Dismissed

Khatijabee Syed Ismail and Ors. v. Kanhu Tulshiram Sarode and Anr.

Bombay HC10 Apr 2008WP/265/2007

Case brief

AI extract

What is this about?

The High Court dismissed a writ petition challenging the trial court's order allowing a husband to testify as a Power of Attorney holder for his wife. Distinguishing Supreme Court precedents, the court upheld the trial court's discretion given the husband's knowledge of the transaction and inherent powers under Section 151 CPC.

What did the court decide?

The writ petition is dismissed; no interference with the trial court order is permitted.

Khatijabee Syed Ismail and Ors. Vs Kanhu… — Civil Procedure and Limitation | Bombay HC (2008)

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1 3299.2012 WP

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD

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WRIT PETITION NO. 3299 OF 2012

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1] Tareqbeen Mubarkbeen Mazi Age 48 years, Occ. Agri, R/o Ambad, Tq. Ambad, Dist. Jalna. 2] Saubeen Mubarkbeen Mazi, Age 45 years, Occ. Agri., R/o Ambad, Tq. Ambad, Dist. Jalna .. Petitioners Versus Ume Habib w/o Istiya Hashmi, Age 61 years, Occ. Agri., R/o Ambad, Tq. Ambad, Dist. Jalna. .. Respondents

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Shri S.D. Hiwrekar, Advocate for petitioner Shri V.S. Badak , Advocate for sole respondent.

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CORAM : Mrs. MRIDULA BHATKAR, J. DATE : 14^th OCTOBER, 2013.

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PER COURT :

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. This Writ Petition is directed against the order, below Exh. 21,

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dated 21-01-2012, passed by the learned Civil Judge (Junior Division), Ambad, Dist. Jalna in R.C.S. No. 265/2007. The present petitioners are the original defendants in the suit bearing

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2 3299.2012 WP

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No. 265/2007. The respondent is original plaintiff who has filed a suit for simplicitor mandatory injunction against the petitioners. The Original plaintiff is a Muslim by caste and ‘Pardanashin lady’. She has given her Power of Attorney holder in favour of her husband after framing of the issues. Her husband filed affidavit-in-chief on 12-07-2010, as a witness for the original plaintiff, and thereafter on 12-03-2012, the original plaintiff filed application at Exhibit 21, seeking permission to adduce evidence her behalf and through attorney holder. The defendants/ petitioners oppose the said application. On hearing the parties, the said application is allowed by the trial Court, thereby allowing the husband of the original plaintiff to lead evidence as an attorney holder for original plaintiff. Hence this petition.

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The learned Counsel for the petitioners submits that the trial Court ought not to have allowed the husband of the original plaintiff to lead evidence on her behalf. The learned Counsel submitted that original plaintiff has to step in the witness box herself. In view of the judgment of the Hon’ble Supreme Court in the case of Janki vashdeo Bhojwani and another V. Indusind Bank Ltd. & Others; reported in AIR 2005, Supreme Court, 439 . He further submitted that in the present matter, the husband/Attorney holder has filed

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3 3299.2012 WP

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affidavit-in-chief, which is already taken on record. So, it forms a part of the evidence and the proceedings of the Court. Now, by tendering other evidence i.e. another examination-in-chief of Attorney holder, the original plaintiff wants to substitute her evidence, which is not permissible under the Code of Civil Procedure. The learned Counsel for the petitioners further submitted that earlier evidence which is taken on record cannot be struck off. The learned Counsel also place reliance on Order XVIII Rule 3-A of the Code of Civil Procedure. Hence, examination-in-chief filed later by the original plaintiff at Exhibit 21, is without permission of the Court. Thus, he submits that the order passed by the trial Court is to be quashed and set aside.

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The learned Counsel for the respondent opposes the objection raised by the petitioners and submits that the affidavit-in-chief first submitted by the husband of the original plaintiff on 12-10-2007. The same affidavit-in-chief was not pressed by the original plaintiff. Thereafter, on the same day i.e. 12-03-2012, plaintiff has filed examination-in-chief. The learned Counsel further submits that the trial Court has rightly passed the order allowing original plaintiff to depose or adduce evidence through her Power of Attorney . Thus, he prayed for dismissal of the Writ Petition.

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4 3299.2012 WP

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Perused, the order passed by the trial Court and the documents annexed to the petition carefully. In the case of Janki vashdeo Bhojwani and another V. Indusind Bank Ltd. & Others (supra), the Hon’ble Supreme Court has held that the Attorney holder is not authorised to give evidence instead of ‘principal’. The Attorney holder can give evidence in respect of the matter which he has personal knowledge and to that extent his evidence can be considered.

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I place reliance on the reported judgment of the Hon’ble Supreme Court in the case of Man Kaur (deceased by Lrs.) V. Hartar Sing Sangha; reported in 2010 AIR, 6198 , particularly in para No. 12, the Hon’ble Supreme Court has considered elaborately that under which circumstances, Power of Attorney holder done any act or handled any transactions in pursuance of the Power of Attorney granted by the principal. he may be examined as a witness to prove those act or transaction. If the Attorney holder has personal knowledge of such acts and transaction and not the principal. The Attorney holder shall be examined, if those acts and transactions have to be proved. The Hon’ble Supreme Court also held that where the principal at no point of time had personally handled or dealt with or participated in the transaction and has no personal knowledge of

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the transaction, and where the entire transaction has been handled by Attorney holder, necessarily the Attorney holder alone can give evidence in regard to the transaction. The same was occurred, in case principal carrying on business through authorised managers/attorney holders or persons residing abroad managing their affairs through their attorney holders.

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In the present case, original plaintiff as well as Attorney holder both have filed affidavits that Attorney holder has knowledge of all the instances, facts and transactions which are taken on record, the same is mentioned in the plaint. Thus, affidavits are exhibited by the trial Court. It is rightly considered by the trial Court, that wherever husband and wife is a close family members and there is every possibility that husband/ Attorney holder has complete knowledge of the facts. However, there is every possibility that one of the spouse may not be aware all the transactions and either party may be acting on behalf of other. Under such circumstances, if these facts are stated on affidavits by the principal and Attorney holder that can be taken into account by the trial Court and the Attorney holder be allowed to depose on behalf of the original plaintiff principal.

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In the present Writ Petition, another contention is raised by the

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6 3299.2012 WP

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learned Counsel for the petitioners, on the point that earlier affidavitin-chief was filed by the husband of the original plaintiff and the same is taken on record. Therefore, subsequent affidavit-in-chiefs cannot be taken on record by striking it out the first affidavit in chief. In support of his submission the learned Counsel relied on Order XVIII

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Rule 3-A of the Code of Civil Procedure, which reads as under :-

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“ 3-A. Party to appear before other witnesses –

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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, reasons to be recorded, permits him to appear as his own witness at a large stage.”

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The learned Counsel for the petitioners submits that husband

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of the original plaintiff has already filed affidavit-in-chief and he is not party to the suit. The husband of the original plaintiff could not have examined without leave of the Court.

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It is made clear that once the status of the husband of the plaintiff as Power of Attorney has accepted and it is further accepted that he has personal knowledge in respect of the transactions and acts which are averred in the plaint he is allowed to lead evidence as Power of Attorney holder for the original plaintiff, then his evidence is

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to be recorded in place of principle i.e. the original plaintiff. It is undisputed fact that in view of Order XVIII Rule 3-A, 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 appears as his own witness at a later stage. It is also undisputed fact that husband of the plaintiff has filed affidavit-in-chief in the capacity of Power of Attorney holder was without any leave of the Court. However, subsequently identical affidavit-in-chief was filed by the original plaintiff through her Power of Attorney holder . Thus, the earlier affidavit-in-chief filed by the husband of the plaintiff was without leave of the Court and the same is taken on record. The affidavit-in-chief filed by the husband of the plaintiff as a witness. Hence, the same was has duplication of the evidence. However, the status of the husband of the plaintiff is dual as a witness and also Power of Attorney of his wife. Therefore, the trial Court has rightly considered his status as a Power of Attorney for the principal is to be recognised on the basis of affidavit-in-chief filed by the plaintiff and the Power of Attorney, It is to be noted that affidavit-in-chief filed by the Power of Attorney first in time and affidavit-in-chief filed later both are identical. It is not the case of the petitioners, that two affidavit-in-chiefs are entirely different. However,

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husband of the original plaintiff as a witness and as a Power of Attorney has not taken a different stand. The husband of the plaintiff is bound to step into the witness box as a Power of Attorney for the plaintiff and will be cross-examined as a Power of Attorney to principal. Therefore, there is some anomaly created by placing two affidavit-in-chiefs by the original plaintiff. The husband of the plaintiff stands in the dual capacity. Therefore, the order passed by the trial Court allowing him to give evidence as a Power of Attorney to the original plaintiff cannot be faulted with. The trial Court has inherent powers to rectify the mistakes to meet the ends of justice. However, there is no specific procedure mention under Section 151 of the Code of Civil Procedure.

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Hence, no interference is required in the writ petition. Writ Petition is dismissed.

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[ Mrs. MRIDULA BHATKAR, J.]

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SDM*/ Oct.2012

Khatijabee Syed Ismail and Ors. v. Kanhu Tulshiram Sarode and Anr.

Case brief

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Khatijabee Syed Ismail and Ors. v. Kanhu Tulshiram Sarode and Anr.

Case brief

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