PRISM ENTERPRISES Vs. STANDARD ENGINEERING

JUDGEMENT

(1.) Heard the arguments of Sri R.M. Kulkarni, learned Counsel appearing for the petitioner and Sri Shreevatsa Hegde, learned Counsel appearing for the respondent-plaintiff. Perused the impugned order. Respondent-plaintiff had instituted a suit for ejectment of the petitioner-defendant from the suit schedule premises on various grounds. Plaint came to be presented by one of the partners of the plaintiff-firm and defendant on service of suit summons, appeared, filed written statement and contested the matter. When matter was set said down for evidence, plaintiff has filed an application under Order 3, Rules 1 and 2 read with Section 151 of Civil Procedure Code, 1908 seeking permission of the Court to appear through power of attorney holder and tender evidence in the matter. Said application came to be resisted by petitioner-defendant by filing statement of objections and contending inter alia that power of attorney holder does not have personal knowledge about the facts and in order to avoid test of cross-examination, he has devised the method of authorising the power of attorney holder to tender evidence. It was also contended when plaintiff was attending all other Courts, where several litigations are pending, including the criminal proceedings he is capable of attending the Court adjudicating the suit in question and as such, he ought to tender his evidence personally and cannot authorise the power of attorney to tender evidence.

(2.) Trial Court on appreciation of rival contentions by impugned order has allowed the application and permitted the plaintiff to tender evidence through power of attorney on the ground that if the power of attorney holder fails to answer the questions that would be put to him in the witness-box, plaintiff would not succeed in suit and in criminal proceedings, accused will have to be personally present and that would not be a ground to reject the prayer of plaintiff, as such, it has allowed the application.

(3.) Reiterating the objections filed before Trial Court, Sri R.M. Kulkarni would contend that application in question which was filed before Trial Court was by the power of attorney holder himself and when the partners of plaintiff firm had authorised the Principal to file suit and conduct the case and tender evidence, he could not have sub-delegated his power to the power of attorney holder and as such, non-consideration of this vital aspect has resulted in great prejudice to defendant. He would also elaborate his submission by contending that Trial Court has not considered the fact that power of attorney holder is not personally aware of the facts and circumstances of the case and in the absence of his personal knowledge relating to the facts of the case, he cannot tender the evidence. In support of his contention, he has relied upon the judgment of Hon'ble Apex Court in the case of A.C. Narayanan v State of Maharashtra in Criminal Appeal No. 73 of 2007.