attorney of the plaintiff
was not a defect which goes to the root of the case.
5. The learned counsel for the respondent has referred to paragraph 8.7
of the trial court's judgment and has submitted that the learned trial court
has also held that non-examination of the original landlord in the eviction
suit was not bad in law. She submits that both the courts have given
concurrent findings in connection with the consequence of non-
examination of the original landlord and no question of law as sought to
be introduced through the interlocutory application arise for consideration
in this case. She submits that the information regarding purchase of
property by the plaintiff was given by the plaintiff as well as the previous
landlord to the appellant (tenant) has no material impact in the findings of
the learned courts.
6. After hearing the learned counsel for the parties, going through the
impugned judgments and considering the aforesaid facts and
circumstances of this case, this Court is of the view that the evidence of
the P.W-1 and non-examination of the previous landlord has an
important bearing in this case and aforesaid substantial question of law
does arise for consideration in this second appeal. Accordingly, the same
will be considered along with the substantial question of law already
framed by this court.
7. Accordingly, I.A. No. 5244 of 2023 is hereby allowed.
8. Learned counsel for the parties have commenced their arguments
with respect to the question of law which has already been formulated by
this Court in the earlier order and also the additional substantial question
of law which has been allowed to be canvassed through the I.A. No. 5244
of 2023.
9. It has been submitted that the property involved in this case in
which the appellants were the tenants has been transferred in favour of the
respondent by registered sale-deed dated 08.02.2008 during the pendency
of Title Suit No. 20 of 2007 which was filed by the appellants for specific
performance of contract for the purposes of execution of sale deed in
favour of the tenant pursuant to unregistered agreement of sale dated
22.02.2006 while the tenant was in possession of the property.
10. As the Court's time is over, post this case for further hearing on 16 th
January 2025 to be taken up at 02.15 p.m.
11. Let this matter be treated as part-heard.
(Anubha Rawat Choudhary, J.)
Mukul
