Bhimappa and ors. Vs. Allisab and ors. - Court Judgment

Excerpt:

.....as hearsay evidence. it is a fundamental rule of evidence that hearsay is not admissible. oral evidence must be direct, i.e., if it refers to a fact which could been seen, it must be the evidence of a witness who says he saw it; if it refers to a fact which could be heard, it must be the evidence of a witness who heard it; if it refers to a fact which could be perceived by any other sense or in any other manner, it must be the evidence of a witness who says he perceived it by that sense or in that manner; if it refers to an opinion or to the grounds on which that opinion is held, it must be the evidence of the person who holds that opinion on those grounds. as opposed to this direct evidence, there is what is known as indirect evidence, i.e., transmitted, second hand or hearsay, something which a witness before the court says that he heard from a third party who is not called as a witness and the statement of that witness is inadmissible to prove the truth of the facts stated. this is the most common form of hearsay. the term hearsay is rather ambiguous and misleading and it has therefore been purposely excluded from the evidence act. hearsay may be defined to be that..........by primary or secondary evidence. primary evidence means the documentary evidence produced for inspection of the court. therefore, when a particular fact is to be established by production of documentary evidence there is no scope for leading oral evidence and there is no scope for personal knowledge. what is to be produced is the primary evidence, i.e., document itself. the said evidence can be adduced by the party or by his power of attorney holder. production of the document, marking of the document is a physical act which does not need any personal knowledge. even proof of the document is by examining the persons who are well versed with the document or by examining the attesting witnesses or the executant of the document. again the personal knowledge of the plaintiff has no role to play. in those circumstances it is open to the plaintiff to examine the power of attorney holder, produce the documents through the power of attorney holder, mark the same and examine witnesses to prove the said document if it is denied. therefore, the contention that the evidence of a power of attorney holder cannot prove the case of the plaintiff in all cases is not correct and that is not the.....

Judgment:

ORDER

3 RULES 1,2-Purpose and object of-Whether Order HI CPC deal with the Power of Attorney Holder exhaustively-HELD-The primary object of Order III Rule 1 CPC is to enable a party to perform certain acts before the Court, which he would have been otherwise required to do in person through recognized agent or pleader. The other object is to prevent perpetration of fraud by unauthorized person who poses himself to be the agent of a party before a Court. Order III Rule 2 contemplates the persons who are authorized to act. No unauthorized person can take part in the proceedings before a Court of law. Order III does not deal with the rights of parties who appear in person in Court, Order III Rule 1 CPC enacts a general rule and confers only procedural right. There are other modes of appearances, applications, or acting, expressly prescribed by the Code for particular cases, e.g., Order 33 Rule 3 and Order 44 Rule 1 CPC which, by reason of the words 'except where otherwise provided by any law for the time being in force' are taken out of the operation of the general rule to the extent so prescribed. In application for leave to sue as a pauper appeals a recognized agent cannot, therefore, appear. The words 'appearance, application or act' in Order III Rule 1 CPC only mean appear, make application and take such other necessary steps as may be required to be taken up for the progress of the proceedings. It offers no guidance whatsoever for giving deposition on oath as a Power of Attorney on behalf of a party. It is not a part of the pleadings. It is the part of the procedure for proving a case by competent witness. It does not deal with evidence to be adduced in a legal proceeding at all. Merely because the aforesaid provision does not deal with the evidence or who may testify, or depose, it cannot be said that the General Power of Attorney has no such power to depose. Order III CPC does not deal with the power of Power of Attorney Holder exhaustively.

(D) INDIAN EVIDENCE ACT, 1872 - SECTION 61-Primary and Secondary Evidence-Proof of documents-Suit for declaration of title-Party examing power of Attorney Holder-Power of Attorney Holder having no personal knowledge-Evidencary value of such power of Attorney Holder-HELD-In a suit for declaration of title, the plaintiff has to establish his title. Title cannot be established by his personal knowledge. It has to be established by producing documents under which he is claiming title, most of the time under a registered document. In so far as documents are concerned Section 61 of the Evidence Act mandates that the contents of documents may be proved either by primary or secondary evidence. Primary evidence means the documentary evidence produced for inspection of the Court. Therefore, when a particular fact is to be established by production of documentary evidence there is no scope for leading oral evidence and there is no scope for personal knowledge. What is to be produced is the primary evidence, i.e., document itself. The said evidence can be adduced by the party or by his Power of Attorney Holder. Production of the document, marking of the document is a physical act which does not need any personal knowledge. Even proof of the document is by examining the persons who are well versed with the document or by examining the attesting witnesses or the executant of the document. Again the personal knowledge of the plaintiff has no role to play. In those circumstances it is open to the plaintiff to examine the Power of Attorney Holder, produce the documents through the Power of Attorney Holder, mark the same and examine witnesses to prove the said document if it is denied. Therefore, the contention that the evidence of a Power of Attorney Holder cannot prove the case of the plaintiff in all cases is not correct and that is not the law laid down by the Supreme Court in Janaki Vashdeo Bhogwani's case reported in (2005) 2 SCC 217.