RASOOL MOHAMMAD (DEAD) THROUGH LRS. SMT MUMTAJUNNISHA W/O ABDUL SAMAD Vs. ANEES KHAN S/O LATE IQBAL MOHAMMAD

JUDGEMENT

(1.) With the consent of the parties, the matter is finally heard.

(2.) The present petition has been filed challenging the order dtd. 7/11/2017 passed by the First Civil Judge Class-I, Varaseoni District Balaghat, whereby an application filed by the petitioner for permitting the Power of Attorney holder to lead evidence and continue with the Civil Suit has been rejected.

(3.) It is alleged that Late Shri Rasool Mohammad filed a civil suit for declaration and permanent injunction before the learned Court below. The respondent/defendants have filed a written statement before the Trial Court and the issues were framed by the learned Trial Court. During the pendency of the civil suit Rasool Mohammad expired and legal representatives i.e. as wife was added as legal heirs. The plaintiff petitioner has executed a Power of Attorney on 1/9/2016 and authorised Zaheer Qureshi to proceed on behalf of her in the said civil suit. The affidavit under Order 18 Rule 4 of Code of Civil Procedure was filed by the plaintiff. The aforesaid affidavit was filed by Zaheer Qureshi in the capacity of Power of Attorney holder for the plaintiff. During the proceedings, defendants/respondents have raised an objection that the Power of Attorney holder is not competent to exhibit the documents in his behalf. The learned Trial Court vide its order dtd. 7/11/2017 has allowed the objection of the defendants and has not permitted Zaheer Qureshi to produce evidence on behalf of the plaintiff. It is argued that the learned Trial Court has failed to consider the aspect that plaintiff Smt. Mumtajunnisha is a widow lady a 'Pardanasheen Mahila', therefore, she is not in a position to come to the Court for leading evidence and, therefore, she has executed a Power of Attorney dtd. 1/9/2016 and authorised Zaheer Qureshi to proceed with the Civil Suit on her behalf. It is alleged that the provisions of Sec. 120 of the Evidence Act and Sec. 1(A) of Power of Attorney Act, 1882 has not been taken into consideration by the learned Trial Court. As the Power of Attorney holder is competent to adduce evidence on behalf of plaintiff, if it is proved that he is aware of all the facts and circumstances of the case. It is alleged that there is a specific averments in the Power of Attorney that Zaheer Qureshi is aware of all the facts and circumstances of the case as he used to regularly visit the Courts and the laywers along with the original plaintiff, therefore, he could lead proper evidence before the learned Trial Court on behalf of the plaintiff. In fact, he is in a better position to conduct the civil suit on behalf of the plaintiff in the capacity of Power of Attorney holder as the plaintiff being the legal representatives, is a 'Pardanasheen Mahila'.