Mohd. Mansur Ali Khan Vs. Saifia Education Society and ors. - Court Judgment

Excerpt:
civil - examining of - witness - order 18 rule 4 read with order 3 rules 1 and 2 of code of civil procedure, 1908(cpc) - respondent no.1 entered into agreement with petitioner's mother for purchase of land - before execution of agreement petitioner's mother died - hence, respondent no.1 filed suit for specific performance against petitioners herein whom were legal heirs of executant - petitioners authorized someone as power of attorney holder for defending suit - subsequently respondent no.1 filed application under order 3 rules 1 and 2 read with order 18 rule 4 of cpc for summoning petitioners for examining them - hence, present petition - held, order 3 rule 1 and 2 of cpc empowers power of attorney holder to 'act' on behalf of principal - said 'act' confines to act only in respect of.....orders.r. waghmare, j.1. by this petition, the petitioner is aggrieved by order dated 12-12-2005, passed by 9th additional district judge, bhopal in civil suit no. 5-a/2005, allowing the application of respondent no. 1 /plaintiff under order 18, rule 4 read with order 3 rules 1 and 2 of the code of civil procedure (for short the 'cpc').2. brief facts of the case are that respondent no. 1 saifia education society, bhopal filed a suit against petitioner mohd. mansur ali khan and respondent nos. 2 and 3, as the successors to smt. begum sazida sultan, former ruler of bhopal as her legal heirs, since late smt. begum sazida sultan had entered into an agreement to sell land bearing khasra nos. 47, 48, 50, 51 admeasuring 35.70 acres at bhopal, with respondent no. 1 saifia education society by.....

Judgment:
ORDER

S.R. Waghmare, J.

1. By this petition, the petitioner is aggrieved by order dated 12-12-2005, passed by 9th Additional District Judge, Bhopal in Civil Suit No. 5-A/2005, allowing the application of respondent No. 1 /plaintiff under Order 18, Rule 4 read with Order 3 Rules 1 and 2 of the Code of Civil Procedure (for short the 'CPC').

2. Brief facts of the case are that respondent No. 1 Saifia Education Society, Bhopal filed a suit against petitioner Mohd. Mansur Ali Khan and respondent Nos. 2 and 3, as the successors to Smt. Begum Sazida Sultan, former ruler of Bhopal as her legal heirs, since Late Smt. Begum Sazida Sultan had entered into an agreement to sell land bearing Khasra Nos. 47, 48, 50, 51 admeasuring 35.70 Acres at Bhopal, with respondent No. 1 Saifia Education Society by agreement dated 7-2-1985. However, the sale-deed could not be executed due to the death of Smt. Begum Sazida Sultan and respondent No. 1 Saifia Education Society filed a suit before the 9th Additional District Judge, Bhopal for specific performance requiring the defendant petitioner and respondent Nos. 2 and 3 to execute the sale deed in respect of the land. The suit was registered as R. C.S. No. 104/2003 and written statement was also filed on behalf of the petitioner and petitioners/defendants on 29-4-2003.

3. Petitioner Mohd. Mansur Ali Khan, however, appointed Rashidul Hasan Khan as his power of attorney holder to defend the suit on his behalf and Shri Rashidul Hasan Khan filed affidavit under Order 18, Rule 4 CPC, dated 2-9-2003. Respondent Education Society filed application dated 23-8-2005 under Order 3, Rules 1 and 2 read with Order 18, Rule 4 CPC, stating that the petitioner be summoned to Court for the purposes of being examined. Reply opposing the application was filed by the defendant stating that the respondent plaintiff had not objected to the competence of power of attorney holder filing affidavit under Order 18, Rule 4 CPC, on 8-9-2004, and had never raised any objection to the competence of the witness till 23-8-2005, and that under Section 118 of the Evidence Act, the power of attorney holder was a competent witness who could depose on his behalf before the trial Court.

4. Counsel for the petitioner also stated that the petitioner had categorically stated in the written statement that he had no; knowledge of the transaction that had taken place between his Late Mother and respondent Society, therefore, it was not necessary for the petitioner to appear in Court to merely state such a fact and the learned trial Court had erred in holding that the presence of the present petitioner was necessary for adducing evidence, since the power of attorney holder had no personal knowledge in respect of the agreement executed on 7-6-1985 and could not depose in place of defendant/petitioner Mohd. Mansur All Khan.

5. Counsel for the petitioner relied on Bashir v. Smt. Hussain Bano reported in 2005 (2) MPHT 390, whereby while deciding Civil Revision No. 395/2003, learned single Judge while considering whether the landlady who had filed a case for eviction of suit premises, being 80 years of age had contended that she required the suit accommodation bona fide for herself and members of her family, had held that the landlady herself was not required to prove the bona fide need, it could be deposed by her holder of power of attorney and non-examination of the plaintiff landlady was not fatal.

6. Counsel for the petitioner has stated that the plaintiff respondent is making futile attempts to bring the petitioner in Court, when there is already First Appeal No. 296/ 2000 pending in this High Court, regarding the property in question, and since it is part of the entire property that has been impugned in the First Appeal and there is a stay order passed by this Court, regarding the alienation of the same.

7. Counsel for the respondent plaintiff on the other hand pointed that under Order 3, Rule 1, CPC, any appearance, application or act in or to any Court, required or authorized by law to be made or done by a party in such Court, may, except where otherwise expressly provided by any law for the time being in force, be made or done by the party in person, or by his recognized agent, or by a pleader appearing, applying or acting, as the case may be, on his behalf: provided that any such appearance shall, if the Court so directs, be made by the party in person, thereby implying that the holder of power of attorney can depose regarding the acts done by the power of attorney holder on behalf of the principal, but he cannot depose regarding the acts done by the principal himself and that the scope of interfering with an order passed by the trial Court under Article 227 was limited to illegality, or jurisdictional error committed by the lower Court, whereas in the Instant case the trial Judge had ordered the presence of the petitioner according to provision of law and could not be interfered with. So also in the matter of Bashir (supra), the learned single Judge has not considered that the word 'acts' in Rule 2 of Order 3 does not include act of power of attorney holder to appear as a witness on behalf of the party.

7-A. Relying on Janki Vashdeo Bhojwani v. Indusind Bank Limited reported in : AIR2005SC439 , the Apex Court while considering the matter of attachment of house property in recovery proceedings and the objections by the appellants, wife of the debtors, had considered the question whether the wives could be examined and who claimed themselves to be co-purchasers of the house property and had no documentary evidence to show the source from independent income of the appellants, then the Court held that the wives would have to be examined in person. Referring to para 13 of the said judgment, the Apex Court held thus:

13. Order III, Rules 1 and 2, CPC, empowers the holder of power of attorney to 'act' on behalf of the principal. In our view the word 'acts' employed in Order III, Rules 1 and 2, CPC, confines only in respect of 'acts' done by the power of attorney holder in exercise of power granted by the instrument. The term 'acts' would not include deposing in place and instead of the principal. In other words, if the power of attorney holder has rendered some 'acts' in pursuance to power of attorney, he may depose for the principal in respect of such acts, but he cannot depose for the principal for the acts done by the principal and not by him. Similarly, he cannot depose for the principal in respect of the matter which only the principal can have a personal knowledge and in respect of which the principal is entitled to be cross-examined.

Further, on the diverse views expressed by the High Court, the Apex Court has dealt with the controversy in paras 17, 18, 20 and 21:

17. On the question of power of attorney, the High Courts have divergent views. In the case of Shambhu Dutt Shastri v. 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 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.

18. The aforesaid judgment was quoted with the approval in the case of Ram Prasad v. Hari Narain . It was held that the word 'acts' used in Rule 2 of Order III of the CPC does not include the act of power of attorney holder to appear as a witness on behalf of a party. Power of attorney holder of a party can appear only as a witness in his personal capacity and whatever knowledge he has about the case he can state on oath but he cannot appear as a witness on behalf of the party in the capacity of that party. If the plaintiff is unable to appear in the Court, a Commissioner for recording his evidence may be issued under the relevant provisions of the CPC.

(Emphasis mine)

20. However, in the case of Humberto Luis v. Floriano Armando Luis reported in 2002 (2) Bom CR 754 : 2000 AIHC 1572 on which the reliance has been placed by the Tribunal in the present case, the High Court took a dissenting view and held that the provisions contained in Order III, Rule 2 of CPC cannot be constructed to disentitle the power of attorney holder to depose on behalf of his principal. The High Court further held that the word 'act' appearing in Order III, Rule 2 of CPC takes within its sweep 'depose'. We are unable to agree with this view taken by the Bombay High Court in Floriano Armando (supra).

21. We hold that the view taken by the Rajasthan High Court in the case of Shambhu Dutt Shastri (supra) followed and reiterated in the case of Ram Prasad (supra) is the correct view. The view taken in the case of Floriano Armando Luis (supra) cannot be said to have laid down a correct law and is accordingly overruled.

8. In the instant case the main question for decision is since the counsel for the petitioner has stated that the defendant petitioner had nothing to depose, except the bald statement that he was not aware of any transaction entered into by his Late Mother and the plaintiff respondent, and for this purpose the power of attorney holder can depose under Section 118 of the Evidence Act.

9. Whereas considering Order 3, Rules 1 and 2, CPC in its strictest interpretation would empower the holder of power of attorney to 'act' on behalf of the principal, and such an 'act' could not be interpreted to mean that he could also depose regarding the acts done by the principal himself. Whether the transaction was within the personal knowledge of petitioner Mohd. Mansur Ali Khan could not be deposed by the agent, power of attorney holder. In this respect, principal was required to be cross-examined. The trial Court has also failed to make any observations regarding the simple fact that in a suit for specific performance, claimed against the petitioner defendant himself, it was of utmost importance that the defendant be examined even if he know nothing about the said transaction. It was a valuable right available to the plaintiff which could not be shrugged off by petitioner defendant on the pretext that the power of attorney holder could depose regarding the same.

10. I find that since the defendant had a share in the property and it was obligatory on his part to have entered the witness box and discharged the burden. The High Court of Bombay in the Floriano Armando Luis, (2000 AIHC 1572) (supra) had extended the provisions contained in Order 3, Rule 2 of the CPC, of the word 'act' to take within its sweep 'depose', thereby meaning that a power of attorney holder could also depose on behalf of the principal. But, this has been categorically struck down by the Supreme Court as not being the correct law and overruled the same. In the light of the same, the judgment relied on by the petitioner defendant in Bashir's case (supra) also cannot be relied on.

11. Counsel for respondent/plaintiff also relied on Sadhana Lodh v. National Insurance Company Limited reported in : [2003]1SCR567 , whereby the Court held that the supervisory jurisdiction conferred on the High Court under Article 227 was rather restricted and it could only see whether an inferior Court or Tribunal had proceeded within its parameters and in exercising the supervisory power under Article 227 of the Constitution, the High Court does not act as an appellate Court or a Tribunal. The same would not be applicable in the present case since the impugned order required interpretation of Order 3, Rule 1 of the CPC, and the petition was hence maintainable.

Considering the above on the anvil of the judgment in Janki Vashdeo Bhojwani, (AIR 2005 SC 439) (supra), the petition must fail, and thus I do not find any ground for interference in the order passed by the trial Court. The trial Court may issue a fresh date for the appearance of defendant No. 1.

12. The petition is dismissed. No order as to costs.