JUDGMENT :

1. The plaintiffs are the appellants who have preferred the appeal against the judgment of reversal passed in Title Appeal No. 20 of 2006, whereby and whereunder the plaintiff’s Eviction Suit No. 4 of 2002 decreed in favour of the plaintiffs, has been set aside.

2. The parties shall be referred to their placement in the original suit and will include their legal representatives.

3. The plaintiff landlady Bibi Sagirunnisha brought the suit against the tenants for eviction on the ground of default in payment of rent and on the ground of bonafide personal necessity. It has been averred by the plaintiff that there was default in payment of rent of Rs.600/- per month since April, 2001. The landlady was running a shop adjacent to the tenanted premise and wanted to widen and enlarge the shop for its requirement.

4. The case of the defendant is that there had been no default in payment of rent and the plaintiff-respondent had no bonafide need for the shop in question and the suit was only filed for an additional salami of Rs.1,00,000/- and to enhance the monthly rent from Rs.600/- to Rs.2000/-. It has been further pleaded that the shop in question was initially constructed by the appellant himself and only the open land was leased to them. The plea of bonafide necessity has been contested on the ground that plaintiff had other available vacant shops which can be used for widening her existing shop there.

5. On the basis of the pleadings of the parties the following main issues were framed :

III. Whether the defendant No. 1 Raj Kishore Prasad is a monthly tenant of the plaintiff?

IV. Whether the defendant defaulted in payment of monthly rent since April, 2001?

V. Whether the plaintiff is entitled to recover the arrears of amount through judicial process?

VI. Whether the plaintiff has bonafide requirement of the disputed premises in order to widen her own shop?

VII. Whether the defendant No. 1 is entitled to adjust an amount of Rs.43,350/- against the arrears of rent?

6. The learned Trial Court decreed the suit after recording the following findings of facts :

i. Defendant No. 1, Rajkishore Prasad and defendant No. 2, Sanjiv Urvashi were the tenant in the disputed shop which was constructed by the plaintiff. The defendants were tenants within the meaning of Section 2(h) of the B.B.C. Act, 1982.

ii. The plaintiff failed to prove that defendant had committed default in payment of rent for the month of April, 2001 to December, 2001 and, therefore, the plaintiff was not entitled to claim rent of this period.

iii. The suit has been decreed on the ground of personal necessity of the plaintiff landlady as there was a bonafide personal necessity of the shop by the plaintiff for widening the existing shop. The plaintiff was an old and infirm lady and was not in a position to walk and, therefore, had appointed P.W.-10 as the power of attorney holder on her behalf. One of the sons of the plaintiffs was unemployed who was running the shop of National Sports but since it was a very small shop, therefore, he faced lot of difficulty in properly running the shop.

iv. Defendant No. 1 was not entitled to adjust Rs.43,350/- against the arrears of rent and this issue was decided in favour of the plaintiff.

7. The learned Court of Appeal concurred with the finding of facts of the Trial Court but allowed the appeal dismissing the suit for eviction, mainly on the ground that the plaintiff had not been examined. The Appellate Court also noted in para-38 of its judgment that the plaintiff’s ‘National Sports’ shop was a very small triangular shop lying on the close left side of the tenanted ‘Urvashi shop” which could be expanded and enlarged by taking back the tenanted ’Urvashi shop’ and by its merger with the plaintiff’s own shop.

8. The main ground on which the appeal has been allowed by the Lower Court is that Order III C.P.C. permits appointment of the power of attorney holder for entering into appearance to file application or act on behalf of the principle but s