SHANTABAI GOVINDRAO GHORPADE Vs. INDUBAI RAGHUNATH CHARMORE

JUDGEMENT

(1.) THIS Second Appeal has been preferred by the original Defendant/ appellants herein, against the original plaintiff/ respondent herein, and thereby, challenged the judgment and decree dated 21/06/1991 passed in Regular Civil Appeal No. 190 of 1990, whereby, appellant-original defendant's appeal was allowed and the judgment and decree passed by the Trial Court in Regular Civil Suit no. 656 of 1987 dated 21/08/1990 was set aside, whereby it has been further directed to deliver the possession of the suit field to the respondent immediately and permanent injunction from interfering with the possession was also granted.

(2.) THIS Second Appeal was admitted on 19/07/1991 on the following question of law : "admit on the ground of validity of a Sale Deed executed in favour of the respondent. " Learned Advocate appearing for the appellant requested to agitate an additional question of law : Whether the learned Lower Appellate Court was justified in quashing and setting aside the judgment and decree passed by the Trial Court especially when the respondent/plaintiff did not enter the witness box to prove her case? The above additional question of law has been raised by civil Application No. 4811 of 2004 under the signature of the Advocate appearing for the appellant dated 23/07/2004. This matter was heard initially on 15/07/2004 and then on 16/ 07/2004. The learned Advocate appearing for the appellant contended that this being the substantial question of law, based on the existing pleading and/or undisputed position, be taken as an additional substantial question of law. None appeared for the respondent. This Civil Application remained unserved. We have gone through the evidence on the record, led by the parties. There is no dispute that one krishna led evidence on behalf of Indubai and not Indubai herself based on the General Power of Attorney. The said Krishna was cross-examined also. There was no objection raised of any sort before the Trial Judge while cross-examining and/or while allowing such General power of Attorney holder to lead evidence on behalf of the plaintiff. Thereafter, the suit of the original plaintiff was dismissed by order dated 21/08/1990. In the said proceedings, no issues were insisted or raised to that effect. We have gone through the Memo of Appeal filed by the original plaintiff. There was no cross-Appeal of the opponent therein. The Appellate court also, after considering the issues, as well as, grounds raised and after hearing both the parties, held that the respondent is entitled for possession of the suit field and permanem injunction and accordingly, judgment and decree dismissing the suit of the respondent was set aside as observed and permanent injunction has been granted.

(3.) THE Second Appeal was admitted only on the question, as referred above. No other ground or any question of law was raised at the relevant time. In my view, therefore, such pleading and/or alleged question of law, as not involved, cannot be allowed to be raised for the first time in the Second Appeal in the facts and circumstances of the case itself. The learned Advocate appearing for the appellant relied on AIR 1998 Raj. 185 (Ram Prasad vs. Hari Narayan) and thereby contended that in view of this judgment passed on Order HI, rule 2 of the Code of Civil Procedure, read with Section 118 of the Indian Evidence Act, the Power of Attorney holder is not entitled to appear as a witness for the party appointing him the Power of Attorney holder. Therefore, such Power of Attorney holder cannot appear as a witness on behalf of a party. In the present case, admittedly, the evidence was led by the power of Attorney holder. Therefore, relying on this decision, the learned Advocate contended that this question needs to be considered and the matter be heard accordingly. In the case of Ram Prasad (supra), an application was filed to allow the son of the plaintiff to appear as witness on his behalf through the General Power of Attorney. The said application was contested then and there only before the Trial Judge. The Trial Judge after considering the above position, rejected the same and, therefore. . Appeal was filed and the rejection order was maintained. In the present case, admittedly, there was no such objection raised at any point of time, ' respondent-plaintiff was allowed to lead evidence, cross-examination by the parties and accordingly, judgment was passed. There was no insistence for framing issues on that aspect. No ground or cross-Appeal was raised so far as that part is concerned. In the Second Appeal also, there was no such ground raised initially. Therefore, I am of the view there is no such substantial question of law involved, in the facts and circumstances of the case and cannot be allowed to be agitated for the first time in this Second Appeal. Therefore, the Civil application itself is rejected. Parties will suffer great injustice and hardship if such pleas are allowed to be raised in Second Appeal after lapse of more than 17 years. This plea itself is not sufficient to allow the Second Appeal. This second Appeal is decided on the following facts and reassessing, even otherwise.