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2013 DIGILAW 629 (ALL)

Omkar Singh Tyagi v. Alok Jain and Others

2013-02-22

SIBGHAT ULLAH KHAN

body2013
Sibghat Ullah Khan, J.— Petitioner is one of the defendants in O.S. No.248 of 2004, Surendra Kumar Jain since deceased and survived by legal representatives Vs. Sri Omkar Singh Tyagi and others. After the death of the original plaintiff, his son Alok Jain and daughter Alka Jain have been substituted at his place. One V.K. Singh offered himself to be examined as witness at the place of plaintiff No.1/1, Alok Jain on the ground that Alok Jain had executed power of attorney in his favour for the said purpose. Defendant filed an application stating that Alok Jain had never appeared in the suit and power of attorney in favour of V.K. Singh was not filed in the original (only photostat copy had been filed) hence Alok Jain must be directed to appear before the court and verify the correctness of power of attorney. The said application has been rejected by Additional Civil Judge (J.D.), Court No.4, Meerut on 08.08.2012. Against the said order petitioner filed revision being Revision No.NIL of 2012. District Judge, Meerut held that the revision being directed against interlocutory order was not maintainable. Both the orders have been challenged through this writ petition. In my opinion, revisional court's order is correct. There is no fault in it. As far as the order dated 08.08.2012 passed by the trial court is concerned, I do not find any such error in the said order, which may warrant interference in exercise of writ jurisdiction. The question that what is the value of photostat copy of power of attorney may be decided, if necessary, at the time of final decision of the suit. A party to a suit can examine any witness even without executing any power of attorney. Executing power of attorney for giving evidence is virtually meaningless. If a fact is to be proved by plaintiff or defendant by himself no one else can prove the said fact. There is no provision of giving evidence by a witness on behalf of another witness. It becomes hearsay and inadmissible. In respect of deposition of power of attorney holder at the place of the party to a suit, reference may be made to the authority of Supreme Court reported in Man Kaur v. Hartar Singh Sangha, 2010 (10) SCC 512 . It becomes hearsay and inadmissible. In respect of deposition of power of attorney holder at the place of the party to a suit, reference may be made to the authority of Supreme Court reported in Man Kaur v. Hartar Singh Sangha, 2010 (10) SCC 512 . The trial court while deciding the suit shall assess the value of evidence of Sri V.K. Singh, the alleged power of attorney holder and effect of non-examination of plaintiff as witness, if none of the plaintiffs is examined as witness, in the light of the aforesaid authority of the Supreme Court. Writ petition is disposed of. _____________