Hemant Gupta, J. — The challenge in the present revision petition is to the order of ejectment passed by the learned Rent Controller in terms of the provisions of 13-B of the East Punjab Urban Rent Restriction Act, 1949 (hereinafter referred to as ‘the Act’).
2. It is the case of the respondent-landlord that the petitioner is a tenant in he shop in dispute @ Rs. 125/- per month and by way of a family arrangement between the respondent and his brothers in the month of August, 1996, the premises exclusively fell to the share of the respondent. It was alleged that the respondent-landlord is a Non Resident India and wants to start his own business in the shop in dispute and, therefore, he requires the shop for his own use and occupation. The application filed by the petitioner for grant of leave to defend was allowed. The parties have led evidence and the learned Rent Controller returned a finding that the landlord has become owner of the premises by way of family settlement and such settlement cannot be challenged by the tenant. It was also found that the landlord satisfies all the essential prerequisite conditions to seek ejectment of the tenant such as he is owner of the building for more than five years prior to the filing of the petition and is not possessed of any other accommodation. It was also found that the landlord is a Non Resident India on the basis of passport Exhibit PW1.D and a copy of Senior Citizen Card issued by the California State. PW2 Balwinder Singh is the son and attorney of the landlord and has deposed that the landlord went to America in October 1996 and lastly came to India in 2001 and went back on 25.10.2002 Thus, the learned Rent Controller passed the order of ejectment.
3. Learned counsel for the petitioner has vehemently argued that the family settlement alleged by the respondent has not been proved. Though the learned Rent Controller has returned a finding that such family settlement cannot be disputed by the petitioner but as a matter of fact in the absence of family settlement, the respondent would be as one of the co-owners as the family settlement was alleged between the brothers. As a co-owner, the respondent is again entitled to seek ejectment for his bona-fide use and occupation of the premises in possession of a tenant. That is the view taken by the Hon'ble Supreme Court in Dhannalal v. Kalawatibai and others, 2002 (2) RCR (Rent) 126 : (2002) 6 SCC 16, which has been followed by this Court in Civil Revision No. 6938 of 2005 (Kewal Krishan…Petitioner v. Mohan Singh…, decided on 9.1.2006 : 2006 (2) RCR (Civil) 442 (P&H)).
4. Learned counsel for the petitioner has argued that the landlord himself has not stepped into the witness box but has examined his attorney and, therefore, the bona-fide requirement found by the learned Rent Controller is not sustainable. Reliance is placed on Janki Vashdeo Bhojwani and another v. Indusind Bank Ltd. and others, 2005 (1) RCR (Civil) 240 : (2005) 2 SCC 217, to contend that the Power of Attorney is empowered to act on behalf of the principal. 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 but cannot depose for the principal for the acts done by the principal and not by him.
5. The said case arose out of the facts where Mr. V.R Bhagwani appeared as a witness for his wife Mrs. Mohini Laxmikant Bhagwani. The Bank has objected to the examination of Power of Attorney. The Court found that having regard to directions in the order of remand by which the burden of proof was on the appellant, it was obligatory on the part of the appellant to have entered the witness box and discharge the burden, the Supreme Court has approved the view of Rajasthan High Court in Ram Prasad v. Hari Narain, AIR 1998 Rajasthan 185, following the earlier view taken in Shambhu Dutt Shastri v. State of Rajasthan, 1986 (2) Weekly Law Notes 713.
6. Learned counsel for the respondent has pointed out that as a matter of fact, the landlord has produced his affidavit dated 5.8.2002 in evidence but since he was not cross-examined by the petitioner, the landlord has to return to USA because of Visa restrictions. Therefore, he executed a registered Power of Attorney in favour of his son. Vide such Power of Attorney, the attorney has been given all rights in respect of his movable and immovable property including that of sale, lease and mortgage, to file case, to take possession, further appoint an attorney and to defend all civil, criminal and revenue matters in all Courts in respect of the said property. The said Power of Attorney contemplated that the attorney can perform all acts even if any such act has not been specifically mentioned in such attorney. Therefore, it is argued that no adverse inference can be raised for non-examination of the landlord personally. Still further reliance is placed upon Smt. Ramkubai and others v. Hajarimal Dhokalchand Chandak and others, AIR 1999 Supreme Court 3089, wherein the ground of personal requirement was negated by the Appellate Authority for the reason that the landlady herself did not come in the witness box. The High Court maintained the order passed by the Appellate Court, but the Hon'ble Supreme Court set aside the order passed by the learned Appellate Court on the ground that her son, who was also her General Power of Attorney holder, did come into witness box to support the case of personal requirement.
7. Learned counsel for the respondent has also relied upon State of Rajasthan and others v. Basant Nahata, 2005 (12) SCC 77, wherein the Hon'ble Supreme court has considered the legality of Section 22-A as inserted by Rajasthan Amendment Act No. 16 of 1976 by which certain Power of Attorneys were made invalid. The Court considered the provisions of Chapter X of the Contact Act as well as Sections 1 (A) and 2 of the Powers-of-Attorney Act, 1882. The Court held to the following effect :—
“13. A grant of power of attorney is essentially governed by Chapter X of the Contract Act. By reason of a deed of power of attorney, an agent is formally appointed to act for the principal in one transaction or a series of transactions or to manage the affairs of the principal generally conferring necessary authority upon another person. A deed of power of attorney is executed by the principal in favour of the agent. The agent derives a right to use his name and all acts, deeds and things done by him and subject to the limitations contained in the said deed, the same shall be read as if done by the donor. A power of attorney is, as is well known, a document of convenience.
14. Besides the Contract Act, the Powers-of-Attorney Act, 1882 deals with the subject. Section 1-A of the Powers-of-Attorney Act defines power of attorney to include any instruments empowering a specified person to act for and in the name of the person executing it. Section 2 of the said Act reads thus :—
“2. Execution under power of attorney. - The donee of a power of attorney may, if he thinks fit, execute or do any instrument or thing in and with his own name and signature, and his own seal, where sealing is required, by the authority of the donor of the power; and every instrument and thing so executed and done, shall be as effectual in law as if it had been executed or done by the donee of the power in the name, and with the signature and seal, of the donor thereof.
This section applies to powers of attorney created by instruments executed either before or after this Act comes into force.
Execution of a deed of power of attorney, therefore, is valid in law and subject to the provisions of the Act is not compulsorily registrable.”
8. It is pointed out that the provisions of Chapter X of the Contract Act particularly Section 188 contemplate that an agent having an authority to do an act has authority to do “every lawful thing”, which is necessary in order to do such thing. Section 186 of the Contract Act contemplates that authority of an Agent may be express or implied. Therefore, in a case of express authority manifested by a registered Power of Attorney, the Attorney so appointed is competent to do every lawful thing which is required. Relying upon Section 118 of the Evidence Act, it was argued that all persons are competent to testify unless the Court considers that they are prevented from understanding the questions put to them or from giving rational answers to those questions, by tender years, extreme old age, disease, whether of body or mind, or any other cause of the same kind. Thus, it was argued that Power of Attorney is a competent witness. However, the evidentiary value of such testimony is to be examined by the Court on the basis of the evidence led but his statement cannot be excluded from consideration only for the reason that he is an Attorney.
9. Learned counsel for the respondent has also referred to the Supreme Court Judgment reported as Baldev Baldev Singh Bajwa v. Monish Saini, 2005 (4) RCR (Civil) 492 : 2005 (2) RCR (Rent) 470. While deciding the bunch of appeals particularly SLP(C) 10865 of 2004, in the ejectment petition filed through an Attorney, the leave to defend was declined. The High Court has upheld the order passed by the Rent Controller and held that it is not necessary for an NRI to personally come and file the petition. Therefore, it is argued that if the Attorney can validly file a petition, the Attorney can very well testify as a witness as well.
10. Before proceeding further, it will be relevant to reproduce Sections 182 to 188 of the Contract Act, Section 118 of the Evidence Act and Section 1-A of Powers-of-Attorney Act.
Indian Contract Act, 1872
“182. “Agent” and “Principal” defined.—An “agent” is a person employed to do any act for another or to represent another in dealing with third persons. The person for whom such act is done, or who is so represented, is called the “Principal”
183. Who may employ agent. - Any person who is of the age of majority according to the law to which he is subject, and who is of sound mind, may employ an agent.
184. Who may be an agent. - As between the principal and third persons, any person may become an agent, but no person who is not of the age of majority and of sound mind can become an agent, so as to be responsible to his principal according to the provisions in that behalf herein contained.
185. Consideration not necessary - No consideration is necessary to create an agency.
186. Agent's authority may be expressed or implied. — The authority of an agent may be expressed or implied.
187. Definitions of express and implied authority. — An authority is said to be express when it is given by words spoken or written. An authority is said to be implied when it is to be inferred from the circumstances of the case; and things spoken or written, or the ordinary course of dealing, may be accounted circumstances of the case.
188. Extent of agent's authority. - An agent, having an authority to do an act, has authority to do every lawful thing which is necessary in order to do such act.
An agent, having an authority to cany on a business, has authority to do every lawful thing necessary for the purpose, or usually done in the course, of conducting such business.”
11. Evidence Act, 1872
“118. Who May testify. - All persons shall be competent to testify unless the Court considers that they are prevented from understanding the questions put to them, or from giving rational answers to those questions, by tender years, extreme old age, disease, whether of body or mind, or any other cause of the same kind.
Explanation. - A lunatic is not incompetent to testify, unless he is prevented by his lunancy from understanding the questions put to him and giving rational answers to them.”
12. Powers-of-Attorney Act, 1882
1A. Definition.—In this Act, “power of attorney” includes any instrument empowering a specified person to act for and in the name of the person executing it.
2. Execution under power-of-attorney. — The donee of a power-of-attorney may, if he thinks fit, execute or do any instrument or thing in and with his own name and signature, and own seal, where sealing is required, by the authority of the donor of the power, and every instrument and thing so executed and done, shall be as effectual in law as if it had been executed or done by the donee of the power in the name, and with the signature and seal, of the donor thereof.
This section applies to powers-of-attorney created by instruments executed either before or after this Act comes into force.”
13. After hearing learned counsel for the parties, I am of the opinion that appointment of an agent is a creation of a contract, which has got a statutory recognition as well. Authority to act as an agent can be express or implied. Chapter X of Contract Act provides that all powers which the principal can perform can be performed through the agent as well. Similarly Section 2 of the Powers-of-Attorney Act, contemplates that donee of a Power of Attorney can execute any instrument and with his own name and signature and every such instrument by the authority of donor and thing so executed and done shall be as effectual in law as it has been executed or done by the donee of the power in the name or signature and seal or signature of the donor thereof. Thus, any act done by the Attorney within the scope of the instrument appointing him attorney is deemed to be executed or done by the donee for and on behalf of the donor only.
14. In Syed Abdul Khader v. Rami Reddy and others, AIR 1979 Supreme Court 553, it has been held by the Hon'ble Supreme Court that relation between the donor of the power and the donee of the power is that one of principal and agent and the expression ‘agency’ is used to connote the relation which exists where one person has an authority or capacity to create legal relations between a person occupying the position of principal and third parties. The relationship has its genesis in a contract. In order to show that power of attorney was impermissible the provisions of Contract Act or general law of the contract should have been shown as having been violated by such a contract. The Hon'ble Supreme Court was considering the case whether there could be a joint power of attorney by three donors.
15. In P. Punnaiah and others v. Jeypore Sugar Co. Ltd. and others, AIR 1994 Supreme Court 2258, the Hon'ble Supreme Court has occasion to consider the consent of an attorney given under Section 399(3) of the Companies Act to application on ground of oppression and mismanagement. Such a consent was held to be valid since the attorney was authorised to institute suit, petitions and other proceedings with respect to shares or other movable or immovable properties of the principal. The Hon'ble Supreme Court has held as under :—
“7. A reading of the several clauses of the G.P.A discloses ex facie that the powers given thereunder are wide enough to take in the power to grant the consent under Section 399(3); Under the said deed, Smt. Rajeshwari empowered her father to manage and otherwise administer her movable and immovable properties including shares and stock as may be held by her and to take all proceedings before all the authorities and Courts concerning the said properties and shares. The deed also empowered him to sign all necessary papers relevant in that behalf and to file them in courts and generally to do all things as may be necessary to safeguard her interest. It is obvious that in pursuance of the said deed, it would have been perfectly legitimate for the first appellant to institute suit's, petitions and other proceedings with respect to the shares or other movable and immovable properties held by Smt. Rajeshwari. Indeed, it would well have been within the power of the G.P.A holder to have himself figured as an applicant, acting in the name of Smt. Rajeswhari, in the said application filed under Section 397/398. If so, there appears no reason why the consent could not have been given by the Power of Attorney holder which is only a step towards protecting the interest of Rajeshwari. It in effect means joining the filing of the application under Section 397/198. May be that there are some functions/duties which cannot be performed through a Power of Attorney Agent (e.g Quasi-judicial/judicial functions) but there appears to be no good reason why the consent contemplated by Section 399(3) cannot be given by such Power of Attorney holder, when indeed he could himself have filed such an application in the name of and on behalf of Smt. Rajeshwari.”
16. In T.C Mathai and another v. District & Sessions Judge, Thiruvananthapuram, AIR 1999 Supreme Court 1385, the Hon'ble Supreme Court was considering whether an agent with power of attorney but who is not authorised by Court can appear for accused before the criminal Court. It was held that the work in a Court of law is a serious and responsible function. Any lax or wayward approach, if adopted towards the issues involved in the case, can cause serious consequences for the parties concerned. Thus, it was held that a person has a right of being defended by a pleader of his choice. The pleader is defined in Section 2(q) of the Code of Criminal Procedure. Any other person can be appointed to plead the cause of the accused with the permission of the Court. In the said judgment, the Court has discussed the scope of power of attorney holder. The relevant extract reads as under :—
“In Stroud's “Judicial Dictionary”, power of attorney is described as “an authority whereby one is set in the turne, stead, or place of another to act for him”. In Black's Law Dictionary it is described as the instrument by which a person is authorised to act as an agent of the person granting it. Section 2 of the Powers of Attorney Act, 1882 empowers the donee of a power of attorney to do anything “in and with his own name and signature” by the authority of the donor of the power. Once such authority is granted the said Act recognises that everything done by the donee “shall be as effectual in law as if it had been done by the donee of the power in the name and with the signature of the donor thereof.”
“Under the English Law, “every person who is sui juris has a right to appoint an agent for any purpose whatsoever, and he can do so when he is exercising statutory right no less than when he is exercising any other right”, [vide Jackson & Co. v. Napper, (1886) 35 Ch.D 162 at page 172];. But this Court has pointed out that the aforesaid common law principle does not apply where the act to be performed is personal in character, or when it is annexed to a public office or to an office involving any fudiciary obligation, [vide Rayulu Subba Rao v. Commr. of Income-tax, Madras, AIR 1956 SC 604];.”
17. The provisions of Chapter X of Contract Act came up for consideration recently before the Hon'ble Supreme Court in Chairman, Life Insurance Corporation and others v. Rajiv Kumar Bhasker, 2005 (3) SCT 670 : (2005) 6 SCC 188, wherein, it was held to the following effect :—
“26. The definition of “agent” and “principal” is clear. An agent would be a person employed to do any act for another, or to represent another in dealings with third parties and the person for whom such act is done or who is so represented is called the principal. It may not be obligatory on the part of the Corporation to engage an agent in terms of the provisions of the Act and the Rules and Regulations framed thereunder, but indisputably an agent can be appointed for other purposes. Once an agent is appointed, his authority may be express or implied in terms of Section 186 of the Contract Act.
27. For creating a contract of agency, in view of Section 185 of the Indian Contract Act, even passing of the consideration is not necessary. The consideration, however, so far as the employers are concerned as evidenced by the Scheme, was to project their better image before the employees.”
18. 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 inspite 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 Powers of Attorney Act, cannot be set to a naught by such interpretation sought to be put forward by the learned counsel for the petitioner.
19. 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.
20. 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.
In view of the above, I do not find any material illegality or irregularity in the order of ejectment passed against the petitioner in terms of Section 13-B of the Act.
Hence, the present petition is dismissed.
However, it is made clear that the ejectment order shall not be executed for a period of two months from today.
Petition dismissed.
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