- (1.) HEARD learned counsel for the parties. Leave granted.
(2.) IT appears that the Rent Controller granted eviction on the ground of bona fide need of the landlord and the said order was confirmed in appeal as well as by the High Court in revision. Hence, this appeal by special leave by the tenant. Undisputedly, the order of eviction was passed upon the evidence of Power of Attorney holder, who is nobody else than son of the landlord. The landlord has not examined himself in the present case as a witness, rather the Power of Attorney holder, who is son of the respondent, has examined himself as a witness. It is not the case of landlord that he required the premises in question for his son. Learned counsel appearing on behalf of the appellant submitted that sole basis for passing the order of eviction was testimony of the Power of Attorney holder which is not permissible under law. Reliance has been placed in this regard upon decision of this Court in the case of Janki Vashdeo Bhajwani and Another v. Indusind Bank Ltd. and Ors., 2005 (2) KLT 265 (SC) = (2005) 2 SCC 217, wherein it has been laid down that a General Power of Attorney holder can appear, plead and act on behalf of the party, but he cannot become a witness on behalf of the said party. Further it has been laid down that no one can delegate the power to appear in the witness box on behalf of himself and to appear in a witness box is altogether a different act inasmuch as a general Power of Attorney holder cannot be allowed to appear as a witness on behalf of the plaintiff in the capacity of the plaintiff. On the other hand, learned counsel appearing on behalf of the respondent has placed reliance upon the judgment of this Court in the case of Ramkubai (Smt.) deceased by Lrs. and Ors. v. Hajrimal Dhokalchand Chandak and Ors., (1999) 6 SCC 540. That was a case of eviction on the ground of bona fide need. In that case the landlady required the premises in question for carrying on business by her son, who was her Power of Attorney holder and deposed as a witness on her behalf. In these circumstances, this Court upheld the order of eviction holding that the evidence of the Power of Attorney holder who was son of the landlady could be taken into consideration for passing order of eviction as the premises was required by the landlady for use of her son whose evidence alone could form the basis of eviction order though the landlady herself did not come in the witness box. In our view, the present case is quite distinguishable as it has nowhere been stated here that the landlord required the premises in question for his son who was Power of Attorney holder. Realising the difficulties, learned counsel appearing on behalf of the respondent- landlord sought permission of this Court to withdraw the eviction proceeding with liberty to file a fresh one on the same cause of action. In our view, the prayer is reasonable and must be granted. Accordingly, the appeal is allowed, impugned orders are set aside and the landlord is permitted to withdraw the eviction proceeding to file a fresh one on the same cause of action. As the respondent was bona fide prosecuting the present proceeding, we direct that the period from the date of filing of the eviction petition till today shall be excluded in computing the period of limitation for filing fresh petition for eviction. No costs.;