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Smt. Shanti Devi Agarwal Vs. V.H. Lulla - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtMadhya Pradesh High Court
Decided On
Case NumberCivil Revision Nos. 83 and 122/2003
Judge
Reported inAIR2004MP58; 2003(4)MPHT57; 2003(4)MPLJ138
ActsPower of Attorney Act, 1882 - Sections 1A ; Power of Attorney (Amendment) Act, 1982; Stamp Act, 1899 - Sections 2(21); Evidence Act, 1872 - Sections 3 and 118; Madhya Pradesh Accomodation Control Act, 1961 - Sections 23A and 29; Code of Civil Procedure (CPC) , 1908 -Sections 151 - Order 3, Rules 1 and 2; ;Madhya Pradesh Accomodation Control Rules, 1966 - Rule 16
AppellantSmt. Shanti Devi Agarwal
RespondentV.H. Lulla
Appellant AdvocateA.M. Naik, Sr. Adv. and ;Sumant Mishra, Adv. in C.R. No. 83/2003 and ;B.B. Shukla, Adv. in C.R. No. 122/2003
Respondent AdvocateB.B. Shukla, Adv. in C.R. No. 83/2003 and ;A.M. Naik, Sr. Adv. and ;Sumant Mishra, Adv. in C.R. No. 122/2003
DispositionPetition dismissed
Cases ReferredPrathamik & Madhyamik Vidyalaya Shikshak Samiti and Ors. v. Vijay Madhyamik Vidyalaya Samiti
Excerpt:
.....evidence on her behalf and also closed plaintiff's evidence - order challenged in civil revision - rent authority has recalled said order in part to correct mistake of closing plaintiff's evidence - hence, present petition by defendant - recalling of order challenged by defendant on ground that rent authority has no power to recall earlier order after closing plaintiff's evidence - held, there is no ambiguity that rent controlling authority can exercise inherent powers under section 151 of cpc and can recall its order passed under mistake or fraud - in instant case, rent authority not only rejected affidavit of plaintiff's son filed in court by way of plaintiff's examination-in-chief, but in said order committed serious error by closing entire evidence of plaintiff's side - by impugned..........of the defendant seeking to reject the affidavit of the plaintiff's son, filed under order 18 rule 4 of the code, on the strength of a power of attorney to that effect, shall also dispose of the civil revision no. 122/2003 which impugns an interim order dated 27-3-2003 in the same case, whereby the authority has recalled in part the order dated 9-12-2002 to correct a mistake of closing the plaintiff's evidence while deciding the question as whether the plaintiff's on being the power of attorney holder was entitled to lead evidence on her behalf, by filing an affidavit.2. it is said that one smt. shanti devi agarwal (hereinafter referred to as the 'plaintiff') filed an application under section 23-a (a) of the m.p. accommodation control act (hereinafter referred to as the 'act').....
Judgment:
ORDER

Uma Nath Singh, J.

1. This order, deciding the Civil Revision No. 83/2003 filed against an order dated 9-12-2002, in the Case No. 2/2000-2001/90-7 passed by the Rent Controlling Authority, Gwalior, allowing an application under Order 3 Rule 2 of the CPC (hereinafter referred to as 'the Code') of the defendant seeking to reject the affidavit of the plaintiff's son, filed under Order 18 Rule 4 of the Code, on the strength of a power of attorney to that effect, shall also dispose of the Civil Revision No. 122/2003 which impugns an interim order dated 27-3-2003 in the same case, whereby the authority has recalled in part the order dated 9-12-2002 to correct a mistake of closing the plaintiff's evidence while deciding the question as whether the plaintiff's on being the power of attorney holder was entitled to lead evidence on her behalf, by filing an affidavit.

2. It is said that one Smt. Shanti Devi Agarwal (hereinafter referred to as the 'plaintiff') filed an application under Section 23-A (a) of the M.P. Accommodation Control Act (hereinafter referred to as the 'Act') against V.H. Lulla (hereinafter referred to as the 'defendant') for eviction from her house No. 17 (Municipal No. 31/1481) situated at Prem Nagar, Gwalior, on the ground of bona fide requirement. It appears from the pleadings that the defendant has been staying as a tenant in the disputed premises at a monthly rent of Rs. 600/-. The electricity and water charges are payable separately. The ground of bona fide requirement as pleaded in the application seems to be related to a requirement of residence of one Mukesh Kumar Agarwal, the youngest son of the plaintiff, who is said to be residing in a rented house. The plaintiff appears to have been residing in a portion of her another house situated at Sadar Bazar, Morar, with her another son namely Mahesh Chand Agarwal and his family. It also appears that the plaintiff and her son Mukesh have no other alternative vacant accommodation of reasonable size suitable for their residential purpose in the City of Gwalior.

3. It appears that the defendant was granted leave to defend under Section 23-C of the Act and he submitted a written statement denying the ground of bona fide requirement of the landlord/plaintiff for eviction. The defendant appears to have pleaded like : the plaintiff was not the sole owner of the premises in question, the plaintiff does not need the premises, and he also owns some other alternative accommodation in the city, and the defendant is paying a monthly rent of Rs. 600/- with a further amount of Rs. 100/- per month towards the water and electricity charges.

4. It seems that the plaintiff being an elderly lady of about 78 years had given the power of attorney dated 16-10-2002 in favour of her son Banwarilal to contest the case and lead evidence on her behalf before the Rent Controlling Authority in this case and also in other pending cases. It further seems that the plaintiff had submitted an application under Order 7 Rule 14 (3) of the Code and had sought leave to submit certain more documents like : a registered sale deed and house tax receipts in respect of a house situated at C.P. Colony, Morar, Gwalior. By the order dated 942-2002 impugned in the Civil Revision No. 83/2003 the said application was allowed and the documents were taken on record. However, the Rent Controlling Authority by the same order while allowing an application of the defendant under Order 3 Rule 2 of the Code read with Section 118 of the Evidence Act, rejected an affidavit of the plaintiff's son, the power of attorney holder, for recording of evidence on her behalf and also closed the plaintiff's evidence. Thus the first part of the order dated 7-12-2002 appears to be in favour of the plaintiff and the second one in that of the defendant. It seems that in an application under Section 151 of the Code by a subsequent order dated 27-3-2003 impugned in the Civil Revision No. 122/03, the said order of closing the plaintiff's evidence in toto was recalled by following the decisions of this Court in the cases of (1) Baburao Vyas v. Vijay Mahajan (1984 MPWN Note 6) and (2) Vijay Pre-Prathamik & Madhyamik Vidyalaya Shikshak Samiti and Ors. v. Vijay Madhyamik Vidyalaya Samiti (1986 MPLJ 541). In Babu Rao's case this Court held that the powers under Section 151 of the Code could be exercised in a case of application for restoration which was treated as a review and also where certain provisions of law were found to have been overlooked. In Vijay Pre-Prathamik's case, it was held that a Court can correct a mistake under Section 151 of the Code.

5. The order dated 9-12-2002 has been challenged in the Civil Revision No. 83/2003 only on a limited ground that the Rent Controlling Authority has seriously erred in rejecting the affidavit of the plaintiff's son being the power of attorney holder filed as the plaintiffs examination-in-chief under Order 18 Rule 4 of the Code, whereas, the subsequent order dated 27-3-2003 has been challenged by the defendant in the Civil Revision No. 122/2003 on the ground that the Rent Controlling Authority was not empowered to recall the earlier order dated 9-12-2002 of closing the plaintiff's evidence.

6. The plaintiff has assailed the order also on a ground that the Rent Controlling Authority has misconstrued and misapplied the provisions of Order 3 Rule 2 of the Code and of Section 118 of the Evidence Act. The said provisions of Order 3 Rule 2 of the Code on re-production read as :


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