SHARMA, J. - (1.) THIS second appeal instituted by the defendant arises out of a suit for eviction from the premises situated a Chowkri Modi Khana Jaipur. The plaintiffs sought for the decree of eviction on the ground of default in making payment of rent. Out of six issues that were framed by the learned trial court issue No. 1 as regards default in payment was the core issue. Both the parties adduced evidence and the learned trial court decree the suit on the ground of default under Sec. 13 (1) (a) of the Rajasthan Premises (Control of Rent and Eviction) Act, 1950 (for short 1950 Act) vide judgment and decree dated January 29, 1991. After unsuccessful first appeal the defendant preferred the instant second appeal.
(2.) THIS court while admitting the appeal on October 10, 1991 framed following substantial questions of law : i) Whether the courts below were justified in holding that the decree for eviction can be passed under Sec. 13 (1) (a) of Rajasthan Rent Control Act even if the defendant has not committed wilful default? ii) Whether in view of the Order dated 15. 5. 85 passed by the learned trial court that no rent was outstanding upto that date and subsequently the rent has been paid by the defendant in time, the judgment and decree passed by the courts below is sustainable? I have heard Mr. M. M. Ranjan, learned counsel appearing for the defendant and Mr. R. K. Agrawal, learned counsel appearing for the plaintiff and carefully scanned the material on record. Mr. Ranjan raising the first objection in respect of impugned judgment and decree, canvassed that the plaintiff could not prove the issue No. 1 as he did not appear in the witness box and on the basis of the statement of Vidya Vinod Kala, PW. 1, a Power of Attorney holder of the plaintiff, both the courts below decree the suit. Reliance was placed on Ram Prasad vs. Hari narain and Others (1 ). Per contra Mr. R. K. Agrawal, learned counsel appearing for the plaintiffs supported the impugned judgment and decree and urged that the issue No. 1 was rightly decided by both the courts below and this court should not interfere with the concurrent findings arrived at by the courts below. In order to appreciate the substantial questions of law framed by this court while admitting the appeal I have carefully weighed the material on record.
(3.) ADMITTEDLY the statement of plaintiff was not recorded by the learned trial court. Vidya Vinod Kala, PW. 1, in his deposition stated that he was the power of attor- ney holder of plaintiff Shanti Kumar and he had authority to institute the suit. He further deposed that the defendant only paid the rent upto June 1984 and thereafter no payment was made by him and committed second default in making payment of rent. In Ram Prasad vs. Hari Narain (supra) it was indicated by this court that the world `acts' used in Rule 2 of Order 3 Code of Civil Procedure does not include the act of power of attorney holder to appear as a witness on behalf of a party. Power of attorney holder of a party can appear only as a witness in his personal capacity and whatever he has knowledge about the case, he can state on oath but he cannot appear as a witness on behalf of the party in the capacity of that party. This Court in B. B. Bhalla vs. Rameshwar Kishore Badhwar (2), had occasion to consider Sec. 101 of the Evidence Act and it was indicated that when a person is bound to prove the existence of any fact, it is said that the burden of proof lies on that person. The Delhi High Court in Chandu Kishore Sharma vs. Kampawati (3), indicated that the initial burden to prove the ground of eviction is on the landlord, and not on the tenant. The tenant can not be asked to prove the negative. In Durairaj vs. Ratnabai (4), it was observed that in a case of eviction for wilful default, the burden lies heavily on the landlord to prove the circumstances which would justify the inference that not merely had a default occurred but that default was wilful. ;