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High Court Of Madhya Pradesh
U. N. SINGH
SHANTI DEVI AGARWAL - Appellant
Versus
V.H.LULLA - Respondents
C. R. 122 Of 2003
Decided On : 07/07/2003
(2) Powers-of-Attorney Act, 1882 -- S.2-- Criminal P.C., 1973 -- Ss. 2 (q), 205 and 303 -- criminal proceedings -- holder of power of attorney cannot appear for accused -- it is only his pleader duly appointed by him who can so appear if presence of accused is specifically exempted. (1999) 3 SCC 614 = AIR 1999 SC 1385 followed. [Para 9
(3) Words and Phrases -- words ‘power of attorney‘ -- meaning -- ‘power of attorney is an authority whereby one is set in turn, stead or place of another to act for him.‘ AIR 1937 Nag. 65 relied on. [Para 10
(4) Civil P.C., 1908 -- O. 3 R. 2 -- Evidence Act, 1872 -- Ss., 118 and 3 -- eviction case against tenant on ground of bonafide requirement -- any member of family can give evidence as holder of power of attorney on behalf of landlord. [Para 10
(5) Accommodation Control Act, 1961 (M.P.) -- Ss. 12 (1)(e) or 12 (1)(f) and 23-A -- eviction suit on ground of bona fide need -- any member of family can give evidence as holder of power of attorney of landlord. [Para 10
(6) Civil P.C., 1908 -- Ss. 151, 114 and O. 47 -- Tribunal can recall its order on ground of mistake or fraud -- it cannot be viewed as review. AIR 1996 SC 2592 and AIR 1999 SC 2089 followed. [Para 14
(7) Accommodation Control Act, 1961 (M.P.) -- S. 29 -- M.P. Accommodation Control Rules, 1966 -- R. 16 -- powers of Rent Controlling Authority -- are same as exercised by civil Court -- CPC is to be generally followed -- it also has inherent power under the Code. [Paras 14 & l5
¼1½ flfoy izfdz;k lafgrk] 1908 && vk- 3 fu- 2 ¼d½ && lk{; vf/kfu;e] 1872 && /kkjk 118 && lk/kkj.k eq[rkjukek /kkjd && vius i{kdkj dh vksj ls l{ke lk{kh gS && mldk lk{;] vf/kfu;e dh /kkjk 118 dh dlkSVh ij ij[kuk gksxkA , vkb vkj 1998 jkt- 185 folEerA , vkb vkj 1983 ,u vks lh 108 ¼xqt-½] , vkb vkj 1966 enzkl 14] 1997 ¼1½ fof/k HkkLoj 280] 1995 ¼2½ e-iz- ohDyh uksV~l 43] 1997 ¼2½ ,e ih ts vkj ,l ,u 33] 1998 ¼1½ ,e ih ts vkj 392 rFkk 1998 ¼2½ ,e ih ,y ts 410 voyafcrA
¼iSjk 7 ls 9½
¼2½ eq[rkjukek vf/kfu;e] 1882 && /kkjk 2 && naM izfdz;k lafgrk] 1973 && /kkjk 2 ¼Fk½] 205 rFkk 303 && nkafMd dk;Zokgh && eq[rkjukek /kkjd vfHk;qDr dh vksj ls milatkr ugha gks ldrk && vfHk;qDr }kjk lE;d~:is.k fu;qDr IyhMj gh bl izdkj milatkr gks ldrk gS ;fn vfHk;qDr dks milatkfr ls fofufnZ"V% NwV nh xbZ gksA ¼1999½3 ,l lh lh 614 ¾ , vkb vkj 1999 ,l lh 1385 vuqlfjrA
¼iSjk 9½
¼3½ ‘‘kCn rFkk okD; && ‘‘kCn ^eq[rkjukek* && vFkZ && ^eq[rkjukek ,slk izkf/kdkj gS ftlds }kjk fdlh O;fDr dks fdlh vU; O;fDr dh vksj ls mldh ckjh esa] mlds cnys esa vFkok mlds LFkku ij dk;Z djus ds fy, fu;qDr fd;k tkrk gSA , vkb vkj 1937 ukx- 65 voyafcrA
¼iSjk 10½
¼4½ flfoy izfdz;k lafgrk] 1908&& vk- 3 fu- 2 && lk{; vf/kfu;e] 1872 & /kkjk 118 rFkk 3 && okLrfod vko‘;drk ds vk/kkj ij vfHk/kkjh ds fo:) csn[kyh dk ekeyk && dqVqac dk dksbZ Hkh lnL; eq[rkjukek /kkjd ds :i esa Hkw&Lokeh dh vksj ls lk{; ns ldrk gSA
¼iSjk 10½
¼5½ LFkku fu;a=.k vf/kfu;e] 1961 ¼e-iz-½ && /kkjk 12 ¼1½ ¼M+½ vFkok 12 ¼1½ ¼p½ rFkk 23&d && okLrfod vko‘;drk ds vk/kkj ij csn[kyh ds fy, okn && Hkw&Lokeh ds eq[rkjukek /kkjd ds :i esa dqVqac dk dksbZ Hkh lnL; lk{; ns ldrk gSA
¼iSjk 10½
¼6½ flfoy izfdz;k lafgrk] 1908 && /kkjk 151] 114 rFkk vk- 47 &&vf/kdj.k Hkwy vFkok diV ds vk/kkj ij viuk vkns‘k okil cqyk ldrk gS && og iqufoZyksdu ugha dgk tk ldrkA , vkb vkj 1996 ,l lh 2592 rFkk , vkb vkj 1999 ,l lh 2089 vuqlfjrA
¼iSjk 14½
¼7½ LFkku fu;a=.k vf/kfu;e] 1961 ¼e-iz-½ && /kkjk 29 && e-iz- LFkku fu;a=.k fu;e] 1996 && fu- 16&& HkkM+k fu;a=d izkf/kdkjh dh ‘kfDr;k¡ &&flfoy U;k;ky; }kjk iz;qDr ‘kfDr;ksa ds leku gS && lk/kkj.kr% flfoy izfdz;k lafgrk vuqlj.kh; gS && mls lafgrk ds v/khu varfuZfgr ‘kfDr Hkh izkIr gSA
¼iSjk 14 ,oa 15½
( 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 plaintiffs 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 plaintiffs evidence while deciding the question as to whether the plaintiffs son 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 Sec. 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 9-12-2002 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 plaintiffs 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 122/03, the said order of closing the plainti
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