HUSSAIN MAKTUMHUSSAIN Vs. MEHABOOBSAB

JUDGEMENT

(1.) Admittedly the plaintiff and 2nd defendant are sons of Maktumhussain @ Babu Mulla. The 1st defendant is the widow of said Maktumhussain @ Babu Mulla and mother of plaintiff and 2nd defendant. 3rd defendant is sister of 2nd defendant and 4th defendant is son of 2nd defendant. In the said suit a power of attorney was granted by the plaintiff in favour of his son for adducing evidence. It is seen that the said power of attorney is executed by the plaintiff in favour of his son after pleadings are complete and issues are framed in the said suit. Pursuant to the power of attorney given in his favour, the plaintiff's son got examined himself as PW. 1 by filing his evidence by way of affidavit.

(2.) At the stage of cross examination of PW. 1, the application in I.A. No. 13 was filed by the 2nd defendant under Section 151 of CPC seeking to reject the evidence of PW. 1 which was filed in the form of affidavit as power of attorney holder of plaintiff. The said application was opposed by the plaintiff and subsequently the application in I.A. no. 13 came to be dismissed by order dated 4.6.2014 which is impugned in this Writ Petition.

(3.) THE contention of the petitioner herein, who is 2nd defendant before the Court below is that the plaintiff could not have granted power in favour of his son to adduce evidence in his place. He could have examined him independently to adduce evidence in support of his case, but not as a substitute, for the reason that several allegations are made by him against the defendant with reference to the family settlement and other documents claiming that they are all done by the 2nd defendant with fraudulent intention. The contention of the 2nd defendant is that when there is allegation of fraudulent intention against him by the plaintiff, the evidence will have to be rendered by the plaintiff himself and not through the power of attorney who could not have had any personal knowledge in that matter. It is also contended that regarding other acts which are said to have committed by the 2nd defendant with reference to some of the properties which are sought to be declared as null and void, the plaintiff should adduce evidence independently not through the power of attorney holder.