RAJNI TIWARI Vs. BHAGYAWATI BAI

JUDGEMENT

(1.) In this petition under Article 227 of the Constitution of India the petitioner has challenged the validity of the order dated 26-8-2010 passed by the Trial Court by which the Trial Court has held that the husband of the petitioner though is competent witness under Section 120 of the Indian Evidence Act, yet he cannot be permitted to exhibit and prove the document filed by the wife. The facts, leading to filing of the writ petition, briefly stated, are that the petitioner has filed a suit seeking the relief of permanent injunction. The petitioner filed certain documents in support of her claim before the Trial Court. The respondent defendant filed the written statement and contested the claim of the petitioner. The petitioner filed the examination-in-chief of her husband in the form of affidavit. When the husband of the petitioner was being cross-examined he wanted to exhibit certain documents. Thereupon, the Counsel for respondent raised an objection that the petitioner cannot exhibit or prove the document. The Trial Court in view of the objection of the respondent held that though the husband of the petitioner is competent witness under Section 120 of the Indian Evidence Act, 1872 yet he has not appeared before Court as attorney of the plaintiff and, therefore, he cannot be permitted to exhibit the document.

(2.) Learned Counsel for the appellant submitted that there is no provision of law which debars a competent witness to exhibit a document or to prove the document. Learned Counsel for the petitioner has drawn attention of this Court to Section 1-A of the Powers of Attorney Act, 1882 and submitted that power of attorney includes any instruments empowering a specified person to act for and in the name of the person executing it. Therefore, the power of attorney is not required to prove any document. It is also submitted that under Order 3 Rule 1 of the Code of Civil Procedure an appearance, application or act in or to any Court, required or authorised by law to be made or done by a party in such Court, may except where otherwise expressly provided by any law be made or done by the party in person or by his recognised agent or by a pleader appearing, applying or acting as the case may be on his behalf.

(3.) I have considered the submissions made by learned Counsel for the petitioner. Section 120 of the Indian Evidence Act reads as under:-