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Madhya Pradesh High Court · body

2019 DIGILAW 327 (MP)

Narmada Prasad v. Bedilal Burman

2019-04-16

SUJOY PAUL

body2019
ORDER : 1. This petition filed under Article 227 of the Constitution challenges the order dated 28.11.2017, whereby I.A. No. 2 of 2017 dated 04.10.2017 filed by the petitioner/defendant was rejected by the Court below. 2. The admitted facts between the parties are that in the instant civil suit the petitioner/defendant filed a power of attorney in favour of his son and apprised the Court below in specific that his son will enter the witness-box on his behalf. In turn, the son, namely, Jitendra Burman entered the witness-box, deposed his statement and was cross-examined. The petitioner/defendant introduced his son as power of attorney holder on the ground that he is suffering from an aliment of forgetfulness because of which his memory was not in order and, therefore, his son will depose on behalf of the defendant. Thereafter, the defendant himself filed an application dated 04.10.2017 (Annexure-P/6) seeking permission to lead evidence. The same was opposed by the plaintiff by filing reply dated 07.11.2017. The Court below rejected the said application of petitioner/defendant by impugned order dated 28.11.2017. 3. Mr. Verma, learned senior counsel criticized this order by contending that under Order 3, Rules 1 and 2 CPC, the power of attorney holder has a limited right of leading evidence/deposition. By taking this Court to the judgment of Supreme Court reported in Janki Vashdeo Bhojwani and Another vs. Indusind Bank Ltd. and Others, AIR 2005 SC 439 , it is argued that there was a cleavage of opinion between judgment of two High Courts on the question as to whether power of attorney holder can lead evidence on behalf of principal and to what extent. The Bombay High Court and Rajasthan High Court have taken divergent views and these judgments/matters were considered by Apex Court in the case of Janki Vashdeo Bhojwani (supra). It is urged that curtains are finally drawn on this issue by the Apex Court by holding that power of attorney holder does not have the personal knowledge of the matter of the appellant and, therefore, he can neither depose on his personal knowledge nor he can be cross-examined on those facts which are to the personal knowledge of the principal. Similarly, he cannot depose for the principal in respect of the matter which only the principal can have a personal knowledge and in respect of which the principal is entitled to be cross-examined. Mr. Similarly, he cannot depose for the principal in respect of the matter which only the principal can have a personal knowledge and in respect of which the principal is entitled to be cross-examined. Mr. Verma, learned senior counsel urged that the view taken by Rajasthan High Court in the case of Shambhu Dutt Shastri vs. State of Rajasthan, 1986 (2) WLN 713 , was held to be correct law in Janki Vashdeo Bhojwani (supra) and this ratio decidendi was followed in S. Kesari Hanuman Goud vs. Anjum Jehan and Others, (2013) 12 SCC 64 : 2013 AIR SCW 3561. It is submitted that in view of settled legal position, the Court below has erred in disallowing the permission to lead evidence to the petitioner/defendant. Mr. Verma, learned senior counsel further urged that defendant has not closed his evidence and if defendant is permitted to depose his statement, it will not cause any prejudice to the plaintiff. Moreso, after recording of evidence of defendant, the plaintiff can very well take advantage of both the statements recorded on behalf of the defendant. 4. Per contra, Mr. Tiwari, learned counsel for the plaintiff/respondent urged that there is no illegality or perversity in the order dated 28.11.2017, which warrants interference by this Court. By taking this Court to the previous order-sheet of Court below dated 09.08.2017, it is urged that the defendant with eyes open made it clear that his son, power of attorney holder, will enter the witness-box on his behalf. The defendant is therefore estopped by his own stand and cannot be permitted to take an u-turn at a later stage of proceedings. In fact, Mr. Tiwari argued that defendant is trying to improve his case after examining the cross-examination part of evidence of his son. No medical documents were filed before the Court below to show that defendant previously lost his memory and subsequently gained the same and became fit to depose his own statement. Thus, Court below has rightly held that it is abuse of process of court and no interference is needed by this Court on such an order. 5. No other point is pressed by learned counsel for the parties. 6. I have heard learned counsel for the parties at length and perused the record. 7. Thus, Court below has rightly held that it is abuse of process of court and no interference is needed by this Court on such an order. 5. No other point is pressed by learned counsel for the parties. 6. I have heard learned counsel for the parties at length and perused the record. 7. Indisputably, the petitioner/defendant apprised the Court below that he is introducing his son/power of attorney holder to depose his statement on his behalf. The question is that even if he had taken such a stand before the Court below, whether his son can be treated to be competent to depose the statement on his behalf in the teeth of Order 3, Rules 1 and 2 CPC coupled with the judicial pronouncements in the cases of Janki Vashdeo Bhojwani (supra) and S. Kesari Hanuman Goud (supra). It is profitable to take note of certain paragraphs of said judgments. In Janki Vashdeo Bhojwani (supra) it has been held as under: “12. In the context of the directions given by this Court, shifting the burden of proving on to the appellants that they have a share in the property, it was obligatory on the appellants to have entered the box and discharged the burden by themselves. 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 power of attorney from them. 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. 13. Order 3, Rules 1 and 2, CPC empower the holder of power of attorney to “act” on behalf of the principal. In our view the word “acts” employed in Order 3. Rules 1 and 2. CPC confines only to in respect of “acts” done by the power-of-attorney holder in exercise of power granted by the instrument. The term “acts” would not include deposing in place and instead of the principal. In our view the word “acts” employed in Order 3. Rules 1 and 2. CPC confines only to in respect of “acts” done by the power-of-attorney holder in exercise of power granted by the instrument. The term “acts” would not include deposing in place and instead of the principal. In other words, if the power-of-attorney holder has rendered some “acts” in pursuance of power of attorney, he may depose for the principal in respect of such acts, but he cannot depose for the principal for the acts done by the principal and not by him. Similarly, he cannot depose for the principal in respect of the matter of which only the principal can have a personal knowledge and in respect of which the principal is entitled to be cross-examined. 17. On the question of power of attorney, the High Courts have divergent views. In the case of Shambhu Dutt Shastri vs. State of Rajasthan (supra) it was held that a general power-of-attorney holder can appear, plead and act on behalf of the party but he cannot become a witness 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. A general power-of-attorney holder cannot be allowed to appear as a witness on behalf of the plaintiff in the capacity of the plaintiff. 18. The aforesaid judgment was quoted with approval in the case of Ram Prasad vs. Hari Narain, AIR 1998 Raj. 185 : (1998) 3 Cur CC 183. 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. 21. 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. 21. We hold that the view taken by the Rajasthan High Court in the case of Shambhu Dutt Shastri, 1986 (2) WLN 713 (Raj) followed and reiterated in the case of Ram Prasad, AIR 1998 Raj. 185 : (1998) 3 Cur CC 183, is the correct view. The view taken in the case of Shri Humberto Luis vs. Shri Floriano Armando Luis, (2002) 2 Bom. C.R. 754, cannot be said to have laid down a correct law and is accordingly overruled.” (Emphasis supplied) 8. Similarly, in S. Kesari Hanuman Goud (supra) the Apex Court opined as under: “23. It is a settled legal proposition that the power-of-attorney holder cannot depose in place of the principal. The provisions of Order 3, Rules 1 and 2, CPC empower the holder of the power of attorney to “act” on behalf of the principal. The word “acts” employed therein is confined only to “acts” done by the power-of-attorney holder, in exercise of the power granted to him by virtue of the instrument. The term “acts” would not include deposing in place and instead of the principal. In other words, if the power-of-attorney holder has preferred any “acts” in pursuance of the power of attorney, he may depose for the principal in respect of such acts, but he cannot depose for the principal for acts done by the principal, and not by him. Similarly, he cannot depose for the principal in respect of a matter, as regards which, only the principal can have personal knowledge and in respect of which, the principal is entitled (sic liable) to be cross-examined. Vidhyadhar vs. Manikrao, (1999) 3 SCC 573 : AIR 1999 SC 1441 , Janki Vashdeo Bhojwani vs. Indusind Bank Ltd. (2005) 2 SCC 217 : AIR 2005 SC 439 , Shankar Finance and Investments vs. State of A.P. (2008) 8 SCC 536 : (2008) 3 SCC (Cri) 558 : AIR 2009 SC 422 and Man Kaur vs. Hartar Singh Sangha, (2010) 10 SCC 512 : (2010) 4 SCC (Civ) 239 : 2010 AIR SCW 6198.” (Emphasis supplied) 9. A plain glance of these paragraphs will lead to an inevitable conclusion that a power of attorney holder has a limited right to depose. A plain glance of these paragraphs will lead to an inevitable conclusion that a power of attorney holder has a limited right to depose. He cannot be permitted to depose on behalf of the principal for the acts done by the principal. As a necessary corollary, he cannot be cross-examined on those aspects in respect of the principal. Thus, right to adduce evidence by the power of attorney holder is available to a limited extent. By no stretch of imagination, he can be treated to be a representative of principal in all aspects and, therefore, it cannot be said that stand of defendant will deprive him from entering the witness-box. In other words, this is trite that no estoppel operates against the law. In view of Order 3, Rules 1 and 2, CPC and the law laid down by the Supreme Court in the cases of Janki Vashdeo Bhojwani (supra) and S. Kesari Hanuman Goud (supra), I am unable to hold that son/power of attorney holder had entered into the shoes of father and his statement can be treated to be statement of father/principal. To this extent, the order of Court below becomes vulnerable. 10. The Court below has rejected the application on yet another ground. This ground is regarding abuse of process of the Court. The Court below opined that neither there exists any material on record to show that previously defendant was unwell/lost memory because of which he had introduced his son as a power of attorney holder nor there exists any medical documents to show that he had now regained his memory. Thus, the Court below opined that it is a clear case of abuse of process of the Court. 11. In the considered opined of this Court, once it is held that the power of attorney holder cannot enter into the shoes of the principal, principal cannot be deprived to lead evidence in the case. Moreso, when evidence of defendant was not closed. I find substance in the argument of Mr. Verma, learned senior counsel for the petitioner that if defendant is permitted to lead evidence, it will not cause any prejudice to the plaintiff. Plaintiff can very well rely on both the statements deposed by the defendant witnesses. 12. Moreso, when evidence of defendant was not closed. I find substance in the argument of Mr. Verma, learned senior counsel for the petitioner that if defendant is permitted to lead evidence, it will not cause any prejudice to the plaintiff. Plaintiff can very well rely on both the statements deposed by the defendant witnesses. 12. In the peculiar factual backdrop of this case, once it is held that defendant has a right to enter the witness-box and evidence of power of attorney/holder will not foreclose his right, the question of abuse of process of Court does not arise. Resultantly, impugned order dated 28.11.2017 is set aside. The application dated 04.10.2017 (Annexure-P/6) is allowed. The Court below shall proceed from this stage in accordance with law. 13. Petition is allowed. No cost.