JUDGMENT
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 Section 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 Section 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?
3. 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.
4. 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 v. Hari narain and Ors. (1.
5. Per contra Mr. R.K. Agrawal, learned counsel appearing for the plaintiffs supported the impugned judgment and decree and urged that the issue Not was rightly decided by both the courts below and this court should not interfere with the concurrent findings arrived at by the courts below.
6. 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.
7. 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 attorney 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.
8. In Ram Prasad v. 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 parly 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.
9. This Court in B.B. Bhalla v. Rameshwar Kishore Badhwar (2), had occasion to consider Section 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 v. 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 v. 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.
10. In Murlidhar v. Mukund Ram (5), this court observed thus:
“… I have taken into consideration the fact that no evidence was led before the trial court about the factum of default. Even the framing of issues regarding default was wholly erroneous, because, the learned trial court had placed the burden on the tenant to prove that he had not committed default. This approach of the learned trial court was wholly erroneous. In fact it was the landlord to have established that the tenant had committed default in payment of rent for more than six months”.
11. In the instant case as already stated the plaintiff did not examine himself and failed to prove that the defendant had committed default in making payment of rent. Shri Vidya Vinod Kala (PW.1) cannot be substituted in place of plaintiff. Being a power of attorney holder Vidya Vinod Kala only had authority to institute a suit and he could only appear as a witness but not as a plaintiff before the trial court. The plaintiff himself had to discharge the burden by proving that the defendant committed default in payment of rent as alleged in the plaint and this burden could not have been discharged through the statement of Power of Attorney holder.
12. A close look of the material on record further reveals that even the document in respect of first default was not properly proved. Though Vidya Vinod Kala exhibited a document as Ex.2 but mere exhibiting the document does not dispense with its proof. The power of attorney holder of plaintiff Shri Vidya Vinod Kala had not legal authority to exhibit the judgment of a case to which he was not the party. Both the courts below have not properly appreciated this legal position and failed to consider the provisions contained in Order 3 Rule 2 CPC. I am satisfied that the plaintiff has failed to prove that the defendant has committed default in payment of rent and the findings arrived at by both the courts below deserve to be set aside,
13. I am not impressed with the submissions advanced before me by Mr. R.K. Agrawal, learned counsel appearing for the plaintiffs. The case law cited by the learned counsel is not applicable in the facts and circumstances of the case. Mr. Agrawal could not lay hands on the authority which supports his submission that it was not necessary for the landlord to examine himself to prove the default in payment of rent on the part of the tenant.
14. In the result the appeal succeeds and stands allowed. The impugned decree and judgment of the courts below are set aside. The parties shall bear their own costs. Record of the courts below be sent back.