ASHOK JAIN Vs. RUCHITA AGNIHOTRI AND OTHERS

JUDGEMENT

(1.) The petitioner has knocked the door of this Court by way of filing the present petition under Article 227 of the Constitution of India challenging the order dated 23/02/2018 passed by the Second Civil Judge Class-II, Rajnagar, District Chhatarpur in civil suit no. 40-A/2016 by which the application filed by the petitioner raising an objection for tendering of evidence by husband of defendant no.1 on the strength of power of attorney has been rejected.

(2.) The facts of the case, in narrow compass, are that the petitioner has filed a civil suit for declaration as well as the permanent injunction. During pendency of the suit the trial Court had appointed a Commission vide order dated 8/05/2017. Pursuant to the order of issuance of writ of commission, the Commissioner has submitted a spot inspection report however, the Commissioner did not appear for cross examination before the trial Court therefore, the petitioner has filed an application under Order 6, Rule 10 of the CPC for issuance of warrant to ensure presence of the Commissioner. The plaintiff, thereafter, filed an application under Order 6, Rule 17 of CPC proposing amendment in the plaint which was based on subsequent events. Petitioner filed an application under Order 14, Rule 5 of CPC in which the petitioner has proposed the additional issue which was required to decide the suit. The trial Court vide order dated 23/08/2017 has rejected all the three applications. Against the rejection of these applications the petitioner has filed the three writ petitions which were disposed of by this Court. The defendant no.1 thereafter filed the written statement alongwith the counter claim. At the time of recording the evidence, the husband of respondent no.1 entered into the witness box on which the objection has been taken by the plaintiff that the husband of the defendant no.1 is not competent to give the evidence on behalf of defendant no.1 however, the said objection has been turned down by the trial Court vide order dated 23/02/2018. Being aggrieved by the said order, the petitioner has filed the present petition.

(3.) Learned counsel for the petitioner argues that the impugned order passed by the trial Court is illegal, arbitrary and erroneous. He submits that the husband of the defendant no.1 is not competent to give evidence on her behalf. He further submits that the defendant no.1 has not produced the power of attorney on record as there is serious dispute of its genuineness and admissibility in evidence. It is submitted that the trial Court could not have permitted the respondent no.1 to tender the evidence on her behalf and the same cannot be read as evidence of defendant no.1. He further relied on the judgment passed by the Apex Court in the case of Janki Vashdeo Bhojwani and another v. Indusind Bank Ltd and others reported in (2005) 2 SCC 217 as well as the order passed by this Court in the case of Smt. Samta Sanghi and another v. V.G. Siddharth and another passed in W.P. No. 3261/2016 decided on 29/11/2016.