Karnataka High Court
Smt. Asha Narayan Uchil vs Mr. Prakash Kumar Uchil on 6 August, 2018
Equivalent citations: AIRONLINE 2018 KAR 676, 2018 (4) AKR 679, (2019) 1 ICC 846
Author: S G Pandit
Bench: S.G. Pandit
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 6TH DAY OF AUGUST, 2018
BEFORE
THE HON' BLE MR. JUSTICE S.G. PANDIT
WRIT PETITION No.47068 /2014 (GM-CPC)
BETWEEN:
SMT. ASHA NARAYAN UCHIL
D/O. SRI. LATE K.B. UCHIL,
AGED 66 YEARS,
R/AT. "PUSHPA VIHAR", KOTEKAR POST,
SOMESHWARA VILLAGE,
MANGALORE-575 001. ... PETITIONER
(BY SRI.MANMOHAN.P.N, ADV.)
AND:
MR. PRAKASH KUMAR UCHIL
S/O. SRI. LATE K.B. UCHIL,
AGED 60 YEARS,
R/AT. "PUSHPA VIHAR", KOTEKAR POST,
SOMESHWARA VILLAGE, MANGALORE TALUK-575 001.
PRESENTLY R/AT NO.1003, MANGIUM M-2,
ADHIRAJ GARDENS, PLOT NO.32,
SECTOR 5, KARGHAR, NAVI MUMBAI,
MAHARASHTRA-410 210. ... RESPONDENT
(BY SRI.G.RAVISHANKAR SHASTRI, ADV.)
********
THIS WRIT PETITION IS FILED UNDER ARTICLE 227 OF
THE CONSTITUTION OF INDIA PRAYING TO QUASH THE ORDER
DATED 5.4.2014 PASSED ON MEMO DATED 24.3.2014 FILED BY
THE PETITIONER / DEFENDANT IN O.S.NO.61/2012 BY THE
2
COURT OF THE I ADDITIONAL CIVIL JUDGE , MANGALORE
VIDE ANNEXURE-D AND CONSEQUENTLY ALLOW THE MEMO
DATED 24.3.2014 FILED BY THE PETITIONER.
THIS WRIT PETITION COMING ON FOR PRELIMINARY
HEARING IN 'B' GROUP THIS DAY, THE COURT MADE THE
FOLLOWING:-
ORDER
The petitioner being aggrieved by the order dated 5.4.2014 passed on memo dated 24.03.2014 in O.S.No.61/2012 on the file of I Additional Civil Judge Mangaluru, is before this Court under Article 227.
2. The petitioner is defendant and respondent is plaintiff in O.S.No.61/2012 filed for a judgment and decree for partition of the plaint schedule property and for accounting of income from the suit schedule property and for payment.
3. When the matter stood at the stage of evidence, the defendant filed a memo dated 24.03.2014 indicating the Court that the defendant intends to examine her husband as DW.1 under Section 120 of the Indian Evidence Act, 1872 (for short 'the Act'). The trial Court 3 by its order dated 5.4.2014 rejected the memo observing that husband of the defendant can invoke Order III Rule 2 of CPC and file power of attorney and to depose on her behalf. The said order is impugned in the present writ petition.
4. Heard the learned counsel for the petitioner and learned counsel for the respondent and perused the writ papers.
5. Learned counsel for the petitioner submits that the trial Court is not right in rejecting the memo by observing that the husband of defendant can invoke Order III Rule 2 of CPC and to file Power of Attorney to depose before the Court. Counsel for the petitioner further submits that the defendant is deaf and dumb, she is not able to hear and talk. Petitioner filed memo dated 24.03.2014 to examine her husband as DW.1. Learned counsel referring to Section 120 of the Act submits that in all civil proceedings husband and wife 4 or spouse of any party to the suit shall be competent witness, there is no need to file power of attorney, in case of husband deposing on behalf of wife. Order III Rule 2 of CPC will not apply, when husband or wife are examined themselves as witnesses in a suit. Learned counsel for the petitioner relies upon a decision of High Court of MP in the case of RAJNI TIWARI Vs. BHAGYAWATI BAI reported in LAWS(MPH) 2012-2-38 and MAYIL TRADERS Vs. THYAGARAJA reported in 2011 (6) CTC 747 and in the case of IBRAHIM FARUKMIYA KARAJGI Vs. KASIM KHAN reported in LAWS(KAR)- 2002- 10-38 to contend that under Section 120 of the Act, there is no distinction between the party and witness.
6. Per contra, learned counsel for the respondent submits that the husband of the defendant is not competent person to depose in a suit, particularly, with regard to the Will relied upon by the defendant in her written statement. Further he submits that Section 119 5 of the Act provides for the witness, who is unable to speak, to give his evidence.
7. The suit is one for partition. There is no dispute that the defendant is deaf and dumb. The defendant filed memo dated 24.03.2014 to indicate that she intends to examine her husband as DW.1 under Section 120 of the Act, as the husband of the defendant is competent to give evidence. Section 120 of the Act reads as follows :-
"120. Parties to civil suit, and their wives or husbands. Husband or wife of person under criminal trial. - In all civil proceedings the parties to the suit, and the husband or wife of any party to the suit, shall be competent witnesses. In criminal proceedings against any person, the husband or wife of such person respectively, shall be a competent witness."
8. The above provision makes it clear that in all civil proceedings, the parties to the suit whether husband or 6 wife of any party to the suit shall be competent witness. In the case on hand, as the defendant is unable to hear and speak, she intends to examine her husband as DW.1 in the suit. The Madhya Pradesh High Court in the case of RAJNI TIWARI Vs. BHAGYAWATI BHAI reported in LAWS(MPH) 2012-2-38 at paragraph 4 has held as follows :-
"4. THUS, if all the provisions referred to above are read conjointly, it is apparent that there is no prohibition in law to the effect that a competent witness cannot be permitted to exhibit the document. Under Section 120 of the Indian Evidence Act, 1872 the husband of a party to the suit is competent witness, therefore, he is entitled to depose about the facts about which he or his wife has the knowledge. The husband of the petitioner being the competent witness for the wife can also be permitted to exhibit the document and there is no need to execute the power of attorney. However, the question of proof of a 7 document is altogether different from the question exhibiting a document"
It is held that the husband of the petitioner is competent witness for wife and there is no necessity to execute power of attorney. Further in the case of MAYIL TRADERS Vs. THYAGARAJAN reported in 2011(6) CTC 747 paragraphs 52 and 54 reads as follows :-
"52. It is pertinent to note here that the learned Trial Judge has found that the Partner-Vedhambal has not chosen to tender evidence, but the examination of her husband as PW1 is sufficient to infer that the Suit is not legally acceptable. In this regard, the learned Counsel for the Appellant would submit that the learned Trial Court had failed to note that in Civil actions it was not necessary for the Plaintiff to enter into witness box and that any person, who was conversant with the facts of the case could be permitted to adduce the evidence. He would 8 further submit that the partnership business was commenced by Padmanabhan, the father of P.W.1 Varadarajan and he had been looking after the affairs of the business and that he was competent to depose on behalf of his wife, who was one of the partners of the firm. In support of his contention, the learned Counsel has taken the assistance of Section 118 & 120 of the Indian Evidence Act and maintained that as contemplated under Sections 118 & 120 of the Indian Evidence Act in all Civil Proceedings, the parties to the Suit i.e., either the husband or the wife could be competent witness and therefore, PW 1, who is the husband of the Partner-Vedambal was a competent witness to speak on behalf of his wife."
53. ...xxxx......xxxx...
54. From the language of Section 120, it is palpable that in all civil proceedings, either the husband or wife is competent to tender evidence. Therefore, the findings of the Trial Court seems to be extraneous."
9
9. From the above decisions, it is clear that wife or husband as the case may be, are competent witness before the Court in all civil proceedings. In the case on hand also, it is a case where the husband is a competent witness to adduce evidence on behalf of his wife. With regard to the contention of the respondent - plaintiff that Section 119 of the Act provides procedure for giving evidence by a person, who is unable to speak need not be gone into in the present case and without going into that question, it could be said that under Section 120 of the Act, the husband could give evidence on behalf of wife. The trial Court committed an error in observing that the husband of defendant can invoke order III Rule 2 of CPC and can depose on her behalf. In view of Section 120 of the Act, Order III Rule 2 of CPC will have no application on the facts of the present case. Order III Rule 2 of CPC speaks of about recognized agents of parties by whom such actions and acts may 10 be performed. But in the case of husband and wife, there is no need to act as agents as contemplated under Order III Rule 2 of CPC.
10. Therefore, the observation of the trial Court that the husband to depose before the Court should invoke Order III Rule 2 of CPC and file power of attorney on behalf of the defendant, is wholly erroneous and the same is liable to be set aside.
11. Accordingly, the writ petition is allowed. The order dated 5.4.2014 in O.S.No.61/2012 is set aside and memo dated 24.3.2014 is allowed permitting the husband to adduce evidence on behalf of his wife.
Sd/-
JUDGE NG* CT:SK