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2019 DIGILAW 1122 (KAR)

Elfrida J Sequeira v. Sydney Martin Brice D"Souza

2019-06-06

KRISHNA S.DIXIT

body2019
JUDGMENT : 1. Petitioner being the plaintiff in O.S.No.20/2013 for a decree of declaration, partition and other reliefs is invoking the writ jurisdiction of this Court for assailing the order dated 05.12.2014 whereby her application filed under Order XXVI Rules 4 (1) (a) (2) (3), 6, 7 & 8 read with Section 151 of CPC, 1908 for recording of her evidence by Court Commissioner has been rejected. After service of notice, the respondent-defendants have entered appearance through their learned counsel who resists the writ petition. 2. The learned counsel for the respondent petitioner plaintiff argues that, regard being had to the advanced age of the petitioner i.e., 78 years; her bad health condition as prima facie demonstrated by the material placed on record before the Court below and the long distance of about 400 kms between her residential place i.e., Bangalore City and suit place i.e., Karkala town, the impugned order rejecting her application breeds lot of injustice and hardship and therefore, the same warrants indulgence of writ court; the Court below proceeded on a wrong assumption that the petitioner-plaintiff can lead her evidence by appointing a Power of Attorney which course, in view of the decision of the Apex Court in the case of Janki Vashdeo Bhojwani and Another v. Indusind Bank Ltd. and Others (2005) 2 SCC 217 , is legally impermissible. He lastly submits that whatever reasonable cost the contesting respondent would incur for travelling to and staying at Bangalore during the course of recording of the evidence, would be reimbursed. So arguing, he seeks allowing of the Writ Petition. 3. Per contra, learned counsel appearing for the contesting respondent (defendant No.6), all others having been placed exparte in the Court below, opposes the Writ Petition making submission in justification of the impugned order contending that the recording of the evidence by Commission is not desirable in this case inasmuch as, there is a plurality of defendants who are residents of the jurisdictional area of the trial Court and some of them being abroad; if the Commission is to record evidence of the petitioner at Bengaluru, the defendants and their counsel, all in a troop have to travel from Karkala leaving their local cases/jobs, this would cause enormous hardship apart from huge expenditure. Otherwise also the counsel submits, the Writ Petition does not deserve to be allowed. 4. Otherwise also the counsel submits, the Writ Petition does not deserve to be allowed. 4. I have heard the learned counsel for the petitioner and the learned counsel for the contesting respondent. I have perused the Writ Petition Papers and the decision cited at the Bar. 5. The suit is for a decree of declaration, partition and other reliefs; petitioner plaintiff has attained the age of 78 years and suffering from age related difficulties to which are added some diseases/disablements; the medical and other documents that accompany her application which is supported by an affidavit prima facie show that the petitioner would be put to enormous hardship and injustice if she is made to travel from Bengaluru City to the Court of Karkala which is at a distance of admittedly about 400 kms. It is true that the contesting respondent i.e., defendant No.1 and his counsel may be put to some difficulty if they are made to travel to and stay at Bangalore, leaving the job at hand in Karkala. However this difficulty can be compensated by imposition of reasonable cost which the petitioner volunteers to bear. Thus, the first objection withers away in thin air. 6. The second objection that there are other respondents/defendants who too have to travel and consequently, who too would be put to same difficulty as the contesting respondent, does not merit consideration since all of them having been placed exparte in the Court below. For those reside abroad, it makes not much difference whether evidence is recorded at Bangalore or at Karkala, if at all they get the exparte order set-aside. 7. The reasoning of the Court below that petitioner-plaintiff may lead her evidence by examining a power of attorney is bit difficult to accept in view of the decision of the Apex Court in the case of Janki Vashdeo Bhojwani supra, paragraph Nos. 17 and 18 whereof read as under: "17. On the question of power of attorney, the High Courts have divergent views. In the case of Shambhu Dutt Shastri v. State of Rajasthan it was held that a general power-of-attorney holder can appear, plead and act on behalf of the party. He can only appear in his own capacity. No one can delegate the power to appear in the witness box on behalf of himself. To appear in a witness box is altogether a different act. He can only appear in his own capacity. No one can delegate the power to appear in the witness box on behalf of himself. To appear in a witness box is altogether a different act. A general power-of- attorney holder cannot be allowed to appear as a witness on behalf of plaintiff in the capacity of the plaintiff. 18. The aforesaid judgment was quoted with approval in the case of Ram Prasad v. Hari Narain. It was held that the word "acts" used in Rule 2 of Order 3 CPC does not include the act of power-of-attorney holder to appear as a witness on behalf of a party. Power-of-attorney holder of a party can appear only as a witness in his personal capacity and whatever knowledge he has about the case he can state on oath but he cannot appear as a witness on behalf of the party in the capacity of that party. If the plaintiff is unable to appear in the court, a commission for recording his evidence may be issued under the relevant provisions of CPC." 8. Viewed from any angle, justice of the case requires that the petitioner-plaintiffs application be allowed and her evidence be recorded at Bengaluru, subject to payment of cost to the other side. 9. In the above circumstances, this Writ Petition succeeds; impugned order is set at naught; petitioners subject application is favoured; the Principal District Judge/Principal City Civil Judge or his nominee (preferably at the Mayo Hall Court) shall accomplish the recording of evidence of petitioner-plaintiff in the suit, after issuing notice, within three months; the jurisdictional Court at Karkala shall transmit the suit papers after retaining a xerox copy of entire file, to the Principal District Judge/Principal City Civil Judge, Bengaluru, forthwith, all at the cost of the petitioner-plaintiff; 10. The petitioner shall deposit an initial sum of Rs.25,000/- in the trial Court within two weeks. The Commission Court shall adjudge the cost payable to the respondent/defendant No.6 which shall include the reasonable expenses towards conveyance and lodging for the said defendant and his counsel.