Karnataka High Court
Smt. Sharadamma W/O Late Gangaiah vs Smt. Kenchamma W/O Late Gangaiah And ... on 8 August, 2006
Equivalent citations: AIR2007KANT17, AIR 2007 KARNATAKA 17, 2007 (2) ALJ 244 2007 (1) AIR BOM R 216, 2007 (1) AIR BOM R 216, 2007 (2) ALL LJ NOC 244, 2006 A I H C 3542, 2007 (1) ABR (NOC) 216 (KAR), 2006 (5) AIR KANT HCR 624, 2007 (2) ALJ (NOC) 244 (KAR.) = AIR 2007 KARNATAKA 17, 2006 (5) AIR KAR R 624
Author: D.V. Shylendra Kumar
Bench: D.V. Shylendra Kumar
ORDER D.V. Shylendra Kumar, J.
1. Writ petition by a person who is aggrieved by an order passed by the trial court on LA. No. 6 which the petitioner had filed in a pending suit praying for issue of directions by the court to the first respondent-plaintiff to either come and give evidence in person or allow the petitioner-applicant to cross-examine the plaintiff.
2. Such an application having been rejected in terms of the impugned order, the present writ petition.
3. The petitioner is the second defendant in original suit No. 152/1999 now pending on the file of the Addl Civil Judge (Jr. Dn.,] & JMFC, Kunigal [Copy at Annexure-A]. The suit by one Smt. Kenchamma claiming to be wife of late Gangaiah with several other wives of her husband and their children, as defendants is for claiming her share under the late Gangaiah.
4. It appears the first respondent-plaintiff had executed a power of attorney for the purpose of conduct of the suit. It is at this stage that the writ petitioner had come up with an application in I.A. No. 6 praying for issue of directions to the plaintiff in the suit to depose by herself or to permit the applicant to cross examine her. Such an application having been rejected in terms of the impugned order, the present writ petition.
5. Submission of Sri. Nagaraj, learned Counsel for the petitioner is that it is not open for the first respondent-plaintiff to lead evidence for her or to give evidence through a power of attorney; that such course of action has been held to be not possible in terms of the Judgment of the Supreme Court in the case of 'Janki Varhodeo Bhojwani and Anr. v. Indusind Bank Ltd. and Others reported in ILR 2005 KAR 729 and therefore submits that the order rejecting I.A. by the trial court is wrong; that it is in the teeth of the law laid down by the Supreme Court and hence liable to be set aside and the application ought to have been allowed.
6. The law as declared by the Supreme Court in JANKI VASHDEO BHOJWANTS case is to the effect that a person acting as a power of attorney who has been authorised to act on behalf of the Principal as the word figures in Order III Rules 1 and 2 of the Code of Civil Procedure can only be in terms of the authority i.e., instrument granting power and that it cannot amount to including deposing in place of the person authorised, but the deposition can only be in respect of the performance of the authorised acts.
7. The Supreme Court has further clarified that there cannot be any deposition by the power of attorney in respect of matters which are within the knowledge of the person authorising i.e., events within the personal knowledge of the person issuing the authorisation.
8. While the law as declared by the Supreme Court is undoubtedly binding on all courts, the contention urged is not precisely one that stems out of the legal position indicated. The decision of the Supreme Court indicates the limitations of a power of attorney holder and nothing beyond. By placing reliance on this authority, no one can compel the authoriser i.e., the plaintiff in the present situation to come and depose nor can seek for issue of such directions from the court to the plaintiff. It is for the plaintiff to make good the case in whatever manner the plaintiff deems fit and as permitted by law. A direction as sought for cannot be issued to compel the plaintiff to conduct her case in any particular manner.
9. It is not the duty of the court to direct the parties or compel the parties as to in what manner they should conduct their case before the court or also what quality of evidence they should place before the court But the duty of the court is only to appreciate the case in the proper perspective and on the basis of what is placed before the court Even with regard to the prayer for permitting the applicant to cross-examine the plaintiff, the prayer is misconceived as the question of cross-examination arises only when a witness has tendered evidence in chief-examination. Under Section 138 of the Indian Evidence Act, cross-examination follows chief-examination, but not without chief-examination. If then: is no chief- examination, there is no cross-examination. It is only a witness who is examined in chief who can be cross-examined. Therefore, a prayer for cross-examination of the plaintiff even when the plaintiff has not been examined in chief is ridiculous and not provided for under Section 138 of the Evidence Act The trial court has rightly rejected the application. No scope for interference with an order of this nature.
10. It is open to the petitioner to conduct her defence in a manner that furthers her case based on the law as declared by the Supreme Court But, that does not enable her to seek the court to compel the plaintiff also to conduct the case in a manner which the defendant No. 2 petitioner thinks is an appropriate manner.
11. Writ petition is rejected.