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Parikh Amratlal Ramanlal and ors. Vs. Rami Mafatlal Girdharlal and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtGujarat High Court
Decided On
Judge
Reported in(1982)2GLR337
AppellantParikh Amratlal Ramanlal and ors.
RespondentRami Mafatlal Girdharlal and ors.
Cases ReferredVirendra Dwarkadas Mehta v. Rajkamal Foundry and Ors.
Excerpt:
.....but an interesting an question regarding the legality of deposition given by the general power of attorney holder of a party before the tenancy authorities. 4. in the present petition it has been contended before me that the tribunal has committed a patent error of law in taking the view that a general power of attorney holder of a party was not a competent witness who could depose on oath before the mamlatdar who was conducting a judicial proceeding and who could exercise the same powers as a mamlatdar's court under the mamlatdar courts act, 1906 and who bad to follow the provisions of the said act, as laid down by section 72 read with section 80 of the act. shah, learned advocate for the petitioner are well sustained. a power of attorney holder has no right to plead before a court and..........but an interesting an question regarding the legality of deposition given by the general power of attorney holder of a party before the tenancy authorities. the learned member of the gujarat revenue tribunal (hereinafter referred to as the tribunal) mr. v.b. bakshi has taken the view that the general power of attorney holder of a party cannot depose on oath before the mamlatdar holding an inquiry under section 32-g read with section 29 of the bombay tenancy and agricultural lands act, 1948 (hereinafter referred to as the act) and accordingly the learned member of the tribunal has remanded the proceedings for a fresh decision by the mamlatdar. the aforesaid view of the tribunal has been challenged by the dissatisfied applicants in the present proceedings under article 227 of the.....
Judgment:

S.B. Majmudar, J.

1. This petition raises a short but an interesting an question regarding the legality of deposition given by the general power of attorney holder of a party before the tenancy authorities. The learned Member of the Gujarat Revenue Tribunal (hereinafter referred to as the Tribunal) Mr. V.B. Bakshi has taken the view that the general power of attorney holder of a party cannot depose on oath before the Mamlatdar holding an inquiry under Section 32-G read with Section 29 of the Bombay Tenancy and Agricultural Lands Act, 1948 (hereinafter referred to as the Act) and accordingly the learned Member of the Tribunal has remanded the proceedings for a fresh decision by the Mamlatdar. The aforesaid view of the Tribunal has been challenged by the dissatisfied applicants in the present proceedings under Article 227 of the Constitution of India.

2. A few relevant facts deserve to be noted at this stage. The petitioner no. 1 is the try steel and administrator of an institution known as Sanskrit Pathshala, functioning at Petlad, District Kaira. Petitioner no. 2 is 3 trust which is running and financing the said pathshala. They have taken land in dispute on lease from another trust known as Narsinhji Maharaj Mandir. Trust, respondent no. 3 herein. Respondent no. 2 is the Mahant of the said Narsinhji Maharaj Mandir and respondent No. 1 is a person who claims to be the tenant of the disputed land. Respondent No. 1 filed a tenancy application, being Ganot Case No. 32-G-163/29 and 31 before the Mamlatdar, Petlad, for a declaration that he is the tenant of the lands bearing S. No. 101 situated in the sim of Petlad admeasuring 2 bighas out of 5 acres 3 gunthas, and also for a declaration that he has become the deemed purchaser and for the possession of the said land. The said application after inquiry and recording of evidence came to be dismissed by the Mamlatdar by his order dated 8-2-1979 holding that the respondent No. 1 was not the tenant of the disputed land.

3. Thereafter the respondent no. 1 carried the matter in appeal to the Deputy Collector, Petlad, by way of Tenancy Appeal No. 105 of 1979, which was dismissed by the Deputy Collector. The respondent no. I thereafter carried the matter in revision under Section 76 of the Act before the Tribunal. In the said revision application before the Tribunal a contention was raised for the first time on behalf of the respondent no. 1 that in the inquiry held by the mamlatdar, the general power of attorney holder of petitioner no. 1 (original opponent No. 1 before the Tribunal) had given his deposition as power of attorney holder of Amratlal Ramanlal Parikh, who claimed to be the Trustee and Administrator of Sanskrit pathshala Instruction, Petlad. It was contended that the power of attorney holder has no legal right to give deposition as a power of attorney and hence the said deposition was recorded contrary to law and was required to be expunged from the record. The learned Member of the Tribunal accepted the said contention raised on behalf of the respondent no. 1 and directed that the matter be remanded back in as much as the petitioner no. 1 (opponent no. 1 before the Tribunal) had to be given opportunity to lead evidence by examining himself.

4. In the present petition it has been contended before me that the Tribunal has committed a patent error of law in taking the view that a general power of attorney holder of a party was not a competent witness who could depose on oath before the Mamlatdar who was conducting a judicial proceeding and who could exercise the same powers as a Mamlatdar's Court under the Mamlatdar Courts Act, 1906 and who bad to follow the provisions of the said Act, as laid down by Section 72 read with Section 80 of the Act. It was further contended that the Tribunal had committed a patent error of law in taking the view that under the provisions of Order 3 Rule 2 of the Civil Procedure Code the general power of attorney bolder of a party would not be permitted to depose before the Court and that the amendment made by the Gujarat High Court in 1961 in respect of Order 3 Rule 2 Clause (a) being inconsistent with the provisions of the Code of Civil Procedure as amended by the Act of 1976, the said amendment made by the Gujarat High Court stands repealed on the commencement of the said amendment Act, in view of Section 97(1) of the Code of Civil Procedure (Amendment) Act, 1976. It was contended that the aforesaid reasoning of the Tribunal is patently erroneous.

5. The contentions raised by Mr. S.R. Shah, learned Advocate for the petitioner are well sustained. The learned Member of the Tribunal has based his conclusion to the effect that a power of attorney holder of a party cannot depose on behalf of his principal before the mamlatdar in tenancy proceedings held by him, on two grounds:

(1) under Order 3 Rule 2 C.P.C. a power of attorney holder has no right to plead before a Court and to examine and cross-examine witnesses being a part of the act of pleading, the provisions of Order 3 Rule 2 Clause (a) would not enable such a power of attorney holder of a party to a judicial proceedings to have audience before the Court and even to depose on behalf of his principal, and

(2) the amendment made by the High Court of Gujarat in respect of Clause (a) of Rule 2 of Order 3 has stood repealed by Section 97 of the Code of Civil Procedure (Amendment) Act, 1976.

The aforesaid grounds pressed in service by the learned Member of the Tribunal to base his conclusion that a power of attorney holder of a party in judicial proceedings before the mamlatdar has no right to depose on oath on behalf of the party whom he represented are clearly unsustainable. It must be realised that the petitioner No. 1 who is a party to the proceedings, has given a general power of attorney to one Chimanlal Bhogilal, who appeared before the mamlatdar and deposed on oath as to the facts of the case which according to him were within his knowledge. The facts to which he deposed were obviously relevant to the question in dispute. The learned Member of the Tribunal thought that under Order 3 Rule 2(a) C.P.C. such a power of attorney holder has no audience before the Court. For taking that view the learned Member of the Tribunal heavily leaned on a decision of the Bombay High Court in Aswin Shambhuprasad Patel and Others vs . National Rayon Corporation Ltd. : AIR1955Bom262 . In the aforesaid decision Chagla C.J., as he then was, had to consider entirely a different question. In that case, the petitioner before the Bombay High Court had appeared in a Civil Revision Application through his power of attorney holder and when the said C.R.A. came up for hearing before Chagla C.J., the powers of attorney holder of the petitioner wanted to address the Court on behalf of his principal and the question was whether a constituted attorney had a right of audience in the Court on behalf of party. Now, it is clear that to a constituted attorney of a party the right of audience is clearly circumscribe by the provisions of Oder 3 Rule 2 C.P.C. Order 3 C.P.C. deals with recognized agents and pleaders. Rule I of order 3 provides for appearances, etc. in the Court and it provides that any appearance, application or act in or to any Court, required or authorized by law to be made or done by a party in such Court, may, except where otherwise expressly provided by any law for the time being in force, be made or done by the party in person, or by his recognized agent or by a pleader appearing, applying or acting, as the case may be, on his behalf, provided that any such appearance shall, if the Court so directs, be made by the party in person. As per the aforesaid rule, either the party in person may appear himself to address the Court or he may appear through his recognized agent or he may appear by a pleader. The appointment of pleader is provided by Rule 4 of Order 3. So far recognized agents are concerned. Order 3 Rule 2 Clause (a), which is material for our purpose, has been completely substituted for original Order 3, Rule 2(a) by Gujarat amendment of 1961 which reads as under:

(a) Persons holding on behalf of such parties either:

(i) a general power of attorney, or

(ii) in the case of proceedings in the High Court of Gujarat an advocate, and in the case of proceedings in any district an advocate or a pleader to whom a sanad for that district has been issued holding the requisite special power of attorney from parties not resident within the local limits of the jurisdiction of the Court within which limits the appearance, application or act is made or done, authorising them or him to make and do such appearances, applications and acts on behalf of such parties.

Reading the aforesaid Gujarat amendment to Order 3 Rule 2 Sub-rule (a) it appears clear that even a general power of attorney holder is considered to be a recognized agent of a party who can appears, apply and act in a Court. The decision of Chagla C.J. in Aswin's case (supra) lays down that the expression appearance, application or act in or to any Court in Order 3, Rule 1 C.P.C. does not include pleading. The right of audience in Court, the right to address the Court, the right to examine and cross-Examine witnesses are all parts of pleading with which Order 3 does not deal at all. It deals with a restricted class of acts in connection with the litigation in Court and it is with regard to that restricted class of acts that 0. 3 permits recognised agents to be appointed. It has been further laid down in the aforesaid decision that Order 3 does not deal with the rights of parties who appear in person in Court and it cannot be disputed that a party in person has the right of audience in Court. Order 3 merely deals with recognised agents and pleaders. It does not even deal with the right of pleaders to plead, because the right to a pleader to plead arises independently of Order 3. Thus construing the aforesaid provisions of Order 3 rules I and Rule 2(a), it has been held in the aforesaid decision that a recognised agent has no right of audience in High Court, as the right of audience does not form part of an appearance, application or act in or to any Court. Thus, the only conclusion to which Chagla C.J., as he then was, reached in the aforesaid decision is that a recognized agent cannot address a Court as it would not amount to an appearance, application or act in or to any Court, and only in that light it has been observed that the right of audience in Court, the right to address the Court, the right to examine and cross-examine witnesses are all parts of pleading with which Order 3 does not deal at all. It is difficult to comprehend as to how the ratio of the aforesaid decision can be applied to the present case.

6. It is an admitted position that petitioner No. 1 was permitted to appear through his Advocate before the mamlatdar. The petitioner no. I in order to prove the case sought to rely on the deposition of his own general power of attorney holder, who was staying at Petlad and who was in know of the relevant facts on which he could deposed. There was no question of his power of attorney holder pleading on behalf of his principal. There was no question of his examining or cross-examining witnesses on behalf of his principal namely, petitioner no. 1. The conduct of the case was in the hand of the pleader of the petitioner no. 1, who had appeared on behalf of the petitioner No. 1 althroughout in the present proceedings before the mamlatdar and had cross-examined respondent No. 1 and the witnesses examined by him to prove his case. There was no question of power of attorney holder of petitioner No. 1 demanding an audience before the mamlatdar or seeking to argue the case on behalf of his principal. He only entered the box and gave his deposition on oath about what he knew in relation to the matter in controversy. For such a type of case the ratio of Bombay High Court in Aswin's case (supra) can never be pressed in service. The said judgment decided a limited controversy as to whether a general power of attorney holder can address the Court on behalf of the principal who was revisional petitioner before the High Court of Bombay. It was held that the power of attorney could not address the Court. That right would be only of a practising Advocate or party himself. To apply the ratio of the aforesaid decision to the facts of the present case would be both a high and long jump. So far as the facts of the present case are concerned, the relevant provisions of the Evidence Act afford the real answer. The moot question is as to whether the power of attorney holder of a party can be a competent witness before a judicial Tribunal or a Court. This question is squarely answered by the legislature by enacting Section 118 of the Indian Evidence Act, as far back as 1872. It reads as under:

118. 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 Lunacy from understanding the question put to him and giving rational answers to them.

It is, therefore, obvious that before a Court or a judicial Tribunal which is entitled to record evidence, any person is competent to testify unless he falls within the exception provided by the explanation to Section 118 of the Indian Evidence Act. The power of attorney holder of a party, only on the ground that he holds the power of attorney, cannot be said to be in the category of persons who are incapable of being witnesses as provided by Section 118 of the Indian Evidence Act. Whether such a power of attorney bolder has personal knowledge about the matters in controversy may be a question which can be thrashed out by cross-examining him and if it is found that the power of attorney holder has no personal knowledge about the facts in controversy, the evidentiary value of his deposition may be whittled down, but that has nothing to do with the competence of such a power of attorney holder to depose before a Court or a judicial Tribunal as a competent witness. The learned Member of the Tribunal has tailed to notice the aforesaid relevant provision of the Indian Evidence Act and it is because of the said omission on his part that he has come to his conclusion which suffers from a patent error of law. Merely because in a given case it can be determined that power of attorney holder has no personal knowledge regarding the events or the matters on which he had deposed, it cannot be said that his evidence is inadmissible. The evidence would remain admissible in law but its evidentiary value will have to be judged after weighing the evidence and after considering all pros and cons of the situation. As I have shown above, the first ground on which the learned Member of the Tribunal has come to the conclusion that the evidence of the power of attorney holder would be completely inadmissible in light of the provisions of Order 3 Rule 2(a) which have nothing to do with the present controversy, is totally untenable.

7. In this connection a decision of the Madras High Court in R.V.N. Chandrasekara Chetty v. Kakumani Adikesavalu Chetty's Charities : AIR1966Mad14 and one decision of this High Court are worth noting. In R.V.N. Chandrasekara Chetty's case (supra) the Madras High Court had to consider the question whether a landlord could prove his bona fide requirement as laid down by Madras Buildings (Lease and Rent Control) Act, 1960 by personally examining himself by stepping into the witness box. It has been observed in that connection that when a landlord makes an application for the eviction of a tenant on the ground that he requires the premises bona fide for the purpose of Immediate demolition and reconstruction under Section 14(1)(b) of the Madras Act, the word 'bona fide' plays an important part 'Bona fide, may be proved in an ordinary way like any other fact in issue or relevant fact. It is not a rule of law, that 'bona fide' being a subjective matter can only be proved by the landlord stepping into the witness-box. The Judge has to take every circumstance which affects the interests of the landlord and the tenant as well as the interest of the public at the date of hearing in to consideration. The aforesaid judgment of the Madras High Court shows that even for proving the 'bona fide' requirement the landlord is not always required to step in to the witness-box.

8. The decision of this Court in Virendra Dwarkadas Mehta v. Rajkamal Foundry and Ors. 20(2) G.LR. 348 may now be seen. N.H. Bhatt J., in the aforesaid judgment had to consider the question as to whether the facts about the bona fide requirement of the landlord, in the light of Section 13(1)(g) of the Bombay Rents, Hotel & Lodging House Rates Control Act, could be deposed to by his power of attorney holder. In this case the landlord in order to prove his case for bona fide requirement did not examine himself before the trial Court, but he examined cross-examining him and if it is found that the power of attorney holder has no personal knowledge about the facts in controversy, the evidentiary value of his deposition may be whittled down, but that has nothing to do with the competence of such a power of attorney holder to depose before a Court or a judicial Tribunal as a competent witness. The learned Member of the Tribunal has tailed to notice the aforesaid relevant provision of the Indian Evidence Act and it is because of the said omission on his part that he has come to his conclusion which suffers from a patent error of law. Merely because in a given case it can be determined that power of attorney holder has no personal knowledge regarding the events or the matters on which he had deposed, it cannot be said that his evidence is inadmissible. The evidence would remain admissible in law but its evidentiary value will have to be judged after weighing the evidence and after considering all pros and cons of the situation. As I have shown above, the first ground on which the learned Member of the Tribunal has come to the conclusion that the evidence of the power of attorney holder would be completely inadmissible in light of the provisions of Order 3 Rule 2(a) which have nothing to do with the present controversy, is totally untenable.

7. In this connection a decision of the Madras High Court in R.V.N. Chandrasekara Chetty v. Kakumani Adikesavalu Chetty's Charities A.l.R. 1966 Madras 14 and one decision of this High Court are worth noting. In R.V.N. Chandrasekara Chetty's case (supra) the Madras High Court had to consider the question whether a landlord could prove his bona fide requirement as laid down by Madras Buildings (Lease and Rent Control) Act, 1960 by personally examining himself by stepping into the witness box. It has been observed in that connection that when a landlord makes an application for the eviction of a tenant on the ground that he requires the premises bona fide for the purpose of Immediate demolition and reconstruction under Section 14(1)(b) of the Madras Act, the word 'bona fide' plays an important part 'Bona fide, may be proved in an ordinary way like any other fact in issue or relevant fact. It is not a rule of law, that 'bona fide' being a subjective matter can only be proved by the landlord stepping into the witness-box. The Judge has to take every circumstance which affects the interests of the landlord and the tenant as well as the interest of the public at the date of hearing in to consideration. The aforesaid judgment of the Madras High Court shows that even for proving the 'bona fide' requirement the landlord is not always required to step in to the witness-box.

8. The decision of this Court in Virendra Dwarkadas Mehta v. Rajkamal Foundry and Ors. 20(2) G.LR. 348 may now be seen. N.H. Bhatt J., in the aforesaid judgment had to consider the question as to whether the facts about the bona fide requirement of the landlord, in the light of Section 13(1)(g) of the Bombay Rents, Hotel & Lodging House Rates Control Act, could be deposed to by his power of attorney holder. In this case the landlord in order to prove his case for bona fide requirement did not examine himself before the trial Court, but he examined on behalf of that party. Giving deposition on oath as a power of attorney holder of a party is not a part of pleadings, It is a part of the procedure for proving a case by examining a competent witness. Who can be a competent witness is indicated by the Indian Evidence Act alone as per Section 118 which has already been reproduced by me in the earlier part of this judgment. It must, therefore, be held that the first ground on which the learned Member of the Tribunal held that the power of attorney bolder could not become a competent witness in a Court of law or in a judicial Tribunal is clearly unsustainable in law.

9. So far as the second ground is concerned, it also appears to be clearly unfounded. The learned Member of the Tribunal took a curious view that the Gujarat amendment to Order 3 Rule 2 Clause (a) C.P.C. that was effected in 1961 has stood repealed by Section 97 of the Code of Civil Procedure (Amendment) Act, 1976. The basis fallacy of the aforesaid' conclusion becomes apparent from a mere look at Section 97(1) of the Code of Civil Procedure (Amendment) Act, 1976, which reads as under:

97(1) Any amendment made, or any provision inserted in the principal Act by a State Legislature or a High Court before the commencement of this Act shall, except in so far as such amendment or provision is consistent with the provisions of the principal Act as amended by this Act, stand repealed.

(2)....

10. It is obvious that all the amendments in the Code made by the State Legislatures and the High Courts before the commencement of the Amendment Act stand repealed except to the extent that such Amendments are consistent with the provisions of the Code, as amended by the Amendment Act, 1976 and so far as Order 3 rule I and Rule 2(a) are concerned, no amendment therein has been brought about by the Code of Civil Procedure (Amendment) Act 1976 and they have remained untouched and in the same form in which they were from the very inception. The amendment effected by the Gujarat High Court in 1961 in 0. 3 Rule 2ia) is not in any way inconsistent with the provisions of the Amendment Act of 1976. It must, therefore, be held that the learned Member of the Tribunal committed a patent error of law when he took the view that the amendment effected by the Gujarat High Court 1961 in 0.3 r.2(a) has stood repealed by Section 97 of the Code of Civil Procedure (Amendment) Act, 1976. Hence the second ground on which the learned Member of the Tribunal has based his conclusion is totally unsustainable. It must further be observed in this connection that this second ground on which the learned. Member of the Tribunal based his conclusion is totally irrelevant in the present context of the controversy. The question whether the general power of attorney holder of a party can be a competent witness on behalf of a party before a judicial Tribunal or authority has to be answered in the light of Section 118 of the Indian Evidence Act as already shown above and for answering that question the provisions of Order 3 rules I or Rule 2(a) are beside the point and can afford no guidance whatsoever As a result, it must be held that the grounds on which the learned Member of the Tribunal reached his conclusion in the present case were totally unsustainable as well as irrelevant while the relevant ground for consideration was completely lost sight of by the learned Member of the Tribunal.

11. The result of the aforesaid discussion is that the order passed by the learned Member of the Tribunal is found to have suffered from patent errors of law and is required to be quashed and set aside. The decision of the Tribunal at Annexure A to the petition will have therefore, to be quashed and set aside. The rule issued on this petition has to be made absolute. The Tribunal is directed to restore the revision application on its file and decide it afresh on merits in accordance with law after hearing the concerned parties. Rule is accordingly made absolute with no order as to costs in the facts and circumstances of the case.


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