Dismissed

Kasamkhan Gulabkhan Pathan and Others v. Vasant Haribhau Kulkarni and Others

Bombay HC30 Jan 2014WP/942/2014

Case brief

AI extract

What is this about?

A writ petition challenging an order rejecting an application to discard a Chief (affidavit) filed by a power of Attorney holder was disposed of. The court held that while the holder cannot testify to the plaintiff's personal knowledge, the evidence remains on record for the trial court to consider its weight.

What did the court decide?

The application to discard the Chief was rejected; the Writ Petition was disposed of.

Kasamkhan Gulabkhan Pathan and Others Vs… — Civil Procedure and Limitation | Bombay HC (2014)

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W.P.No.942/14

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 FARAD CONTINUATION SHEET NO.

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY

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 APPELLATE SIDE, BENCH AT AURANGABAD

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WRIT PETITION NO.942 OF 2014

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Office Notes, Office
Memoranda of Coram,
appearances, Court's
orders or directions
andRegistrar's
orders.

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Court's or Judge's orders

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Mr.S.S.Bora, advocate for the Petitioners.
Mr.R.P.Dhase, advocate for the Respondent No.1.

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 CORAM : S.V.GANGAPURWALA,J.

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 Date : 30.01.2014.

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PER COURT :

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Heard.

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The application to discard the Chief is rejected.

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Mr.Bora, learned counsel submits that power of Attorney Holder is not entitled to depose as a witness of the plaintiff nor is entitled to depose in respect of the facts which are personal to the knowledge of the plaintiff. The examination-in-Chief is the reproduction of the plaint and in a way the General Power of Attorney holder has become the witness of the plaintiff. This is not permissible. The learned counsel relies on the judgment of the Apex Court in a case of "Janki Vashdeo Bhojwani Vs. Indusind Bank Limited" reported in "2005 (2) SCC 217. According to the learned counsel as the said examination-in-Chief is not admissible,

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W.P.No.942/14

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the same ought to have been discarded.

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The learned counsel for the Respondents supports the order.

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The Chief has been filed on record. There would not be any provision to delete any part of the examination-in-Chief. However, at the time of adjudication, the Court certainly can consider the evidential value of the said evidence or the examination-in-Chief on affidavit. The trial Court has also observed that it would not be proper to discard the evidence totally at the thresh-hold. The reliable portion only can be accepted but for such appreciation of evidence, his deposition must be on record. It is the choice of the plaintiff to adduce evidence or not. If proper evidence is not led, the party has to suffer.

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The Court while rejecting the application is not oblivious of the legal position that the General Power of Attorney can depose only in respect of those facts which are personal to his knowledge and not all the acts done by the plaintiff in his personal capacity. The weightage to be given to such evidence is also to be considered by the Court while adjudicating the suit.

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In light of the above, the Writ Petition is disposed of. No

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costs.

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(S.V.GANGAPURWALA,J.)

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Dt.30.01.2014. asp/office/wp942.14

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W.P.No.942/14

Kasamkhan Gulabkhan Pathan and Others v. Vasant Haribhau Kulkarni and Others

Case brief

What is this about?

What did the court decide?

Kasamkhan Gulabkhan Pathan and Others v. Vasant Haribhau Kulkarni and Others

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Cases cited

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