RAMESHCHANDRA Vs. RAJESH KUMAR SHARMA

JUDGEMENT

(1.) With the consent of the parties the matter is finally heard. The present petition has been filed assailing the order dtd. 16/9/2019, passed in RCS No.41A/2018, by First Civil Judge Class-II, Pipariya, District Hoshangabad; whereby, the application filed by the petitioners under Order 3 Rule 1 of CPC seeking permission to record the evidence through his registered Power of Attorney i.e. his son Shusheel Kumar Sharma was rejected.

(2.) It is submitted that the petitioners/plaintiffs filed a civil suit for declaration of title and permanent injunction with respect to the suit property bearing Khasra No.96, Area being 8.36 Acres against the respondent no.1, which is a joint property of a Hindu Undivided Family, but the Survey No.96/1, Area being 1.529 Hectares out of the said property has wrongly been registered in the name of the respondent no.1/defendant no.1. He has also sought the relief of permanent injunction to restrain the respondent no.1 to alienate or transfer the said property in some other names. On summons being issued, the respondent no.1/defendant no.1 appeared in the civil suit and filed the written statement denying all the averments and has further taken a plea that the plaint is not being filed within limitation and prayed for dismissal of the civil suit. During the pendency of the civil suit, the plaintiff no.1 Rameshchandra executed a registered Power of Attorney in favour of his son Shusheel Kumar Sharma pointing out that he is aware of all the aspects of the disputed land and the dispute going on between the parties and as he is his son; therefore, he is in a position to depose before the learned trial Court. On the basis of such registered Power of Attorney, an application under Order 3 Rule 1 of CPC has been filed before the trial Court praying for conducting the proceedings of the Civil Suit to the Power of Attorney holder i.e. his son and further prayed to record the evidence through his Power of Attorney to know everything about the dispute and the disputed property.

(3.) It is submitted that it is a registered Power of Attorney and the son of the petitioner/plaintiff is the Power of Attorney holder, who is well aware of all the aspects of the case; therefore, he can very well depose before the trial Court in place of the plaintiff no.1. Placing reliance upon the judgment passed by the Coordinate Bench in the case of Bashir Vs. Smt. Hussain Bano reported in 2005 (2) M.P.L.J. 230; wherein, it was observed that the Power of Attorney holder a member of family can depose on her behalf regarding her bonafide need. It was a case of eviction and the permission was granted to the Power of Attorney to record the evidence on behalf of principal plaintiff. Placing further reliance upon the judgment passed in the case of Vimla Devi Vs. Dulichand reported in 1994 (1) MPJR 144; wherein, it was held that the husband being the Power of Attorney holder has appeared and deposed in place of his wife before the trial Court was accepted by the learned trial Court and it was observed that the non examination of the plaintiff was not fatal for the case. It is argued that as the son is aware of all the facts and circumstances of the present case and also well aware of the disputed property; therefore, he can very well depose in place of the original plaintiff, who is aged about 80 years and is very weak to approach the Court for deposition. Therefore, the order passed by the learned trial Court rejecting the application is per se illegal.