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Madhya Pradesh High Court · body

2012 DIGILAW 153 (MP)

Rajni Tiwari v. Bhagyawati Bai

2012-02-02

ALOK ARADHE

body2012
JUDGMENT : In this petition under Article 227 of the Constitutionof India the petitioner has challenged the validity of the order dated26-8-2010 passed by the Trial Court by which the Trial Court has held that thehusband of the petitioner though is competent witness under Section 120 of theIndian Evidence Act, yet he cannot be permitted to exhibit and prove thedocument filed by the wife. The facts,leading to filing of the writ petition, briefly stated, are that the petitionerhas filed a suit seeking the relief of permanent injunction. The petitionerfiled certain documents in support of her claim before the Trial Court. Therespondent defendant filed the written statement and contested the claim of thepetitioner. The petitioner filed the examination-in-chief of her husband in theform of affidavit. When the husband of the petitioner was being cross-examinedhe wanted to exhibit certain documents. Thereupon, the Counsel for respondentraised an objection that the petitioner cannot exhibit or prove the document.The Trial Court in view of the objection of the respondent held that though thehusband of the petitioner is competent witness under Section 120 of the IndianEvidence Act, 1872 yet he has not appeared before Court as attorney of theplaintiff and, therefore, he cannot be permitted to exhibit the document. LearnedCounsel for the appellant submitted that there is no provision of law whichdebars a competent witness to exhibit a document or to prove the document.Learned Counsel for the petitioner has drawn attention of this Court to Section1-A of the Powers of Attorney Act, 1882 and submitted that power of attorneyincludes any instruments empowering a specified person to act for and in thename of the person executing it. Therefore, the power of attorney is notrequired to prove any document. It is also submitted that under Order 3 Rule 1of the Code of Civil Procedure an appearance, application or act in or to anyCourt, required or authorised by law to be made ordone by a party in such Court, may except where otherwise expressly provided byany law be made or done by the party in person or by his recognised agent or by a pleader appearing, applying or acting as the case may be on hisbehalf. I haveconsidered the submissions made by learned Counsel for the petitioner. Section120 of the Indian Evidence Act reads as under : - "120. Parties to civil suit, and their wives or husbands. I haveconsidered the submissions made by learned Counsel for the petitioner. Section120 of the Indian Evidence Act reads as under : - "120. Parties to civil suit, and their wives or husbands. Husband or wife of person under criminal trial .- Inall civil proceedings the parties to the suit, and the husband or wife of anyparty to the suit, shall be competent witnesses. In criminal proceedingsagainst any person, the husband or wife of such person respectively, shall be acompetent witness." Thus fromperusal of Section 120 of the Indian Evidence Act, 1872, it is apparent that inall civil proceedings, the parties to the suit and the husband or wife of anyparty to the suit, shall be competent witnesses. Section 1-A of the Powers ofAttorney Act, 1882, which defines the expression 'power of attorney' reads asunder :-- "1-A.Definition .- In this Act, "Power ofAttorney" includes any instruments empowering a specified person to actfor and in the name of the-person executing it." Thus, fromperusal of Section 1-A of the Powers of Attorney Act, 1882 it is apparent thatpower of attorney is required to act for and in the name of the personexecuting it. Similarly, Order 3 Rule 1 of the Code of Civil Procedure reads asunder:- "OrderIII. Recognised Agents and Pleaders.- Rule 1. Appearance, etc., may be in person, by recognised agent or by pleader .- Any appearance, application or act in or to any Court, required or authorised by law to be made or done by a party in suchCourt, may, except where otherwise expressly provided by any law for the timebeing in force, be made or done by the party in person, or by his recognised agent, or by a pleader appearing, applying oracting, as the case may be, on his behalf: Provided that any such appearance shall, if the Court so directs bemade by the party in person." Thus, if allthe provisions referred to above are read conjointly, it is apparent that thereis no prohibition in law to the effect that a competent witness cannot bepermitted to exhibit the document. Under Section 120 of the Indian EvidenceAct, 1872 the husband of a party to the suit is competent witness, therefore,he is entitled to depose about the facts about which he or his wife has theknowledge. Under Section 120 of the Indian EvidenceAct, 1872 the husband of a party to the suit is competent witness, therefore,he is entitled to depose about the facts about which he or his wife has theknowledge. The husband of the petitioner being the competent witness for thewife can also be permitted to exhibit the document and there is no need toexecute the power of attorney. However, the question of proof of a document isaltogether different from the question of exhibiting a document. For theaforementioned reasons, the order dated 26-8-2010 in Paragraph 10 of the deposition sheet is herebyquashed. The husband of the petitioner shall be permitted to depose and toexhibit the documents which have been produced by him. Accordingly,the writ petition is disposed of. C.C. as per rules.