The High Court dismissed a contempt petition challenging the trial court's order allowing a Power of Attorney holder to exhibit documents during evidence. The court held that since the examination was permitted and not challenged, and cross-examination was pending, no infirmity existed.
CMP No. 1126 of 2022 stood dismissed being devoid of merit.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
IN THE HIGH COURT OF ORISSA AT CUTTACK
CMP No. 1126 of 2022
Baidhar Bal
…. Petitioner Mr. Niranjan Lenka, Advocate
-versus-
Prativa Muduli and another …. Opp. Parties
CORAM:
JUSTICE K.R. MOHAPATRA
ORDER
Order No.
16.12.2022
3 Mr. Lenka, learned counsel submits that PW-1, namely, Dushasan Muduli is the Power of Attorney of the Plaintiff No.1. As the Plaintiff No.1 was ill, a petition was filed to examine her Power of Attorney. The said petition was allowed by order dated 27th January, 2021 and said Dushasan Muduli as PW-1 produced his evidence-in-affidavit. Along with his evidence in-chief, the PW-1 produced certain documents, which were executed prior to the date of execution of the Power of Attorney, i.e., dated 30th January, 2019. It is his submission that the Power of Attorney does not have any knowledge about those documents, as those were executed prior to the date of execution of the POA. It is only the Plaintiff No.1, who is
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competent to admit those into evidence. Since the Plaintiff No.1 has not yet been examined in the suit, those documents should not be marked as exhibits. In support of his case, Mr. Lenka, learned counsel for the Petitioner placed reliance upon a decision of the Hon’ble Supreme Court in the case of Janki Vashdeo Bhojwani and another Vs. Indusind Bank Ltd. and others , reported in AIR 2005 SC 439, in para-17 of which, it is held as under:-
“17. On the question of power of attorney, the High Courts have divergent views. In the case of Shambhu Dutt Shastri Vs. State of Rajasthan, 1986 (2) WLL 713 it was held that a general power of attorney holder can appear, plead and act on behalf of the party but he cannot become a witness on behalf of the party. He can only appear in his own capacity. No one can delegate the power to appear in witness box on behalf of himself. To appear in a witness box is altogether a different act. A general power of attorney holder cannot be allowed to appear as a witness on behalf of the plaintiff in the capacity of the plaintiff.”
He, therefore, submits that no one can delegate power to appear for someone else in a witness box on his behalf. Thus, a general power of attorney holder cannot be allowed to appear as a witness on behalf of the Plaintiff in the capacity of the Plaintiff. Learned trial Court failed to take this position of law into consideration while passing the impugned order. Hence, the impugned order is not sustainable and hence the same is liable to be set aside.
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existence prior to the date of execution of Power of Attorney. It is trite law that a Power of Attorney can lead evidence on the facts which are in his knowledge, but he cannot be examined in the capacity of the Plaintiff (the principal). There is no doubt that PW-1 is being examined as Power of Attorney of Plaintiff No.1. Whether documents were in his knowledge or not can only be ascertained at the time of argument of the suit taking into consideration the materials on record. It is also not disputed that PW-1 has not yet been cross-examined. Thus, the Petitioner, who is the Defendant, has an opportunity to put questions with regard to those documents of PW-1. Thus, I find no infirmity in the impugned order rejecting the application as stated above.
s.s.satapathy
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2 issues framed by the court
Whether a Power of Attorney holder can be examined as a witness to exhibit documents executed prior to the date of the Power of Attorney.
Whether the impugned order admitting document production by the Power of Attorney without challenging the order of examination is sustainable.
Colour shows how this judgement treated each authority
Janki Vashdeo Bhojwani and another Vs. Indusind Bank Ltd. and othersExplained¶17
Janki Vashdeo Bhojwani and another Vs. Indusind Bank Ltd. and others, AIR 2005 SC 439 · Who else cites this
Shambhu Dutt Shastri Vs. State of RajasthanExplained¶17
Shambhu Dutt Shastri Vs. State of Rajasthan, 1986 (2) WLL 713
Baidhar Bal
Prativa Muduli
another
K.R. Mohapatra
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
