Disposed¶17

Srimanta Kumar Das & Ors. v. Emran Hossain & Ors.

Calcutta HC15 May 2024CO/3182/2018

Case brief

AI extract

What is this about?

C.O. 3182 of 2018; Ajoy Kumar Mukherjee, J.; deposition/tendering of evidence through a Constituted Power of Attorney holder; seeking leave of the Court below for testimony by the constituted attorney; refusal by the Civil Judge (Junior Division), Buniadpur, Dakshin Dinajpur (Order No. 34, 4th April 2018) in partition suit P.S. No. 25 of 2013; constituted attorney not a party to the suit; disposed of with liberty to the defendants/petitioners to seek leave; opposite parties unrepresented.

What did the court decide?

Liberty granted to the defendants/petitioners to seek leave before the Court below for adducing evidence through their Constituted Power of Attorney holder; upon such leave being sought, the Court below is to dispose of the prayer in accordance with law without being influenced by any observation made herein. ¶17

Srimanta Kumar Das & Ors. Vs Emran Hossain & Ors. — Calcutta HC (2024) — LawSathi Research

What the court decided

AI extract

Outcome

¶17

Issue for consideration

Whether the petitioners' Constituted Attorney (holder of a Constituted Power of Attorney) could depose/tender evidence on their behalf in the suit, given that the Court below refused because no permission/leave had been sought from the Court for deposition through power of attorney.

¶12

Court's answer

Having considered the facts and circumstances, this Court disposed of C.O. 3182 of 2018, granting liberty to the defendants/petitioners to seek leave before the Court below for adducing evidence through their Constituted Power of Attorney holder.

¶17

Ratio / Principle

In the event such leave is sought, the Court below will dispose of the prayer for granting leave in accordance with law, without being influenced by any observation made herein — i.e., the substantive question whether deposition through a constituted attorney is permissible without prior leave was expressly left open by this Court.

¶18

Detailed headnote1 paragraphs

Revision (C.O. 3182 of 2018), decided by a single-member Bench (Ajoy Kumar Mukherjee, J.), challenging impugned Order No. 34 dated 4th April, 2018 of the learned Civil Judge (Junior Division), Buniadpur, Dakshin Dinajpur in partition suit P.S. No. 25 of 2013 instituted by the opposite parties (Emran Hossain & Ors.). The Court below had not allowed the petitioners' (Srimanta Kumar Das & Ors.'s) Constituted Attorney, Sri Biplab Das, to depose on their behalf, observing that he was not a party to the suit and that no leave had been sought by the defendants to tender evidence through the Power of Attorney holder. Disposing of the application, this Court granted the defendants/petitioners liberty to seek leave before the Court below for adducing evidence through their Constituted Power of Attorney holder, directing that such prayer be disposed of in accordance with law without being influenced by any observation made herein; the substantive point was thereby left open. Opposite parties were not represented in spite of service; urgent photostat certified copy directed to be supplied on priority basis on compliance of usual formalities.

¶1

Ct. 15.05 No.

¶2

652 2024 62 akb

¶3

C.O. 3182 of 2018

¶4

Srimanta Kumar Das & Ors. –VersusEmran Hossain & Ors.

¶5

Mr. Subir Banerjee Ms. Dipanwita Das …For the Petitioners

¶6

Opposite parties are not represented, in spite of

¶7

service.

¶8

Challenging impugned order No. 34 dated 4^th April, 2018 passed by the learned Civil Judge (Junior Division), Buniadpur, Dakshin Dinajpur in P.S. No. 25 of 2013, present application has been preferred.

¶9

Petitioners’ contention is that the opposite parties instituted the aforesaid case, being P.S. 25 of 2013 for partition of the joint property of the petitioners and the opposite parties. The petitioners have been arrayed as defendants in the said suit and the petitioners are all residents of different places and involved in different professional engagements and it is very difficult and strenuous undertaking for them to appear physically before the Court.

¶10

Petitioners accordingly decided to empower their trusted person Sri Biplab Das to take the responsibility to conduct the said suit on their behalf, including tendering evidence for and on behalf of the petitioner before the learned Court. Accordingly, after completion of the

¶11

¶12

evidence on behalf of the plaintiffs/opposite parties herein, the aforesaid Constituted Attorney of the petitioners appeared and tendered evidence as witness on behalf of the petitioners in the said suit. However, the learned Court below by the order impugned did not allow the said Constituted Attorney of the petitioners to depose on behalf of the petitioners mainly on the ground that the petitioners did not seek permission from the Court to depose through power of attorney.

¶13

Being aggrieved by that order Mr. Subir Banerjee, learned Counsel appearing on behalf of the petitioner submits that the Court below failed to appreciate that the Constituted Attorney was specifically empowered to depose on behalf of the petitioners and he failed to appreciate that no separate application is necessary to seek permission for deposing in a suit by a Constituted Power of Attorney. He further submits that the Constituted Attorney of the petitioners is well conversant with the facts and circumstances of the case and as such has the knowledge to depose for and on behalf of the petitioners and he had also gathered and collected information and knowledge about the factual aspects of the matter and accordingly petitioners have prayed for setting aside the order impugned and prayed for allowing the Constituted Attorney to tender evidence by

¶14

¶15

deposing on behalf of the petitioners.

¶16

On perusal of the order impugned, I find that the Court below have made specific observation that Sri Biplab Das, who is Power of Attorney holder is not a party to the present suit and he further held that no leave was sought for from the Court by the defendants/petitioners herein to tender their evidence through the said Power of Attorney.

¶17

Having considered the facts and circumstance of the case, C.O. 3182 of 2018 is hereby disposed of giving liberty to the defendants/petitioners herein to seek leave before the Court below for adducing evidence through their Constituted Power of Attorney holder.

¶18

In the event of seeking such leave by the petitioners herein as above, the Court below will dispose of such prayer for granting leave in accordance with law without being influenced by any observation made herein.

¶19

Urgent photostat certified copy of this order, if applied for, be supplied to the parties, on priority basis on compliance of all usual formalities.

¶20

( Ajoy Kumar Mukherjee, J.)

Srimanta Kumar Das & Ors. v. Emran Hossain & Ors.

Case brief

What is this about?

What did the court decide?

Srimanta Kumar Das & Ors. v. Emran Hossain & Ors.

Case brief

What is this about?

What did the court decide?

Why is it important?

What the court decided

Issues for consideration

Procedural history

Parties & counsel

Coram

Case details

Similar cases

Nirmala Sahu ( Samanta) Vs Secty., Nandigram Braja Mohan Girls H.S. & Ors.

Abhijit Agarwala @ Abhijit Agarwal Vs Md. Badiruddin

Goutam Kinkar Dhar Vs Amia Bhusan Biswas

Sushil Kumar Singha Vs State of West Bengal & Anr.

Giridhari Pradhan Vs Rathindra Nath Bera and Ors.

Indranil Mukherjee Vs Satyanarayan Jaiswal