Madras High Court
M.M.Shahul Hameed vs Zubaitha Gani Kader on 2 February, 2021
CRP.PD.No.2367 of 2016
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 02.02.2021
CORAM
THE HON'BLE MR. JUSTICE G.K.ILANTHIRAIYAN
CRP.PD.No. 2367 of 2016
and
CMP.No.12225 of 2016
M.M.Shahul Hameed ... Petitioner
Vs.
Zubaitha Gani Kader ... Respondent
PRAYER: The Civil Revision Petition is filed under Article 227 of the
Constitution of India, praying to set aside the fair order and decretal order
dated 15.06.2016 passed in M.P.No.176 of 2016 in RCOP No.1598 of 2015
on the file of the XIII Court of Small Causes-cum-Rent Controller, Madras.
For Petitioner : Mr.T.M.Mano for
Mr.Govind Chandrasekhar
For Respondent : Mr.S.Umapathy
ORDER
This Civil Revision Petition is directed as against the fair and decretal
order passed in M.P.No.176 of 2016 in RCOP No.1598 of 2015 dated
15.06.2016 on the file of the XIII Court of Small Causes-cum-Rent
Controller, Madras, thereby, dismissing the petition to eschew the evidence
of P.W.1.
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CRP.PD.No.2367 of 2016
2. The learned counsel for the petitioner submitted that the petitioner
is the tenant of the petition premises. The respondent filed a petition
through her power agent for eviction, on the ground of willful default in
payment of contractual rent for the period from 01.10.2014 to July 2015. In
the course of trial, the power of attorney filed his proof affidavit as P.W.1.
At that juncture, the petitioner herein filed a petition to eschew the evidence
of P.W.1, for the reason that the power of attorney holder of a party can
appear only as witness in his personal capacity and whatever knowledge he
has about the case, he can state on oath and he cannot appear as a witness
on behalf of the party in the capacity of that party. In support of his
contention, he relied upon the judgment reported in 2019 (9) CTC 358
(Mohinder Kaur -vs- Sant Paul Singh).
3. The learned counsel for the respondent submitted that the power
holder also filed another RCOP for fixation of fair rent and after fixing the
fair rent, the petitioner herein failed to comply the said order and as such,
the eviction was ordered in RCOP.No.720 of 2017. Therefore, nothing
survives in this Civil Revision Petition.
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CRP.PD.No.2367 of 2016
4. Heard the learned counsel for the petitioner as well as the learned
counsel for the respondent.
5. Though the eviction was ordered as against the petitioner herein in
RCOP.No.720 of 2017 on the file of the XIII Small Causes Court, Chennai,
the legal issue raised by the petitioner herein has to be dealt with in
accordance with law. The only ground raised by the petitioner is that the
Power of Attorney does not have personal knowledge of the matter as that
of the principal and therefore, he can neither depose on his personal
knowledge nor can he be cross-examined on those facts which are to the
personal knowledge of the principal. In support of his contention, the
learned counsel for the petitioner relied upon the judgment reported in 2005
(2) SCC 217 (Janaki Vashdeo Bhojwani vs.Indus Ind Bank Limited), in
which, this Court held as follows:-
“The power of attorney holder does not have the
personal knowledge of the matter of the appellants and
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CRP.PD.No.2367 of 2016
therefore he can neither depose on his personal knowledge
nor can he be cross-examined on those facts which are to the
personal knowledge of the principal. Order III, Rules 1 and 2
CPC, empowers the holder of power of attorney to “act” on
behalf of the principal. In our view the word “acts”
employed in Order III, Rules 1 and 2 CPC, confines only in
respect of “acts” done by the power of attorney holder in
exercise of power granted by the instrument. The term “acts”
would not include deposing in place and instead of the
principal. In other words, if the power of attorney holder has
rendered some “acts” in pursuance to power of attorney, he
may depose for the principal in respect of such acts, but he
cannot depose for the principal for the acts done by the
principal and not by him. Similarly, he cannot depose for the
principal in respect of the matter which only the principal
can have a personal knowledge and in respect of which the
principal is entitled to be cross-examined.”
6. The dictum is also followed the Hon'ble Supreme Court of India in
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CRP.PD.No.2367 of 2016
2019 (9) CTC 358 (Mohinder Kaur vs.Sant Paul Singh), in which, the case
cited as follows:-
“7. In Janki Vashdeo, it was held that a power-of-
attorney holder, who has acted in pursuance of the said power,
may depose on behalf of the principal in respect of such acts
but cannot depose for the principal for the acts done by the
principal and not by the power-of-attorney holder. Likewise,
the power-of-attorney holder cannot depose for the principal
in respect of matters of which the principal alone can have
personal knowledge and in respect of which the principal is
entitled to be cross-examined. In our opinion, the failure of the
respondent to appear in the witness box can well be
considered to raise an adverse presumption against him as
further observed therein as follows:-
“15. Apart from what has been stated, this Court in
Vidhyadhar v.Manikarao observed at SCC 583-84, para
17 that:
'17. Where a party to the suit does not appear in the
witness box and states his own case on oath and does not
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CRP.PD.No.2367 of 2016
offer himself to be cross-examined by the other side, a
presumption would arise that the case set up by him is not
correct....' ”
7. In the case on hand, the power of agent of the principal filed the
petition for eviction on the ground of willful default. Admittedly, the power
agent is the collection agent and he is regularly collecting rents from the
tenants, in respect of the petition premises. Therefore, he had knowledge
about the collection of rents for the petition premises. Therefore, the above
cases cited by the learned counsel for the petitioner are not applicable to the
case on hand. Therefore, this Court finds no irregularity or infirmity in the
order passed by the Court below.
8. Accordingly, this Civil Revision Petition is dismissed.
Consequently, the connected Miscellaneous Petition is closed. No costs.
02.02.2021
Speaking/Non-speaking order
Index : Yes/No
Internet : Yes/No
kv
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CRP.PD.No.2367 of 2016
To
The XIII Court of Small Causes-cum-Rent Controller, Madras.
G.K.ILANTHIRAIYAN,J.
Kv
CRP.PD.No. 2367 of 2016
https://www.mhc.tn.gov.in/judis/
CRP.PD.No.2367 of 2016
02.02.2021
https://www.mhc.tn.gov.in/judis/
