Allowed

Smt Savitri Devi v. State of Raj and Ors.

Rajasthan HC14 Nov 2014CW/4643/2014

Case brief

AI extract

What is this about?

This writ petition challenged a trial court order denying a petitioner, who had delayed over eleven years, permission to appear as a witness after her power of attorney holder failed to do so. The High Court quashed the order in the interests of justice and directed the trial court to fix a date for her cross-examination.

What did the court decide?

Impugned order quashed and set aside. Petition allowed at cost of Rs. 2000. Trial court directed to fix date for cross-examination.

Smt Savitri Devi Vs State of Raj and Ors. — Civil Procedure and Limitation | Rajasthan HC (2014)

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S.B.Civil Writ Petition No.4643/2014

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IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JAIPUR

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ORDER

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Savitri Devi vs. State of Raj. & ors.

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S.B.Civil Writ Petition No. 4643/2014 under Article 226 and 227 of the Constitution of India, against the order dated 5.3.2014 passed by Addl.Civil Judge(JD) NO.2, Jaipur District, Jaipur in Civil Suit No.15/87 (old no. 466/94).

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Date of Order: 14.11.2014

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PRESENT

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HON'BLE MR. ATUL KUMAR JAIN,J.

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Mr. N.C.Sharma assisted by Mr. S.L. Sharma, for the petitioner Mr. Sandeep Mathur for Mr. Inderjeet Singh,A.A.G. for the non-petitioners.

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BY THE COURT:

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In Shambhu Dutta Shastri v.State of Rajasthan & ors., 1986

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(2) WLN 713(para 23) , this Court 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. Same view has been taken in the following rulings:-

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(1) Janki Vashdeo Bhojwani & anr. vs. Indusind Bank Ltd. & ors., 2005(1) RRT 484 (SC) (2) Ramrasad v. Hari Narain & ors., AIR 1998 Raj. 185

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The aforesaid rulings were not in the knowledge of petitioner Smt. Savitri Devi and she in ignorance of these rulings, was trying to get her power of attorney holder examined in her place in a civil suit filed by her and the matter was dragging on since last eleven years.

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S.B.Civil Writ Petition No.4643/2014

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After eleven years knowing that the power of attorney holder cannot be examined in her place, she woke up and filed an application in the trial court that she should be examined before her power of attorney holder, as a witness and in this regard Order XVIII rule 3A of CPC was also cited by her in the trial court because as per Order XVIII Rule 3A of CPC, 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 the reasons to be recorded, permits him to appear as his own witness at a later stage. The prayer was refused by the trial court on the ground that she woke up after eleven years and further her name was not there in the list of witnesses submitted by her at the time of presentation of the plaint.

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The trial court by order dated 5.3.2014 in Civil Suit No. 466/94 (old No.15/87) dismissed the application in this regard and so she has come before this Court with a prayer that under Article 226 and 227 of the Constitution of India, the order of the trial court should be quashed and set aside and the defendants should be directed to avail the opportunity of her cross-examination as she has already filed her affidavit in her evidence long back on 8.11.2012 in the trial court.

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I have heard both the parties. Non-petitioners have strongly opposed the prayer of the petitioner-plaintiff but looking to all the circumstances of the case and looking to the provisions of law and in the interests of justice, the impugned order deserves to be quashed, which is hereby quashed and set aside. Petition of petitioner Smt. Savitri Devi is hereby accepted at a cost of Rs.2000/-( Rs.two thousand) which will be payable to non-petitioner no.3 by account

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S.B.Civil Writ Petition No.4643/2014

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payee cheque. Now, the trial court will fix a date for crossexamination of Smt. Savitri Devi by the defendants on such date. It is expected from Smt. Savitri Devi that on that date she will seek no adjournment for her evidence and if she is again found at fault then the trial court will be free to close her evidence. The stay petition also stands disposed of accordingly. A copy of this order be sent to the trial court immediately by speed post.

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( ATUL KUMAR JAIN),J.

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mlt

Smt Savitri Devi v. State of Raj and Ors.

Case brief

What is this about?

What did the court decide?

Smt Savitri Devi v. State of Raj and Ors.

Case brief

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What did the court decide?

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