KAILASH DEVI Vs. MATADEEN AGRAWAL

JUDGEMENT

(1.) This revision petition has been filed by the plaintiff-Kailashi Devi. The plaintiff had filed a suit for dissolution of the partnership firm against the respondent- defendants. The suit was filed by Rishi Jain in the capacity of power of attorney of Kailashi Devi, Rishi Jain had examined himself as plaintiff witness No. 1. Objection was raised to the effect that he is not the original plaintiff and, therefore, Rishi Jain cannot lead evidence in place of the plaintiff. His objection was accepted vide Order dated 30-5-2000 and the trial Court had declined to read the statement of Rishi Jain in place of Kailashi Devi and ordered that Kailashi Devi should be present in the Court to lead evidence. Against the order dated 30-5-2000 the present revision petition has been filed.

(2.) It is the contention that the original suit was filed by Kailashi Devi through Rishi Jain, Power of Attorney. It is further submitted that the authority, reported in 1998 DNJ (Raj) 41 : (AIR 1998 Raj 185), Ram Prasad v. Hari Narain, for the aforesaid proposition, is not applicable in the facts of the present case and the material irregularity has been committed by the trial Court by ordering that the evidence of Rishi Jain shall not be read at all. power of attorney as executed by Kailashi Devi had been placed on record. The only point involved in the present case is whether in the case the plaintiff does not appear as his/her witness but produces the evidence or through power of attorney, can it be said that the evidence of such Power of Attorney is no evidence in place of the plaintiff or that non-appearance of the plaintiff itself shall tantamount to taking adverse inference against such party.

(3.) Reliance is placed on the decision of Bombay High Court in the case of Humberto Luis v. Floriano Armando Luis, (2000) 2 CLT 455 : (2000 AIHC 1572) and Parikh Amratlal Ramanlal Trustee and Administrator of Sanskrit Pathshala Institution v. Rami Mafatlal Girdharilal, AIR 1983 NOC 108 (Guj).