GANGAVVA Vs. ARJUNSA

JUDGEMENT

(1.) THE revision filed against the order of the Civil Judge (Jr. Dn.), Koppal in O. S. No. 180/97. The Plaintiff instituted the suit for permanent injunction restraining the defendant from interfering with the suit schedule property. At the stage of evidence, the husband of the plaintiff as power of attorney requested to be examined on behalf of the plaintiff. The defendant objected the request. The trial Court after considering the argument of both the sides placing reliance on the ruling of Rajasthan High Court in Ramprasad v. Harinarayan, AIR 1998 (Raj) 185, rejected the request that the husband of the plaintiff cannot be examined for and on behalf of the plaintiff as a substitute of the plaintiff. But he could be examined only as witness if he is competent to testify. Being aggrieved by the said order, the revision is filed.

(2.) THE Counsel for the petitioner relied on the Ruling of Gujarat High Court in Parikh Amratlal Ramanlal Trustee and Administrator of Sanskrit Pathasala Institution v. Rami Mafathlal Girdharilal, AIR 1983 NOC 108 (Guj) wherein it is held thus: The question whether the general power of attorney holder of a party can be a competent witness on behalf of a party before a judicial tribunal or authority has to be answered in the light of Sec. 118 of the Evidence Act and for answering that question the provisions of O. 3 Rr. 1 and 2 (a) of the Civil P. C. are beside the point and can afford no guidance whatsoever, giving deposition on oath as a power of attorney holder of a party is not a part of pleadings. It is a part of the procedure for proving a case by examining a competent witness. Who can be a competent witness is indicated by the Evidence Act alone as per S. 118. The power of attorney holder of a party, only on the ground that he holds the power of attorney, cannot be said to be in the category of persons who are incapable of being witness as provided by S. 118 of the Evidence Act. Whether such a power of Attorney holder has personal knowledge about the matters in controversy may be a question which can be thrashed out by cross-examining him and if it is found that the power of Attorney holder has no personal knowledge about the facts in controversy the evidentiary value of his deposition may be whittled down, but that has nothing to do with the competence of such a power of attorney holder to depose before a Court of a judicial Tribunal as a competent witness. AIR 1966 Mad 14, Ref. Held, the view of the Tribunal that the general power of attorney holder of a party was barred by O. 3 R. 2 (a), Civil P. C. , 1908 from deposing before A Judicial Tribunal or a Court was totally untenable. AIR 1955 Bom 262, Explained and Disting. The proposition of law about the competence of a person to testify as a witness is governed by Section 118 of the Evidence Act. The provisions of Order 3, Rule 2 of C. P. C. deals with the legal position of the validity and competence of the acts of the power of attorney in conduct of cases for a limited purpose and in a limited context. Giving evidence before a Court of law is an act within the meaning of the said provision. However, everyone is not entitled or competent to give evidence as witness before a Court unless one fulfills the requirements of the qualifications envisaged in Sec. 118 of the Evidence Act. There is no express bar made in the provisions of C. P. C. to debar the power of attorney to be examined as a witness on behalf of the parties to the proceedings.

(3.) THE provisions of Order XVIII of C. P. C. only regulate the procedure and manner of order of examination of the witness. As a rule, firstly the party to the proceedings has to examine himself. If for any valid reason it is not possible for the party to examine himself with the permission of the Court a witness on behalf of such party could be examined and out of term the party can examine himself, further. It is also not necessary in law that always the party to the proceedings should examine himself. The requirement of law insists only that the party who puts forth his case should prove the material facts set up. A party without examining himself can as well establish his case if possible by examining the witnesses who are competent to testify. However, in cases where there is onus placed on the party to discharge and if the facts required to be deposed are necessarily to be testified by the party in person, in such situation, however, such a party runs the risk of facing adverse inference for non-examination. Otherwise, it is also open for the party to give evidence through the power of attorney and such evidence would be a valid substituted evidence of the plaintiff. Ultimately, appreciation of the probative value of the evidence and competence of the person testified is a matter that is to be tested in the course of the cross-examination. Therefore, respectfully I am unable to agree with the view of the Rajasthan High Court cited above and I am inclined to follow the view of Gujarat High Court. In that view of the trial Court is liable to be set aside and the plaintiff is permitted to examine the power of attorney on her behalf.