Whether wife can prove bon-afide need for tenanted premises through evidence of husband?

Further, it is argued by the learned counsel appearing for the tenants that the husband of the landlady alone deposed as an agent having obtained a deed of power of attorney, which shall not be accepted, as held by a Division Bench of this Court in Podelly Chinna Chinnamma v. Bandari Pedda Bhumanna, (DB).

34. The relevant portions, at paragraph Nos. 5 and 15, in the said judgment of the Division Bench are thus:

"Paragraph No.5:-..........................

Thus, on a bare reading of the provisions, a party to the proceedings can appear and apply and act through recognized agent viz., the person holding power of attorney, which authorizes him to make such appearance or application or to act. The expressions used are 'appearance', 'application' or 'act' are quite comprehensive enough to include every step taken in the process of pursuing the case either as plaintiff or defendant. It has thus no restricted applicability nor exclude any particular act specifically. The only requirement for a person to act as recognized agent is to hold valid authority duly conferring all such powers.

Paragraph No. 15:- Therefore, the only requirement for a person to come into the witness box to speak in regard to any facts and circumstances of the case is that he should be competent enough to testify i.e., to speak. The competency as. contemplated is a very wider in its connotation. There is distinctive feature between one who is said to be competent on behalf of the person to speak and another how far and to what extent the person can speak. These two aspects cannot be mixed up to reject a person from entering the witness box. As long as one holds proper authority under a Power of Attorney or otherwise, he is fully competent to come as witness on behalf of the said party. The competency as provided for further gets extended under Section 120 thereof providing that in any civil proceedings the husband or wife of a party to a suit shall be a competent witness. Therefore, it cannot be said that the Power of Attorney holder cannot be said to be incompetent as witness on behalf of the party/ executant. Neither the decisions reported in Ramprasad's case (AIR 1988 Raj. 185) or K. Bharthi's case considered these aspects and as such it has to be held that the aforesaid decision is not correct. It is thus held answering the reference that a Power of Attorney holder is a competent witness on behalf of the party/executant and further that the effect and relevancy of such evidence has to be considered from proper perspective on the facts and circumstances of each case."

35. From a reading of the said judgment, it could be seen that what all stated by the Division Bench of this Court was that the power of attorney cannot be prevented to speak on behalf of the plaintiff. But, basing on the facts and circumstances of the case, subject to the satisfaction of the Court, the Court may arrive at any conclusion.

36. In other words, the Court shall not reject in toto the evidentiary value of the agent who in normai course deposes about the facts, which are in his knowledge and if the information furnished by an agent though not spoken by the principal, is sufficient to establish the case, the same can be accepted by the Court. Merely because the landlady in the present case was not examined, the evidentiary value of the agent, who is no other than the husband of the landlady, cannot simply be brushed aside. Hence, the second contention cannot also be countenanced.

37. Insofar as the third and last contention of the learned counsel appearing on behalf of the tenants that bona fide requirement was not sufficiently proved is concerned, it is mere an assessment of the Court basing on the evidence available on record.

Andhra High Court

Vedpal And Ors. vs Shakuntala @ Aruna on 1 February, 2005

Equivalent citations: 2005 (4) ALD 79, 2005 (3) ALT 352

Bench: D Varma

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Whether court can acquit accused in trial which he is not competent to conduct in view of invalidity of order of sanction?

 In the case at hand, the Special Court not only entertained the contention urged on behalf of the accused about the invalidity of the order of sanction but found that the authority issuing the said order was incompetent to grant sanction. The trial Court held that the authority who had issued the sanction was not competent to do so, a fact which has not been disputed before the High Court or before us. The only error which the trial Court, in our opinion, committed was that, having held the sanction to be invalid, it should have discharged the accused rather than recording an order of acquittal on the merit of the case. As observed by this Court in Baij Nath Prasad Tripathi’s case (supra), the absence of a sanction order implied that the court was not competent to take cognizance or try the accused. Resultantly, the trial by an incompetent Court was bound to be invalid and non-est in law.

18. To the same effect is the decision of this Court in Mohammad Safi vs. The State of West Bengal (AIR 1966 SC 69). This Court observed:

“As regards the second contention of Mr. Mukherjee it is necessary to point out that a criminal court is precluded from determining the case before it in which a charge has been framed otherwise than by making an order of acquittal or conviction only where the charge was framed by a court competent to frame it and by a court competent to try the case and make a valid order of acquittal or conviction. No doubt, here the charge was framed by Mr. Ganguly but on his own view he was not competent to take cognizance of the offence and, therefore, incompetent to frame a charge. For this reason the mere fact that a charge had been framed in this case does not help the appellant.

12. In addition to the competent of the court, s. 403 of the Code speaks of there having been a trial and the trial having ended in an acquittal. From what we have said above, it will be clear that the fact that all the witnesses for the prosecution as well as for the defence had been examined before Mr. Ganguly and the further fact that the appellant was also examined under s. 342cannot in law be deemed to be a trial at all. It would be only repetition to say that for proceedings to amount to a trial they must be held before a court which is in fact competent to hold them and which is not of opinion that it has no jurisdiction to hold them. A fortiori it would also follow that the ultimate order made by it by whatever name it is characterised cannot in law operate as an acquittal. In the Privy Council case it was interpreted by Sir John Beaumont who delivered the opinion of the Board to be an order of discharge. It is unnecessary for us to say whether such an order amounts to an order of discharge in the absence of any express provision governing the matter in the Code or it does not amount to an order of discharge. It is sufficient to say that it does not amount to an order of acquittal as contemplated by s. 403(1) and since the proceedings before the Special Judge ended with that order it would be enough to look upon it merely as an order putting a stop to the proceedings. For these reasons we hold that the trial and eventual conviction of the appellant by Mr. Bhattacharjee were valid in law and dismiss the appeal.”

Supreme Court of India

Nanjappa vs State Of Karnataka on 24 July, 2015

Bench: T.S. Thakur, Amitava Roy

Citation; 2015(3) Crimes 125 SC

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