Madras High Court
Nathu Banu Asha vs The Lakshmi Vilas Bank Ltd on 12 February, 2009
Author: G.Rajasuria
Bench: G.Rajasuria
IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED:12.02.2009 Coram: THE HONOURABLE MR.JUSTICE G.RAJASURIA C.R.P.(PD)No.3602 of 2008 and M.P.No.1 of 2008 Nathu Banu Asha ... Petitioner vs. The Lakshmi Vilas Bank Ltd. Pallipalayam rep. by its Manager and Power of Attorney Agent Thiruchengode Taluk Namakkal District. ... Respondent Civil revision petition filed under Article 227 of the Constitution of India against the fair and decreetal order of the First Additional Subordinate Judge's Court at Erode, dated 20.08.2008 in I.A.No.428 of 2008 in O.S.No.844 of 2002 inter alia. For Petitioner : Mr.P.Valliappan For Respondent : Mr.A.V.Radhakrishnan O R D E R
Inveighing the order dated 20.08.2008, passed by the learned First Additional Subordinate Judge's Court at Erode, in I.A.No.428 of 2008 in O.S.No.844 of 2002 inter alia, this civil revision petition is focussed.
2. Heard both sides.
3. The nut shell facts which are absolutely necessary and germane for the disposal of this revision petition would run thus:
The respondent Bank/plaintiff filed the suit O.S.No.844 of 2002 through its Manager and Power Agent. The revision petitioner entered appearance and filed written statement, whereupon trial commenced. On the plaintiff side, one witness was examined as P.W.1 and was also cross examined by the revision petitioner. Thereafter, on the plaintiff's side its Power of Attorney filed chief examination affidavit, whereupon animadverting such attempt on the part of the Power of Attorney to get himself examined as P.W.2 without seeking the permission of the Court under Order 18 Rule 3(a) of CPC, the revision petitioner filed the I.A.No.428 of 2008 for eschewing the chief examination affidavit filed by the said Power of Attorney. Whereupon, the Court after hearing both sides, dismissed the I.A. Being aggrieved by and dissatisfied with the order of the lower Court, this revision has been focussed on various grounds.
4. The learned counsel for the revision petitioner would develop his argument to the effect that the lower Court was wrong in assuming and presuming that Bank is an entity which is different from its power agent and in such a case, the provisions of Order 18 Rule 3(a) of CPC cannot be pressed into service; the Power of Attorney only filed the suit claiming that he is responsible for prosecuting the matter and that he was conversant with the facts and in such a case, virtually he was equal to that of the plaintiff itself and he cannot relegate himself to a later stage for examining himself so as to fill up the lacuna in evidence already placed before the Court in the form of the deposition of P.W.1.
5. The learned counsel for the respondent argued the matter to the effect that in this case the plaintiff happened to be the Bank and the Manager as Power of Attorney was only representing the Bank and hence he cannot be equated to the status plaintiff itself and as such, there is nothing wrong in the order of the lower Court warranting interference by this Court.
6. A bare perusal of Order 18 Rule 3(a) read with Section 135 of the Indian Evidence Act would leave no doubt in the mind of the Court that the Court has got the power to permit even the parties' agent to be examined later than the examination of the witnesses on the parties' side.
7. The crucial point to be decided in this case is as to whether the embargo as contemplated under Order 18 Rule 3(a) CPC could be pressed into service as against the Power of Attorney.
8. At this juncture, my mind is redolent and reminiscent of the principle of 'Bonapartem' as well as the following maxims:
"Quando aliquid prohibetur, prohibetur et omne per quod devenitur ad illud Quando aliquid mandatur, mandatur et omne per quod pervenitur ad illud"
The gist and kernel of the aforesaid maxims as well as the Bonapartem concept, would exemplify and display that when law prohibits or mandates a particular course, it should be followed in stricto sensu and a party cannot be allowed to circumvent the same in any manner. Here the raison d'etre dearth of Order 18 Rule 3(a) CPC is that a party should not examine oneself at a later stage, so as to fill up the lacuna in the evidence of his own witnesses. Here the power of attorney as correctly put forth by the learned counsel for the revision petitioner is the person actually representing the Bank having corporate personality. In such a case, when a person is interested in seeing that he succeeds in the litigation, then such a person should be taken as equal to that of the party himself and without the permission of Order 18 Rule 3(a) of CPC, the said power of attorney should not be allowed to be examined at a later stage. Hence in these circumstances, the ratiocination adhered to by the lower Court deserves to be rejected and accordingly, the order of the lower Court is set aside by allowing this revision petition. However making it clear that it is open for the respondent/plaintiff to file an application for getting the power of attorney examined as P.W.2, whereupon after hearing both sides, it is for the Court to decide it purely on merits.
Accordingly, this civil revision petition is allowed. No costs. Consequently, connected miscellaneous petition is closed.
gms To First Additional Subordinate Judge's Court at Erode