NARMADA PRASAD Vs. BEDILAL BURMAN

JUDGEMENT

(1.) This petition filed under Article 227 of the Constitution challenges the order dated 28-11-2017, whereby IA-02-2017 dated 4-10-2017 filed by the petitioner/defendant was rejected by the Court below.

(2.) The admitted facts between the parties are that in the instant civil suit the petitioner/defendant filed a power of attorney in favour of his son and apprised the Court below in specific that his son will enter the witness-box on his behalf. In turn, the son, namely, Jitendra Burman entered the witness-box, deposed his statement and was cross-examined. The petitioner/defendant introduced his son as power of attorney holder on the ground that he is suffering from an aliment of forgetfulness because of which his memory was not in order and, therefore, his son will depose on behalf of the defendant. Thereafter, the defendant himself filed an application dated 4-10-2017 (Annexure-P/6) seeking permission to lead evidence. The same was opposed by the plaintiff by filing reply dated 7-11-2017. The Court below rejected the said application of petitioner/defendant by impugned order dated 28-11-2017.

(3.) Mr. Verma, learned senior counsel criticized this order by contending that under Order 3, Rules 1 and 2, Civil Procedure Code, the power of attorney holder has a limited right of leading evidence/deposition. By taking this Court to the judgment of Supreme Court reported in 2005(1) M.P.L.J. (S.C.) 421 : AIR 2005 SC 439, Janki Vashdeo Bhojwani v. Indusind Bank Ltd. and other, it is argued that there was a cleavage of opinion between judgment of two High Courts on the question as to whether power of attorney holder can lead evidence on behalf of principal and to what extent. The Bombay High Court and Rajasthan High Court have taken divergent views and these judgments/matters were considered by Apex Court in the case of Janki Vashdeo Bhojwani (supra). It is urged that curtains are finally drawn on this issue by the Apex Court by holding that power of attorney holder does not have the personal knowledge of the matter of the appellant and, therefore, he can neither depose on his personal knowledge nor he can be cross-examined on those facts which are to the personal knowledge of the principal. Similarly, he cannot depose for the principal in respect of the matter which only the principal can have a personal knowledge and in respect of which the principal is entitled to be cross-examined. Mr. Verma, learned senior counsel urged that the view taken by Rajasthan High Court in the case of Shambhu Dutt Shastri v. State of Rajasthan, reported in 1986 (2) WLL 713 was held to be correct law in Janki Vashdeo Bhojwani (supra) and this ratio decidendi was followed in (2013) 12 SCC 64, S. Kesari Hanuman Goud v. Anjum Jehan It is submitted that in view of settled legal position, the Court below has erred in disallowing the permission to lead evidence to the petitioner/defendant. Mr. Verma, learned senior counsel further urged that defendant has not closed his evidence and if defendant is permitted to depose his statement, it will not cause any prejudice to the plaintiff. Moreso, after recording of evidence of defendant, the plaintiff can very well take advantage of both the statements recorded on behalf of the defendant.