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2017 DIGILAW 151 (CAL)

Malay Kumar Sen v. Rekha Das

2017-02-07

ASHIS KUMAR CHAKRABORTY

body2017
JUDGMENT : Ashis Kumar Chakraborty, J. 1. The subject matter of challenge in the present revisional application is an order dated September 22, 2016 passed by the learned Civil Judge (Junior Division), Additional Court, Chandernagore in Title Suit No. 726 of 2014 on the application of the revisional petitioner for not to allow the second power of attorney holder of the opposite party, the plaintiff in the suit, to adduce evidence and not to allow the power of attorney executed by the opposite party as produced by the power of attorney holder as an exhibit. The learned Court below rejected the said application on the ground that in the present case the plaintiff is an old lady, who is unable to adduce before the Court as she is and the power of attorney holder is familiar with the matters involved in the suit. The learned Court below further held that since the power of attorney disclosed by the opposite party plaintiff's witness is a registered document, the same is as public document within the meaning of Section 74(2) of the Indian Evidence Act and the same is admissible under Section 76 of the said Act. 2. The brief facts giving rise to the present revisional application are that the opposite party filed Title Suit No. 103 of 1996, before the Court of the learned 1st Munsif at Chandernagore, against the petitioner, claiming a decree for declaration and permanent injunction. The opposite party, in her plaint, alleged that by a registered conveyance dated August 6, 1985 she purchased the A schedule property, along with the passagery right over the common passage of 6 feet width, being the C schedule property and after obtaining a sanctioned building plan she has constructed a single storied building at the said A schedule property having access only through the C schedule property. The plaint contains the averment that the building constructed at the A schedule property, having access through the C schedule common passage is possessed by the plaintiff through her only daughter, Smt. Devi Dutta wife of Sri Manoj Dutta. According to the opposite party plaintiff, the petitioner defendant is trying to encroach the C schedule common passage and claiming the said common passage to be part of his own property. The petitioner, as the sole defendant is contesting the said suit and has filed his written statement and additional written statement. According to the opposite party plaintiff, the petitioner defendant is trying to encroach the C schedule common passage and claiming the said common passage to be part of his own property. The petitioner, as the sole defendant is contesting the said suit and has filed his written statement and additional written statement. In his said pleadings, the petitioner has not disputed the averment in the plaint about the possession of the A schedule property by the daughter of the opposite party plaintiff. 3. Considering the averments of the parties the learned Court below framed issues and the trial of the suit has commenced. The opposite party executed a power of attorney in favour of her daughter Smt. Devi Dutta authorising the latter, inter alia, to conduct the suit as also to adduce evidence on her behalf. When the said daughter of the opposite party filed her affidavit-in-chief, disclosing the power of attorney executed by her mother, the petitioner filed an application before the learned Court below raising an objection that as the constituted attorney of the opposite party, her daughter cannot be allowed to adduce evidence as plaintiff's witness. However, by order dated August 13, 2015 the learned Court below rejected the said objection raised on behalf of the petitioner. By order dated September 01, 2015 passed in the revisional application, being C.O. 3188 of 2015 a learned Single Judge of this Court upheld the said order dated August 13, 2015. 4. Thereafter, the said daughter of the opposite party No. 1 started to adduce evidence in the suit as the PW-1. However, before the conclusion of her evidence the said daughter of the opposite party died. Thereafter, the opposite party executed a fresh power of attorney in favour of the husband of her said deceased daughter. 4. Thereafter, the said daughter of the opposite party No. 1 started to adduce evidence in the suit as the PW-1. However, before the conclusion of her evidence the said daughter of the opposite party died. Thereafter, the opposite party executed a fresh power of attorney in favour of the husband of her said deceased daughter. When the said son-in-law of the opposite party No. 1 appeared before the learned Court below and filed his affidavit-in-chief, under Order 18 Rule 4 of the Code of Civil Procedure (in short "the Code"), disclosing the registered power of attorney executed in his favour by the opposite party and sought to exhibit the said power of attorney, the petitioner filed another application raising objection that the certified copy of the registered power of attorney produced by the said son-in-law of the opposite party cannot be exhibited, nor can the son-in-law of the opposite party can be allowed to adduce evidence in the suit. By the order dated September 22, 2016 the learned Court below rejected the said application filed by the petitioner. As mentioned earlier, it is the said order dated September 22, 2016 passed by the learned Court below which is the subject matter of challenge in this revisional application at the instance of the petitioner, the defendant in the suit. 5. Assailing the impugned order passed by the learned Court below Mr. Buddhadeb Ghosal, learned advocate appearing for the petitioner defendant submitted that from the statements made in the power of attorney executed by the opposite party No. 1 plaintiff it is clear that she is presently residing at Chandernagore, within a very short distance from the learned Court below. According to him, when the opposite party herself is residing at the A schedule suit property at Chandernagore, she executed the power of attorney in favour of her said son-in-law to adduce evidence in the suit on her behalf, with the sole intention not to appear before the learned Court below and to avoid cross-examination. It was urged that if the opposite party is suffering from any illness, she ought to have filed an application under Order 26 Rule 1 of the Code for her examination on Commission, but she cannot be allowed to adduce evidence through any constituted attorney. According to Mr. It was urged that if the opposite party is suffering from any illness, she ought to have filed an application under Order 26 Rule 1 of the Code for her examination on Commission, but she cannot be allowed to adduce evidence through any constituted attorney. According to Mr. Ghosal, it is settled law that Order 3 Rules 1 and 2 of the Code empowers the holder of an power of attorney to 'act' on behalf of the principal and the word 'acts' employed in the said provision confines only to 'acts' done by the power of attorney holder in exercise of power granted by the instrument and the said 'acts' would not include deposing in place and stead of the principal. In support of such contention, he relied on the decision of the Supreme Court in the case of Janki Vashdeo Bhojwani vs. Indusind Bank Ltd. reported in (2005)2 SCC 217 . Relying on the decision of the Supreme Court in the case of Man Kaur vs. Hartar Singh Sangha reported in (2010)10 SCC 512 , it was also contended on behalf of the petitioner that where a party to the suit does not appear in the witness box and states his own case on oath and does not offer himself to be cross-examined by the other side, a presumption would arise that the case set up by him is not correct. On these grounds, Mr. Ghosal strenuously contended that the impugned order passed by the learned Court below suffers from patent illegality, the same cannot be sustained and this Court should set aside the impugned order. 6. On the other hand, Mr. Ayan Banerjee, learned advocate appearing for the opposite party plaintiff submitted that it is settled law that if a power of attorney holder of a party to the suit is aware of the facts relating the issues involved in the suit, there cannot be legal bar for the said power of attorney holder to adduce evidence in the suit. Ayan Banerjee, learned advocate appearing for the opposite party plaintiff submitted that it is settled law that if a power of attorney holder of a party to the suit is aware of the facts relating the issues involved in the suit, there cannot be legal bar for the said power of attorney holder to adduce evidence in the suit. It was also urged that in the present case by the order dated September 1, 2015 passed in C.O. 3188 of 2015 a learned Single Judge already held that on the strength of the power of attorney executed by the opposite party No. 1, the daughter of the opposite party No. 1 was entitled to adduce evidence in the suit and the effect of the evidence adduced by the constituted attorney can be considered by the Court at the time of final hearing of the suit. According to him, in view of the said order dated September 01, 2015 passed by this Court which is binding upon the parties the learned Court below was absolutely correct to pass the impugned order rejecting the application filed by the defendant petitioner which was aimed to stall the hearing of the suit. 7. I have considered the materials on record, as well as the arguments advanced by the learned advocates appearing for the respective parties. In the present case, the plaint contains the averment of the opposite party plaintiff that she is the owner of the A schedule suit property, with the C schedule common passage and her daughter Devi Dutta, since deceased along with her family are residing in the building constructed at the A schedule suit property. In support of her claim for ownership in respect of the A schedule suit property and the C schedule common passage the opposite party has relied upon the deed of conveyance dated August 6, 1985 executed by the original owner Pravash Chandra Kundu, in her favour. During her lifetime when the daughter of the opposite party sought to adduce evidence as the plaintiff's witness, the defendant petitioner filed an application raising objection that the said daughter of the opposite party No. 1 as the constituted attorney of her mother was not entitled to adduce evidence in the suit which was rejected by the learned Court below. During her lifetime when the daughter of the opposite party sought to adduce evidence as the plaintiff's witness, the defendant petitioner filed an application raising objection that the said daughter of the opposite party No. 1 as the constituted attorney of her mother was not entitled to adduce evidence in the suit which was rejected by the learned Court below. By the order dated September 01, 2015 passed in C.O. 3188 of 2015, a learned Single Judge of this Court upheld the said order of rejection. Therefore, I find substance in the submission advanced on behalf of the opposite party plaintiff that the said order dated September 01, 2015 passed by the learned Single Judge of this Court is binding upon the parties and the learned Court below did not fall into an error of law to pass the impugned order. The copy of the registered power of attorney dated July 28, 2016 executed by the opposite party in favour of her son-in-law, Manoj Kumar Dutta has been disclosed to the petitioner and a copy of the same has been annexed to this revisional application. From a copy of the registered power of attorney executed by the opposite party in favour of the said her son-in-law, it appears that it is the case of the opposite party that after her husband's death, she has started to reside at the A schedule suit property along with the family members of her said daughter, since deceased and she has appointed her said son-in-law as her constituted attorney to look after all the affairs of the properties involved in the suit, to proceed with the present suit as well as, to adduce evidence on her behalf in the suit. In the said power of attorney it is also mentioned that both the opposite party No. 1 and her said son-in-law are residing in the building constructed at the A schedule suit property. Neither in the application before the learned Court below, nor in the present revisional application the petitioner has disputed the said son-in-law of the opposite party to be residing in the building at the A schedule suit property. Neither in the application before the learned Court below, nor in the present revisional application the petitioner has disputed the said son-in-law of the opposite party to be residing in the building at the A schedule suit property. When the basis of the claims of the opposite party in the suit is the registered deed of conveyance dated August 06, 1985 executed by the original owner, Pravash Chandra Kundu and the defendant petitioner could not dispute the claim of the opposite party No. 1 that her said daughter, since deceased along with her family resided and the said son-in-law is still residing in the building at the A schedule suit property, I do not find any substance in the contention raised on behalf of the defendant petitioner that the opposite party cannot adduce evidence in the suit through her said son-in-law, the constituted attorney. Whether the evidence to be adduced by the said son-in-law of the opposite party will prove the claim of the opposite party plaintiff in the suit is to be decided by the learned Court below at the hearing of the suit. It is settled law that judgments should not be read as a statute and a decision of a Court has to be considered in the context in which it was rendered. 8. In the case of Janki Vashdeo Bhojwani (supra) by an order dated February 10, 2004 the Supreme Court had remitted the matter back to the Debt Recovery Tribunal to record a finding whether or not on the date the decrees were passed, the appellants were co-owners of the property situated at Pune which has been attached by the Tribunal as the properties belonging to the some of the respondents the certificate debtors and if so to what extent. The Debt Recovery Tribunal was further directed to ascertain whether the appellants had any independent source of income and whether they had contributed for purchase of the said property from their own independent income. However, before the Debt Recovery Tribunal the appellants themselves did not lead any evidence, but it was their power of attorney holder who appeared before the Debt Recovery Tribunal. However, before the Debt Recovery Tribunal the appellants themselves did not lead any evidence, but it was their power of attorney holder who appeared before the Debt Recovery Tribunal. In the context of the direction given by the said order dated February 10, 2004 the Supreme Court held that the question whether the appellants have any independent source of income and have contributed towards the purchase of the property from their own independent income can be only answered by the appellants themselves and not by a mere holder of the power of attorney from them. The Court held that the power of attorney holder does not have personal knowledge of the matter of the appellants and, therefore, he can neither depose on his personal knowledge nor can he be cross-examined, on those facts which are to the personal knowledge of the principal (para-12). In paragraph 14 of the said decision the Supreme Court further held that having regard to the directions in the order of remand, the Court placed the burden of proving on the appellants that they have a share in the property, it was obligatory on the part of the appellants to have entered the box and discharge the burden, but when they allowed their power of attorney holder to enter the box and depose instead of themselves, the appellants failed to establish that they have any independent source of income and they had contributed for the purchase of the property from their own independent income. 9. In the decision of Man Kaur (supra) the Supreme Court was dealing with a case where the plaintiff himself in a suit for specific performance did not adduce evidence and sought to prove his readiness and willingness to perform the agreement in question through a person whom, he had appointed as a constituted attorney to adduce evidence. In that factual context, the Supreme Court held in view of the mandatory requirement of Section 16(c) of the Specific Relief Act, 1963, the Supreme Court held as follows: "17. In that factual context, the Supreme Court held in view of the mandatory requirement of Section 16(c) of the Specific Relief Act, 1963, the Supreme Court held as follows: "17. ...If a plaintiff has to prove that he was always ready and willing to perform his part of the contract, that is, to perform his obligations in terms of the contract, necessarily he should step into the witness box and give evidence that he has all along been ready and willing to perform his part of the contract and subject himself to cross-examination on that issue. A plaintiff cannot obviously examine in his place, his attorney-holder who did not have personal knowledge either of the transaction or of his readiness and willingness. Readiness and willingness refer to the state of mind and conduct of the purchaser, as also his capacity and preparedness on the other. One without the other is not sufficient. Therefore, a third party who has no personal knowledge cannot give evidence about such readiness and willingness, even if he is an attorney-holder of the person concerned." 10. In the said case the constituted attorney who adduced on behalf of the plaintiff seeking specific performance of the contract could not substantiate the readiness and willingness of the plaintiff to perform his part of the obligations under the contract and the plaintiff himself did not adduce evidence in the suit. In the said factual context the Supreme Court, in the said case, applied the adverse presumption under Section 114 of the Evidence Act to hold that where a party to the suit does not appear in the witness box and states his own case on oath and does not offer himself to be cross-examined by the other side, a presumption would arise that the case set up by him is not correct. 11. However in the facts of the present case as already discussed earlier, I find that the decisions of the Supreme Court in the cases of Janki Vashdeo Bhojwani (supra) and Man Kaur (supra) do not assist the petitioner. 12. 11. However in the facts of the present case as already discussed earlier, I find that the decisions of the Supreme Court in the cases of Janki Vashdeo Bhojwani (supra) and Man Kaur (supra) do not assist the petitioner. 12. In view of the provisions contained on Sections 74(2), 76 and 79 of the Evidence Act, 1872 I do not even find any infirmity in the decision of the learned Court below, rejecting the objection raised to the certified copy of the registered power of attorney executed by the opposite party in favour of her said son-in-law, being exhibited in the suit. 13. For all the foregoing reasons, I do not find that the learned Court below has committed any error of law to pass the impugned order. Accordingly, the revisional application stands rejected. 14. It appears that since the year 1996, the suit filed by the opposite party is pending and, as such, the learned Court below is requested to dispose of the suit, presently numbered as Title Suit No. 726 of 2014 as expeditiously as possible, preferably within June 30, 2017 by way of day to day hearing, without granting any unnecessary adjournment to either of the parties. 15. There shall, however, be no order as to costs. 16. Urgent certified copy of this judgment, if applied for, be supplied to the parties, subject to compliance with all requisite formalities.