Andhra HC (Pre-Telangana)
Salar Jung Museum vs Atiya Talat on 28 July, 2000
Equivalent citations: 2000(6)ALD70, 2000(5)ALT557
Author: Vaman Rao
Bench: Vaman Rao
ORDER
1. This civil revision petition is directed against the order dated 26^6-2000 passed in IA No.345 of 2000 in OS No.173 of 1995 on the file of V Junior Civil Judge, City Civil Court, Hyderabad.
2. In the said IA the prayer of the respondent who is the defendant in the suit is that the evidence of the plaintiff may be treated as closed and a witness proposed to be examined on behalf of the plaintiff as PW2 may not be permitted to be examined.
3. The instant Interlocutory application proceeds on the ground that the proposed witness who happens to be the husband of the plaintiff (who has been examined as PW1) is also the GPA of the said plaintiff. The contention is that a GPA of the plaintiff cannot be allowed to be examined as a witness on behalf of the plaintiff.
4. The learned Counsel for the petitioner herein contends that this view is supported by a judgment of this Court in K, Bharathy v. Authority Under Section 50 of APSE Act-Cum-Labour Officer, . The argument of the learned Counsel is based on Order III, Rules 1 and 2 of CPC, which is extracted below:
Appearances, etc. may be in person, by recognised agent or by pleader.
1. Any appearance, application or act in or to any Court, required or authorised by law to be made or done by a party in such Court, may, except where otherwise expressly provided by any law for the time being in force, be made or done by the party in person, or by this recognised agent, or by a pleader appearing, applying or acting, as the case may be, on his behalf:
Provided that any such appearance shall, if the Court so directs, be made by the party in person. Recognised Agents
1. The recognised agents of parties by whom such appearances, applications and acts may be made or done are
(a) persons holding powers-of-attorney, authorising them to make and do such appearances, applications and acts on behalf of such parties;
(b) persons carrying on trade or business for and in the names of parties not resident within the local-limits of the jurisdiction of the Court within which limits the appearance, application or act is made or done, in matters connected with such trade or business only, where no other agent is expressly authorized to make and do such appearances, applications and acts.
5. A reading of the above provision would show that any appearance, application or act in or to any Court required or authorised by law to be made or done shall be made by party in person or by his recognised agent or by a pleader on his behalf. The proviso contemplates that notwithstanding this provision the Court may direct a party to make such appearance or application in person in appropriate case. Rule 2 of the Order III as seen above contemplates that recognised agent mentioned in Rule 1 of Order III shall be only among the categories specified therein. According to this provision the recognised agent mentioned in Rule 1 of Order III can be a person holding power of attorney who has been authorised to make and do such appearances, applications and acts on behalf of the parties as contemplated under the said rule.
6. It is apparent that Order III Rules 1 and 2 constitutes an enabling provision under which a party which is required to make an appearance or an application or to do certain thing in connection with a proceeding in which he is a party can also make such appearance or application or act through a person holding his power of attorney. What it provides is that where the law requires that an appearance, application or act be made by a party, it shall be sufficient compliance if such appearance, application or act is made by his power of attorney. This provision has nothing to do with the examination of witnesses by a party to proceedings.
7. In the judgment of this Court cited by the learned Counsel for the petitioner what has been laid down is that in view of the provisions in Order III Rule 2 CPC a party to a proceedings can appoint a power of attorney for the purpose mentioned in Rule 1 viz., for making an appearance, application or act in or to any Court and that power of attorney cannot be appointed for the purpose of giving evidence on behalf of the party in substitution of that party. What Order III contemplates is that certain appearances or acts, which are required to be done by a party can be permitted to be done by his power of attorney. It does not deal with the question as to whether and if so what powers can be assigned by a person to his power of attorney. That is not the field covered by the provisions in Order III, Rules 1 and 2 CPC and this question has to be determined in the light of provisions of Powers of Attorney Act, 1882 and Provisions in Chapter 10 relating to Agency in Indian Contract Act. As to who may testify as a witness, is governed by Section 118 of Evidence Act. In view of this, with great respect I am doubtful whether the law enunciated in the broad manner in the above cited authority correctly interprets Order III, Rules 1 and 2 CPC but there is no need to go into this question in this case inasmuch as only question that arises for consideration in this case is whether the husband of the plaintiff who happens to be her power of attorney also can be examined on her behalf as a witness or not. Even in the judgment cited by the learned Counsel for the petitioner it is specifically stated that a power of attorney also can appear as a witness in his personal capacity though not in his capacity as a power of attorney.
8. In this case in the counter filed by the respondent-plaintiff in answer to the IA filed by the petitioner herein it is specifically stated that her husband is personally aware of most of the facts relating to the property in question. It is specifically stated that it was her husband who purchased the property in her name in lieu of meher amount due to her. It is obvious that in this case the plaintiff seeks to examine her husband not in his capacity as her power of attorney but as her husband and as a person in the know of facts relevant to the case.
9. In these circumstances, there can be no objection in permitting the plaintiff to examine her husband as a witness on her behalf.
10. The learned V Junior Civil Judge has rightly overruled the objection and rejected the petition in this behalf.
11. In view of this, this civil revision petition is dismissed. No costs.