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2000 DIGILAW 116 (GAU)

Upendra Nath Das v. Nirupama Bharali

2000-03-15

N.C.JAIN, P.G.AGARWAL

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N. C. Jain, J-This first appeal has .been filed by the defendant against judgment and decree of the trial Court decreeing the suit of the plaintiff/respondent for specific performance of contract for the sale of a plot described in the agreement of sale. 2. The case of the plaintiff/respondent as disclosed in the plaint was that the defendant entered into an agreement of sale for a plot of land measuring 15 lechas out of 2 kathas covered by KP Patta No. 25 Dag No.466 and 467 of Village Maligaon Mouza Jalukbari in Guwahati. The agreement was that the plaintiff would give a sum of Rs. 3,00,000 (Rupees three lakhs) which was initially less than the aforesaid amount. A sum of Rs. 10,000 (Rupees ten thousand) was given as advance amount on 13.3.93. On various other dates, some more amount was paid by the plaintiff to the defendant which totaled Rs. 47,000 (Rupees forty seven thousand). 3. The defendant/appellant contested the suit of the plaintiff on the ground that it was not maintainable and that the suit was barred by limitation. The, defendant, however, admitted the receipt of Rs. 10,000. It is the further plea of the defendant that the plaintiff to pay the consideration money at the relevant time for registration of the sale deed and that he is not bound to execute the sale deed. 4. The trial Court on the basis of pleadings of the parties struck the following four issues : 1. Whether the suit is barred by limitation ? 2. Whether the defendant received Rs. 10,000 from the plaintiff on 13.3.93 and acknowledged the receipt of the same by putting his signature on back side of the agreement ? 3. Whether the plaintiff was ready to perform her part of the agreement and if the defendant refused the execute the sale deed as per agreement ? 4. Whether the plaintiff is entitled to any relief as claimed for ? 5. The trial Court found all the issues against the defendant and in favour of the plaintiff. It has been found that the defendant received a total sum of Rs. 43,000 on various occasions and that the suit was within limitation. It has further been found that the plaintiff was ready to perform her part of the agreement and that it was the defendant who did not execute the sale deed in accordance with the agreement. It has been found that the defendant received a total sum of Rs. 43,000 on various occasions and that the suit was within limitation. It has further been found that the plaintiff was ready to perform her part of the agreement and that it was the defendant who did not execute the sale deed in accordance with the agreement. Under issue No.4, the plaintiff has been found entitled to the relief as claimed in the plaint. 6. Some of the facts have not been disputed during the course of arguments before us. It has been admitted that after the grant of decree, the sale deed had already been executed by the Court as was observed by the trial Court after the necessary deposit was made by the plaintiff. The execution of the agreement was also not disputed during the course of arguments. Admittedly, the defendant has not stepped into the witness box. Even the plaintiff's witness who was the Attorney holder, was not cross examined. 7. Learned counsel Sri K. Sarmah has vehemently .argued that the plaintiff was not entitled to any relief under issue No.4 on the basis of the statement of the Attorney holder. The precise argument of the counsel for the appellant is that as the plaintiff has not stepped into the witness box, the suit could not be decreed as the facts were within the knowledge of the plaintiff only and that the Attorney holder could not depose regarding the factual position in his statement. The counsel has cited the case of Ram Prasad vs. Hari Narain & others reported in AIR 1998 Rajasthan 185 for the proposition that the Power of Attorney holder is not entitled to appear as witness for the party appointing him and that the word 'acts' incorporated in Order 3 Rule 2 would not include act of Power of Attorney holder to appear as witness on behalf of a party. 8. Learned counsel for the plaintiff/respondent Mr. SP Roy, assisted by Mr. C. Baruah, while countering the argument of the counsel for the appellant has argued that the Attorney holder is a competent witness under section 118 of the Evidence Act. The counsel has referred to the provisions of section 120 of the Evidence Act in order to control that the Attorney holder in the instant case, c being husband, could depose about the factual position. The counsel has referred to the provisions of section 120 of the Evidence Act in order to control that the Attorney holder in the instant case, c being husband, could depose about the factual position. Sections 118 and 120 of the Evidence Act are reproduced below : “118. Who may testify : All persons shall be competent to testify unless the Court considers that they are prevented from understanding the question 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. 120. Parties to civil suit, and their wives or husbands, Husband or life 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 witness. In criminal proceedings against any person, the husband or wife of such person, respectively, shall be a competent witness.” 9. We have given our thoughtful consideration to the arguments of the counsel for the parties and hasten to add that there is absolutely no force in the argument of the counsel for the defendant/appellant. Section 118 of the Evidence Act clearly lays down that all persons are competent to depose before the Court, unless the Court thinks that such witnesses are prevented from understanding the question put to them on account of their being of tender or extreme old age etc. The Attorney holder of a party on the interpretation of section 118, by all means is a competent witness to depose regarding such facts which are within his knowledge. If a particular fact is not within his knowledge, he can be disbelieved to that extent but it cannot be held, that whenever an Attorney holder appears into the witness box, his evidence has to be brushed aside on the ground that he is not a competent witness. Order 3 Rule 2 of the Civil Procedure Code generally deals with the recognised agents and their appearance etc but the provisions made thereunder do not afford any guidance about their being competent or incompetent witness and therefore, reference to the said provisions is besides the point. Order 3 Rule 2 of the Civil Procedure Code generally deals with the recognised agents and their appearance etc but the provisions made thereunder do not afford any guidance about their being competent or incompetent witness and therefore, reference to the said provisions is besides the point. It can further be safely held on the basis of section 120 of the Evidence Act that a husband or a wife are competent witnesses to depose before a Court of law. It appears to us that the aforesaid provision has been made making husband or wife to be competent witness in view of their relationship. 10. The aforesaid discussion brings us to the decision of the Gujarat High Court in Parikh Amratlal's case reported in AIR 1983 NOC 108 (Guj). The decision of Gujarat High Court is applicable on all force. Following observations can be reproduced with advantage: “The question whether the general power of attorney holder of a party can be a competent (witness on behalf of a party before a judicial tribunal or authority has to be answered in the light of section 118 of the Evidence Act and for answering that question the provisions of Order 3, Rule 1 and 2 (a) of the Civil Procedure Code are beside the point and can be afford no guidance whatsoever. Giving deposition on oath as a power of attorney holder of a party is not a part of pleadings. It is a part of the procedure for proving a case by examining a competent witness. Who can be a competent witness is indicated by the Evidence Act alone as per section 118. The power of attorney holder of a party, only on the ground that he holds the power of attorney, cannot be said to be in category of persons who are incapable of being witnesses as provided by section 118 of the Evidence Act. Whether such a power of attorney holder has personal knowledge about the matters in controversy may be a question which can be thrashed out by cross examining him and if it is found that the power of attorney holder has no personal knowledge about the facts in controversy, the evidentiary value of his deposition may be whittled down. But that has nothing to do with the competence of such a attorney holder to depose before a Court of a judicial Tribunal as a competent witness. But that has nothing to do with the competence of such a attorney holder to depose before a Court of a judicial Tribunal as a competent witness. AIR 1966 Madras, Ref. Held, the view of the Tribunal that the general power of attorney holder of a party was barred by Order 3, Rule 2 (a) Civil Procedure Code, 1908, from deposing before a judicial Tribunal or a Court was totally untenable.” We are in respectful agreement with the view taken by the Gujarat High Court. The view taken by the Rajasthan High Court in Ram Prasad's case (supra) is unacceptable to us as the same is opposed to the mandate of section 118 of the Evidence Act. 11. Adverting to the facts in hand, it has been seen by us that the plaint was signed and the suit was instituted by the plaintiff herself. The Power of Attorney clearly stipulates that the husband, Attorney holder was authorised to lead evidence in the present suit itself. In view thereof, there is absolutely nothing wrong in the deposition of PW 1 which has rightly been accepted by the trial Court. No legal error has been committed by the trial Court while accepting the statement of-the Attorney holder, who as has been observed above, has not been even cross examined. For the reasons recorded above, the appeal of the defendant/appellant fails and the same is dismissed with no order as to costs.