SHAKUNTALA DEVI Vs. NATHU LAL JAIN

JUDGEMENT

(1.) Instant revision has been preferred by the plaintiff-petitioner impugning the order dated April 15, 1999 of the learned Additional Civil Judge (Junior Division) No. 5, Jaipur City whereby her application under Order 18, Rule 2 read with Order 26, Rule 1 and Section 151, CPC was rejected.

(2.) Brief resume of the facts is that the plaintiff-petitioner (for short the plaintiff) instituted a suit for perpetual injunction against the defendant-respondents (for short the defendants). The plaintiff on March 26, 1992 executed 'General Power of Attorney' in favour of Nand Kishore Saraf to take up all the proceedings on her behalf in the aforesaid suit. Nand Kishore Saraf thereafter got examined himself as P.W. 1 in the capacity of the plaintiff. Evidence of the defendants was closed on December 11, 1998 and the case was posted for final arguments. The plaintiff on January 6, 1999 moved an application under Order 18, Rule 2 read with Order 26, Rule 1 and Section 151, CPC to examine herself on commission on the ground that earlier she had not examined herself as a witness under the impression that examination of her attorney as a witness would suffice but in view of ratio of Ram Prasad v. Hari Narain, AIR 1998 Raj 185, her examination as a witness is necessary. The defendants opposed the application by filing reply. Learned Court below rejected the application as indicated hereinabove.

(3.) It was canvassed on behalf of the plaintiff that on the advise of the counsel the power of attorney holder Nand Kishore Saraf was examined as a party. The plaintiff had not examined herself as a witness under the impression that examination of power of attorney holder as a witness would suffice the purpose. But in view of settled legal position the plaintiff subsequently decided to examine herself as a witness and the Court below ought to have permitted her examination on commission. Reliance was placed on Khadi Kissan v. Thubra Kissan, AIR 1988 Orissa 55; Mani Dhal v. Padma Charan, AIR 1981 P and H 157 (sic); Alekh Pradhan v. Bhramar Pal, AIR 1978 Orissa 58, Wasudeo v. Jagan Nath, AIR 1986 Bombay 43.