S. Padmavathamma Vs. S. Sudha Rani and ors. - Court Judgment

Excerpt:
civil - power of attorney holder as witness - order 3 rule 2 of code of civil procedure, 1908 - revision petitioner wanted to examine general power of attorney as witness on her behalf - respondent objected to it - power of attorney not a substitutive for his principal and cannot speak about facts which are not within his knowledge - held, general power of attorney holder can appear as witness only in his personal capacity but cannot appear as witness on behalf of plaintiff in capacity of plaintiff. - maximssections 2(xv) & 3(1) & (3): [v.v.s. rao, n.v. ramana & p.s. narayana, jj] ghee as a live stock product held, [per v.v.s. rao & n.v. ramana, jj - majority] since ages, milk is preserved by souring with aid of lactic cultures. the first of such resultant products developed is curd or yogurt (dahi) obtained by fermenting milk. dahi when subjected to churning yields butter (makkhan) and buttermilk as by product. the shelf life of dahi is two days whereas that of butter is a week. by simmering unsalted butter in a pot until all water is boiled, ghee is obtained which has shelf life of more than a year in controlled conditions. ghee at least as of now is most synthesized, ghee is a natural product derived ultimately from milk. so to say, milk is converted to dahi, then butter. scientifically or common sense point of view, even though ghee is not directly obtained from milk (which is certainly a product of cow/buffalo), it is certainly a product of a product of livestock i.e., cow or buffalo. it would be rather illogical or irrational to say that ghee is not a milk/dairy product or to say that it is not a product of livestock. section 2(x) and 2(iv) of the act used the plural products of livestock. the legislative intention is very clear that not only a product of livestock like milk (when notified by government), butter etc., are products of livestock but even derivative items (derived from a product of livestock) are intended to be product of livestock for the purpose of the act. thus the term ghee is to be interpreted on the basis of expression products of livestock as defined in section 2(xv) of the act. whatever products are declared as such by the government by notification, they become products of livestock for purpose of the act. consequently it was held that ghee is the product of livestock and by reason of power conferred under section 3(1) read with section 3(3) of the act on them it is competent for the government to declare ghee as product of livestock for the purpose of regulating its purchase and sale, in any notified market area. [per p.s. narayana, j,(dissenting)]if livestock or agricultural produce and the categories thereof had been specified in the statute itself by appending in the schedule or otherwise, that would stand on a different footing from the present provisions of the act which contemplate the issuance of notifications in accordance with the procedure ordained by the provisions specified supra. in view of the clear definition of the livestock and products of livestock, the ghee being derivative of butter or cream, if the language employed in definition to be taken as they stand, the only conclusion would be is that the ghee would not fall within ambit of the definitions aforesaid. sections 4 & 3: [v.v.s. rao, n.v. ramana & p.s. narayana, jj] declaration of notified area held, it is only under section 3 that government are required to publish draft notification inviting objections and section 3(3) mandates to consider objections and suggestions before issuing declaration order. it is very conspicuous that section 4 does not contemplate any draft notification inviting objections and suggestions before either constituting market committee, establishing notified market area or declaring notified market area for the purpose of levy of market fees. thus, except ordaining government to issue preliminary/draft notification inviting objections at the time of issuing declaration order under section 3(3) of the act nowhere much less under section 4 contemplates issuing a notification inviting objections. when the legislature has chosen to exclude principles of natural justice, the court cannot introduce rule of audi alteram partem and render statutory provisions unworkable. in such a case, maxim, expressum facit cessare tacitum (when there is express mention of certain things, then anything not mentioned is excluded) would apply. section 7: [v.v.s. rao, n.v. ramana & p.s. narayana, jj] levy of market fee element of quid pro quo - held, levying fees and tax are two forms of exercise of sttaes taxing power. there is no quid pro quo between tax payer and public authority as tax is a part of common burden. it is also well settled that fee is charge for special service or a benefit given to a class of individual fee payers and fee collected need not have correlation with actual service in exactitude but if it is shown that substantial portion of the fee is expended or the purpose for which it is levied, it would be justified. expressum facit cessare tacitum sections 4 & 3: [v.v.s. rao, n.v. ramana & p.s. narayana, jj] meaning when there is express mention of certain things, then anything not mentioned is excluded. orderc.y. somayajulu, j.1. when the revision petitioner, who is the plaintiff in os no. 82 of 1999 on the file of the senior civil judge at nagarkurnool, wanted to examine her general power of attorney as a witness on her behalf, an objection was taken by the respondents, who are the defendants in the suit, that general power of attorney cannot give evidence on behalf of the plaintiff revision petitioner. by the order under revision, on the basis of the said objection, the trial court held that general power of attorney holder can appear as a witness only in his personal capacity but cannot appear as witness on behalf of the plaintiff, in the capacity of the plaintiff.2. the order under revision cannot be said to be erroneous because the power of attorney can speak about the facts which are within his personal knowledge. since, the power of attorney is not a substitute for a party, he cannot speak about the facts which are exclusively within the knowledge of the party concerned, who is his 'principal'. in respect of the facts within his or her personal knowledge, it is the concerned party i.e., 'the principal', that can be speak. in respect of such matters the evidence of the general power of attorney of the party, would be hearsay and so is not admissible in evidence. a general power of attorney of such party, merely because of such power would not become a substitute to the party and so he is incompetent to depose about the facts which are within the exclusive personal knowledge of the party. therefore, the trial court holding that a power of attorney is not a substitutive for his principal, and cannot speak about the facts which are within the personal knowledge of the party, needs no interference.3. with the above observation, the revision petition is disposed of. no costs.

Judgment:
ORDER

C.Y. Somayajulu, J.

1. When the revision petitioner, who is the plaintiff in OS No. 82 of 1999 on the file of the Senior Civil Judge at Nagarkurnool, wanted to examine her General Power of Attorney as a witness on her behalf, an objection was taken by the respondents, who are the defendants in the suit, that General Power of Attorney cannot give evidence on behalf of the plaintiff revision petitioner. By the order under revision, on the basis of the said objection, the Trial Court held that General Power of Attorney holder can appear as a witness only in his personal capacity but cannot appear as witness on behalf of the plaintiff, in the capacity of the plaintiff.

2. The order under revision cannot be said to be erroneous because the Power of Attorney can speak about the facts which are within his personal knowledge. Since, the Power of Attorney is not a substitute for a party, he cannot speak about the facts which are exclusively within the knowledge of the party concerned, who is his 'principal'. In respect of the facts within his or her personal knowledge, it is the concerned party i.e., 'the principal', that can be speak. In respect of such matters the evidence of the General Power of Attorney of the party, would be hearsay and so is not admissible in evidence. A General Power of Attorney of such party, merely because of such power would not become a substitute to the party and so he is incompetent to depose about the facts which are within the exclusive personal knowledge of the party. Therefore, the Trial Court holding that a Power of Attorney is not a substitutive for his principal, and cannot speak about the facts which are within the personal knowledge of the party, needs no interference.

3. With the above observation, the revision petition is disposed of. No costs.