Andhra HC (Pre-Telangana)
Lallita Tyagi vs M. Chandrakala And Ors. on 18 August, 2006
Equivalent citations: 2006(6)ALD740
ORDER C.Y. Somayajulu, J.
1. Revision petitioner filed the suit through her General Power of Attorney seeking cancellation of a sale deed and for other reliefs, initially against respondents 1 and 2. Subsequently third respondent was added as the third defendant. The General Power of Attorney of the revision petitioner was examined in part as a witness on her behalf. Meanwhile, respondents filed a petition under Rules 1 and 2 of Order III read with Section 151 CPC to eschew the evidence of the General Power of Attorney of the revision petitioner on the ground that he cannot depose on behalf of the revision petitioner, which was allowed by the order under revision. Hence, this revision.
2. The main contention of the learned Counsel for revision petitioner is that the only embargo placed on the General Power of Attorney giving evidence is in respect of the facts which are exclusively in the knowledge of the donor of the Power of Attorney but not with regard to the facts which are within his personal knowledge, and so a Power of Attorney also is a competent witness in view of Section 118 of the Evidence Act. It is his contention that since the question whether the evidence of a witness can be taken into consideration or not has to be decided at the time of disposal of the suit, Court cannot shut out the evidence of a person merely because he happens to be the General Power of Attorney of a party, because even a Power of Attorney can give evidence as a witness on behalf of a party. Relying on Janki Vashdeo Bhojwani v. Indusind Bank Ltd. , he contended that if a General Power of Attorney holder has rendered some 'acts' in pursuance of Power of Attorney he may depose, for the principal, in respect of such acts. Relying on Gangawa v. Arjunsa AIR 2001 Kar. 231, he contended that inasmuch as the CPC does not debar the Power of Attorney being examined as a witness on behalf of the parties to the proceedings, and since a party can even without examining himself as a witness establish his case by examining witnesses who are competent to testify, and would only run the risk of the Court drawing an adverse inference for non-examination of the party depending on the facts and circumstance of the case. Power of Attorney also is a competent witness. He also relied on Naseem Moorulaiah v. Abdul Salem , where it is held that the Court can draw an adverse inference if a competent witness is not examined by any of the parties in the suit without valid or justifiable ground, and that there is no need for any party to file a petition and seek permission of the Court to examine a particular witness in a case; and on Kailashi Devi v. Matadeen Agrawal , where it is held that Power of Attorney is a competent witness and is entitled to appear as such and his statements in the Court cannot be ignored and his evidence has to be evaluated as per his deposition before the Court and if the Court finds the evidence of such Power of Attorney does not inspire confidence, it may not rely of his evidence and that the Court has no jurisdiction to say that the evidence of such person shall not be read at all, and that the party alone should appear as a witness in support of his case, and contended that the order under revision eschewing the evidence of PW. 1 is unsustainable.
3. The contention of the learned Counsel for respondents is that respondents had to file the petition before the trial Court because the General Power of Attorney of the revision petitioner who has no locus standi to conduct the proceedings on behalf of the revision petitioner without appointing an advocate was conducting the proceedings on behalf of the revision petitioner and as the Power of Attorney of revision petitioner cannot give evidence as a substitute for the revision petitioner-respondent has to file the petition. Relying on Hari Om Rajender Kumar v. Chief Rationing Officer of Civil Supplies A.P. , he contended that the Power of Attorney of the revision petitioner, who is not an advocate, cannot plead or argue on the strength of the Power of Attorney in view of Section 32 of the Advocates Act, and on K. Bharathi v. Labour Officer , where it is held that the Power of Attorney holder of a party cannot appear as a witness in the capacity of that party on behalf of the donor party and that the party to a suit cannot stay back without entering into witness box and subjecting himself to cross-examination. He also relied on Ram Prasad v. Hari Narain , where it is held that Power of Attorney is not entitled to appear as a witness for a party appointing him as Power of Attorney holder and can appear only as a witness in his personal capacity and whatever knowledge he has about the case, he can state those facts on oath. He also relied on the observations in Pars 12 of Janki Vashdeo Bhojwani's case (supra), reading-
Order III Rules 1 and 2 CPC, empowers the holder of Power of Attorney to "act" on behalf of the principal. In our view the word "acts" employed in Order III Rules 1 and 2 CPC, confine only in respect of "acts" done by the Power of Attorney holder in exercise of power granted by the instrument. The term "acts" would not include deposing in place and instead of the principal. In other words, if the Power of Attorney holder has rendered some "acts" in pursuance to Power of Attorney, he may depose for the principal in respect of such acts, but he cannot depose for the principal for the acts done by the principal and not by him. 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.
and on S. Padmavathamma v. S. Sudha Rani , where it is held that a General Power of Attorney holder of a party in a suit can give evidence deposing to the facts which are only within his personal knowledge but cannot speak about the facts within the exclusive knowledge of his principal and contended that the well reasoned order of the trial Court needs no interference.
4. In reply, the contention of the learned Counsel for revision petitioner is that inasmuch as the Counsel for revision petitioner reported no instructions, and since the General Power of Attorney of the revision petitioner is the father of the revision petitioner and has personal knowledge about all the facts in issue, he sought permission to appear on behalf of the revision petitioner and that petition is still pending and since this petition relates to the General Power of Attorney of the revision petitioner giving evidence as a witness and has nothing to do with his pleading for the revision petitioner, the order under revision is not sustainable.
5. The prayer in the petition filed by the respondents is-
'to reject the evidence of the GPA holder B.N.S. Tyagi giving the evidence on behalf of the plaintiff.
So, the petition filed by the respondents is not for restraining the General Power of Attorney of the revision petitioner pleading and arguing the case on behalf of revision petitioner. For that reason and since the learned Counsel for the revision petitioner stated that a petition filed by the revision petitioner seeking permission of the Court to permit her General Power of Attorney to appear and argue the case on her behalf is pending before the trial Court, I do not wish to give a finding on the question whether the General Power of Attorney of the revision petitioner can 'act' and 'plead' on behalf of the revision petitioner without the assistance of an advocate. So the only point for consideration in this revision is whether the order of the trial Court eschewing the evidence of the General Power of Attorney on the ground that he is not competent to give evidence as a party and can give evidence only after the party gives evidence is sustainable or not?
6. As rightly contended by the learned Counsel for revision petitioner there is no mandate either in CPC or in the Evidence Act that a party to the suit only should depose to prove his case or should examine himself as a witness for giving a finding in his favour. So, Court has no power to direct a party to the suit give evidence. Since Rule 3A of Order XVIII CPC reads-
Where a party himself wishes to appear as" a witness, he shall so appear before any other witness on his behalf has been examined, unless the Court, for reasons to be recorded, permits him to appear as his own witness at a later stage.
it is clear that a party to the suit has an option to give evidence or not. But if the party wishes to give evidence he should give evidence in the first instance. The Court can in appropriate cases, by recording reasons for its decision, permit the party to give evidence at a later stage also.
7. As held in Gangavva's case (supra), a party can even without examining himself establish his case by examining witnesses who are competent to testify. Even in cases where the party who has the knowledge of facts of the case, fails to go into the witness box, depending on the facts and circumstances of the case, the Court may only draw an adverse inference against him for his failure to give evidence. A witness who has personal knowledge about the facts in issue in the suit he is a competent witness to speak about the facts in issue, which are within his personal knowledge. If the evidence of a witness is a hearsay evidence, the opposite party can either raise an objection on the ground that such evidence is inadmissible in evidence or can at the stage of arguments contend that such hearsay evidence of such witness cannot be relied on to give a finding on the facts in issue. The Court cannot during the course of examination of a witness, give a finding whether he is a competent witness or not to give evidence on the facts in issue, till he falls in category of witnesses incompetent to testify as per Section 118 of the Evidence Act which reads-
All persons shall be competent to testify unless the Court considers that they are prevented from understanding the questions put to them, or from giving rational answers to those questions, by tender years, extreme old age, disease whether of body or mind, or any other cause of the same kind.
Explanation :-A lunatic is not incompetent to testily, unless he is prevented by his lunacy from understanding the questions put to him and giving rational answers to them.
In view thereof, question whether the evidence of a General Power of Attorney can be relied on or not for deciding the facts in issue can be decided only at the time of disposal of the case but not at the stage of his examination.
8. The ratio in the decisions relied on by the Counsel for both sides is that the General Power of Attorney of a party can speak about the facts which are within his knowledge, but he cannot be treated as a substitute for the party who is the donor of the Power of Attorney. If both the General Power of Attorney and the party have knowledge about the facts in issue of the case both are competent witnesses. In such cases, if the party does not go into the witness box as a witness, question whether an adverse inference, for his not being examined as a witness or not depends on the facts and circumstances of each case.
9. Since the order under revision did not state that the General Power of Attorney of the revision petitioner is being discharged for the reasons mentioned under Section 118 of the Evidence Act, and since the petition of the respondents was allowed only on the ground that the General Power of Attorney is not competent to represent the matter on behalf of the plaintiff and an assumption that he is being examined as a substitute for the revision petitioner, it is not sustainable because question whether the General Power of Attorney of the revision petitioner can be permitted to represent the revision petitioner or not is yet to be decided by the trial Court, and is said to be still pending in the trial Court. Therefore, the order of the trial Court eschewing the evidence of the General Power of Attorney of the revision petitioner is liable to be and hence is set aside. The trial Court should record the evidence of the General Power of Attorney of the revision petitioner and can decide the value of his evidence at the time of judgment.
10. Hence, the revision petition is allowed and the impugned order is set aside. Parties are directed to bear their own costs in this revision. The trial Court shall dispose of the suit as expeditiously as possible, at any rate within a period of six months from the date of receipt of a copy of this order.