Uttarakhand High Court
Smt. Manju Rani Verma vs M/S Goldman Distillery on 10 July, 2026
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HIGH COURT OF UTTARAKHAND AT NAINITAL
HON'BLE SRI JUSTICE SUBHASH UPADHYAY
CIVIL REVISION NO.22 OF 2019
10h July, 2026
Smt. Manju Rani Verma ...Revisionist
Versus
M/s Goldman Distillery, Unit of Kamdhenu Ghee Ltd.
...Respondent.
Counsel for the revisionist : Mr. Siddhartha Singh, learned
counsel.
Counsel for the respondent : Mr. Amit Tyagi, learned counsel.
JUDGMENT:
(per Mr. Subhash Upadhyay, J.)
The present civil revision under Section 25 of the
Provincial Small Cause Courts Act has been preferred
assailing the judgment and order dated 19.02.2019 passed
by the Judge, Small Cause Courts / 1st Additional District
Judge, Dehradun in S.C.C. Suit No.24 of 2015, “Smt. Manju
Rani Verma Vs. Golden Distilleries”. By the impugned order,
suit of the revisionist /plaintiff was dismissed.
2. The facts which are evidenced from the records are
that S.C.C. Suit was filed in the year 2015 for recovery of
arrears of rent, eviction and mesne profit whereby revisionist
/ plaintiff contended that she is owner / landlord of the suit
property and the defendant is a tenant wherein initially a rent
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@₹65,000/- per month was to be paid from 25.04.2014 to
24.07.2014 and, thereafter, @₹83,000/- per month from
25.07.2014. The plaintiff contended that the defendant
defaulted in payment of rent and despite being served with
legal notice dated 08.04.2015 for terminating of tenancy of
the tenanted portion, neither the arrears of rent was paid nor
the suit property was vacated.
3. The defendant had initially filed an application for
dismissal of the suit on the ground that the property is
covered under the provisions of U.P.Z.A. & L.R. Act and the
suit is not maintainable. The aforesaid application was
allowed and the suit was dismissed. However, a Co-ordinate
Bench of this Court vide order dated 15.09.2017 in Civil
Revision No.36 of 2016 set aside the said order and directed
the learned J.S.C.C. to decide the suit afresh. The learned
Trial Court dismissed the suit on 19.09.2019 against which
the present revision has been preferred.
4. Learned counsel for the revisionist / plaintiff
assailing the impugned order submitted as hereunder:
i) Though rent agreement and a copy of the
legal notice was enclosed with the plaint and the
evidence was led by the husband of the plaintiff,
however, despite the fact that the husband of the
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plaintiff, who appeared as PW1 proved the plaint
averment and corroborated the documentary
evidence filed by the plaintiff, the said evidence
was wrongly discarded by the learned Trial Court.
ii) The cross-examination conducted by the
defendant was only confined to the authority of the
husband of the plaintiff who appeared as a witness
(PW1) and in regard to the power of attorney dated
26.06.2015, subsequently, filed by the PW1 on
behalf of the plaintiff. In the cross-examination,
neither the plaint averments were confronted nor
any suggestion was put forwarded to PW1 in
regard to the case set up by the defendant in the
written statement.
iii) The learned J.S.C.C. recorded a finding that
the rent agreement was executed between the
plaintiff and the respondent, firstly, on 23.04.2014
for a period from 25.04.2014 to 25.07.2014;
secondly, on 25.07.2014 for a period from
25.07.2014 to 15.01.2015; and, lastly, on
25.01.2015 for three months and also rendered a
finding that a notice terminating tenancy was sent
by the plaintiff on 08.04.2015.
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iv) The learned J.S.C.C. dismissed the suit on the
sole ground that the plaintiff herself had not
appeared for oral evidence, as such, the plaint
averments were not proved and the evidence of
the husband of the plaintiff was not accepted as
evidence on behalf of the plaintiff. Though a
reference to section 120 of the Evidence Act was
made, but misinterpreting the ambit and scope of
Section 120 of the Evidence Act it was held that
the husband of the plaintiff cannot depose on her
behalf, and as the plaintiff herself had not proved
the contents of the agreement, as such, the
relationship of landlord-tenant could not be
established.
v) The finding recorded by the Court was in
utter disregard to the law laid down by the Hon’ble
Apex Court in the Case of Man Kaur (Dead) by
LRs Vs. Hartar Singh Sangha, (2010) 10 SCC
512 and the recent judgment of the Hon’ble Apex
Court in the case of Nilima Das Gupta
(Deceased) through its LRs Vs. On the death
of Abdur Rouf his Legal Heirs & Ors. 2025
INSC 1037.
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5. Per contra, learned counsel for the respondent had
made the following submissions:
i) The plaintiff Maju Rani Verma never entered
the witness box and in her place her husband
sought to depose on her behalf regarding the fact
which were within the personal knowledge of the
plaintiff.
ii) A power of attorney holder or any other
representative can depose only with respect to act
performed by him / her personally and cannot
depose regarding the matter which are within the
knowledge of the plaintiff and the said issue was
considered by the Hon’ble Apex Court in the case
of Janki Vashdeo Bhojwani & Anr vs Indusind
Bank Ltd. & Ors AIR 2005 Supreme Court 439.
iii) The alleged tenancy, payment of rent, default,
service of notice and other material facts pleaded
in the plaint were to be proved by the plaintiff
herself and the failure of the plaintiff to enter in the
witness box entitled the Court to draw an adverse
inference against her and the said issue is covered
by the judgment of the Hon’ble Apex Court in the
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case of Vidhyadhar vs Manikrao & Anr. (1999)
3 SCC 573.
iv) The power of attorney was brought on record
after the conclusion of cross-examination and the
date on which PW1 entered the witness box and
was cross-examined, no authority was there in his
favour to depose on behalf of the plaintiff.
6. Heard learned counsel for the parties and perused
the record.
7. The learned Trial Court had framed the issue as to
whether there exists relationship of landlord-tenant between
the plaintiff and the respondent and as to whether the
tenancy of the defendant had been terminated by the plaintiff
by notice dated 08.04.2015.
8. The learned Trial Court, in view of the order dated
15.09.2017 passed by the Court in Civil Revision No.36 of
2016, concluded that it had the jurisdiction to try the suit.
With regard to the issue as to whether there exists a
relationship of landlord-tenant between the plaintiff and the
respondent, it was held in paragraph no.17 of the judgment
that it was evident that there exists a rent agreement in
which the signatures of the plaintiff and the respondent are
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seen. The finding recorded in paragraph no.17 of the said
judgment reads as under:
“17- mijksä okn ds lanHkZ esa ;g rF; Hkh nf’kZr gksrk gS fd okfnuh }kjk vius
okni= esa ;g dFku fd;k x;k gS fd mlds vkSj çfroknh ds e/; oknxzLr
lEifÙk tks çfroknh ds v/;klu esa gS] ds lanHkZ esa fdjk;kukek foys[k fu”ikfnr
fd;k x;k FkkA çFke ckj fdjk;kukek foys[k fn0 23-4-14 dks fu”ikfnr fd;k
x;k] ftlesa fdjk;snkjh dh vof/k 25-4-14 ls vkjEHk gksdj 25-7-14 rd gksus dk
ftØ fd;k x;k gS rFkk 25-7-14 ds i’pkr fdjk;snkjh lekIr gksus dk ftØ
fd;k x;k gSA mä fdjk;kukek ewy :i ls i=koyh ij dk0la0&42x gSA blds
vfrfjä ,d vU; fdjk;kukek fn0 25-7-14 dks fu”ikfnr gqvk Fkk] ftldh vof/k
25-7-14 ls 15-1-15 FkhA ;g çi= ewy :i ls i=koyh esa 43x ds :i esa layXu
gSA blds vfrfjä ,d vU; fdjk;kukek vuqca/ki= dk0la0&44x fn0 25-1-15 ls
rhu ekg gsrq fu”ikfnr fd;k x;kA mijksä fdjk;kukek vuqc/a ki=ksa ds voyksdu
ls Li”V gksrk gS fd ç’uxr lEifÙk ckor cuk;s x;s fdjk;kukek vuqca/ki=
okfnuh o çfroknh ds e/; fu”ikfnr gq, Fks] ftlesa okfnuh o çfroknh ds
gLrk{kj ekStwn gSaA”
9. The issue of relationship of landlord-tenant and as
to whether the tenancy was terminated by legal notice dated
08.04.2015 was decided against the plaintiff on the premise
that the plaintiff herself had not appeared before the Court to
give her evidence and the evidence given by the husband of
the plaintiff as PW1 was not admissible as per Section 120 of
the Evidence Act. It was also recorded that on the basis of
the power of attorney PW1 could not depose on behalf of the
plaintiff. The learned Trial Court relied on the judgment of
the Hon’ble Apex Court in the case of Janki Vashdeo
Bhojwani (supra).
10. The legal issue which crops up before this Court is
as to whether evidence led by PW1 i.e. husband of the
plaintiff was admissible under law and as to whether the
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learned J.S.C.C. was justified in discarding the said evidence
based on Section 120 of the Evidence Act.
11. The learned Trial Court though made a reference to
the said Section, however, held that the said evidence would
confine only to the personal knowledge. The issue with
regard to Section 120 of the Evidence Act was considered by
the Hon’ble Apex Court in the case of Nilima Das Gupta
(supra) and considering the said Section the Hon’ble Apex
Court held in paragraph no.17 to 22, 25 and 26 as
hereunder:
“17. The understanding of the High Court as regards
Section 120 of the Indian Evidence Act is also not correct.
Over and above the reliance on the two decisions of this
Court is also misconceived.
18. We may explain the principle and scope of Section 120
of the Indian Evidence Act. However, before proceeding to
explain Section 120, we must highlight Section 118 of the
Indian Evidence Act. Section 118 of the Evidence Act reads
thus:
“118. Who may testify.-All persons shall be
competent to testify unless the Court considers that
they are prevented from understanding the questions
put to them, or from giving rational answers to those
questions, by tender years, extreme old age, disease,
whether of body or mind, or any other cause of the
same kind.
Explanation. — A lunatic is not incompetent to testify,
unless he is prevented by his lunacy from8
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understanding the questions put to him and giving
rational answers to them.”
19. Thus, under Section 118 all persons are competent to
testify, unless the court considers that by reason of tender
years, extreme old age, disease, or infirmity, they are
incapable of understanding the questions put to them and
of giving rational answers. Competency of a person to
testify as a witness is a condition precedent to the
admissibility and credibility of his evidence.
20. Section 120 of the Indian Evidence Act reads thus:
“120. Parties to civil suit, and their wives or
husbands. Husband or wife of person under criminal
trial.-In all civil proceedings the parties to the suit,
and the husband or wife of any party to the suit, shall
be competent witnesses. In criminal proceedings
against any person, the husband or wife of such
person, respectively, shall be a competent witness.”
21. Under Section 118 referred to above, all persons except
those excepted therein are competent to give evidence.
Competency is the rule and incompetency the exception.
22. Section 120 declares that the parties to the suit and
their husbands or wives are competent witnesses in all civil
proceedings and that in criminal proceedings against any
person, the husband or wife of such person is a competent
witness, whether for or against.
23….
24….
25. Having explained the scope and purport of Section 120
of the Indian Evidence Act, as above, we should now look
into the understanding of the High Court as regards why
D.W.5, i.e., the son of the Defendant No. 1 could not be
said to be a competent witness to enter the box and
depose. The High Court has observed as under:
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“8. The Court of the Munsiff dismissed the counter
claim of Nilima Das Gupta because she did not appear
before the Court and offered herself for cross-
examination. In her place, her son deposed on her
behalf. The Trial Court opined that since she failed to
offer herself for crossexamination, it could be
presumed that she had set up a false case. The
aforesaid view of the Munsiff was based upon a ratio
laid down by the Supreme Court in the case of
Vidhyadhar v Manik Rao reported in (1999) 3 SCC
573. The Trial Court did not rely upon the evidence of
the son of Nilima Das Gupta who examined himself as
D.W. 5. No power of Attorney was given to DW 5 to
depose on behalf of Nilima Das Gupta. This time, the
Trial Court relied upon the decision of the Supreme
Court that was rendered in Janki Vashdeo Bhojwani v.
Indusind Bank Limited reported in (2005) 2 SCC 217,
which held that since there is no Power of Attorney,
the DW-5 is not entitled to give evidence on behalf of
his mother. The appellate Court simply held that D.W.
5 is entitled to give evidence on behalf of his mother.
9. I have given my anxious consideration to the
submissions made by the learned counsels for the
parties. Here at this stage, the Section 120 of the
Indian Evidence Act maybe visited. It reads has
under:
“120. Parties to civil suit, and their wives or
husbands. Husband or wife of person under
criminal trial.–In all civil proceedings the
parties to the suit, and the husband or wife of
any party to the suit, shall be competent
witnesses. In criminal proceedings against any
person, the husband or wife of such person,
respectively, shall be a competent witness.”10
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10. In the case of Vidhyadhar (supra), in paragraph-
17, the Supreme Court has held has under:
“17. the son of the landlady is not a person
covered under the aforesaid provision and as
such is not a competent to depose on her
behalf.”
11. This view has been followed by the Supreme court
in the case of Man Kaur (Dead) by LRS reported in
(2010) 10 SCC 512.
12. DW 5 is entitled to appear as an independent
witness or attorney but because of the embargo of
Section 120 of the Evidence Act, he is not entitled to
step into the shoes of his mother. He cannot adduce
evidence on behalf of his mother.”
26. We may only clarify that by virtue of Section 120 of the
Indian Evidence Act alone the D.W.5 cannot be termed as
an incompetent witness. In other words, the line of
reasoning assigned by the High Court gives us an
impression that since son and mother do not figure in
Section 120 of the Indian Evidence Act and only husband
and wife figures, the son cannot depose on behalf of his
mother. That understanding is not correct. It is not in
dispute that Defendant No. 1 did not enter the witness box,
however, D.W.5 her son entered the box and deposed.”
12. In the present case the husband of the plaintiff had
filed the evidence affidavit on behalf of plaintiff and was
cross-examined by the defendant. In view of Section 120 of
the Evidence Act he was competent to depose on behalf of
his wife i.e. plaintiff. Thus, the dismissal of the suit by
learned J.S.C.C. solely on the ground that PW1 could not
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depose on behalf of the plaintiff was against the settled
principle of law. The order passed by the learned J.S.C.C., as
such, is not sustainable and the same is set aside.
13. The suit is pending before the Court since 2015 and
the revisionist before the pendency of the present revision
(which is pending before the Court since 2019) had
approached the Hon’ble Apex Court wherein directions were
issued to dispose of the revision expeditiously.
14. Thus, looking into the totality of the facts, the
present revision is disposed of in the following terms:
1) The impugned order dated 19.02.2019 is set
aside and the matter is remanded to the learned
Trial Court to decide the same, as expeditiously as
possible, preferably within a period of two months
from the date of receipt of a copy of this order by
the Trial Court.
2) The learned Trial Court shall not grant
unnecessary adjournment to any of the parties and
will try to hear the suit on day-to-day basis.
3) The present order has been passed in
presence of learned counsel for the respondent,
who also conceded that he has no objection in case
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the matter is remanded. The counsel for the
respondent undertakes to inform the respondent
about the present order.
4) The Trial Court shall commence the
proceedings of the suit from the stage of evidence
and shall hear and decide the suit on its merit after
providing an opportunity to the parties to lead
evidence and the husband of the plaintiff would be
allowed to give evidence on her behalf.
5) In case the parties adhere to the evidence
already led by them then the Trial Court shall
proceed with the suit on the basis of the evidence
available on record. In that case the evidence of
PW1 on behalf of the plaintiff shall be considered
as an evidence of plaintiff.
15. Pending application, if any, also stands disposed of.
16. Let a copy of this judgment be forthwith sent to the
court concerned for due compliance.
17. LCR be also sent back.
___________________
SUBHASH UPADHYAY, J.
Dt:10.07.2026
Sukhbant
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