The petitioner being aggrieved by the order dated 5.4.2014 passed on memo dated 24.03.2014 in O.S.No.61/2012 on the file of I Additional Civil Judge Mangaluru, is before this Court under Article 227.

2. The petitioner is defendant and respondent is plaintiff in O.S.No.61/2012 filed for a judgment and decree for partition of the plaint schedule property and for accounting of income from the suit schedule property and for payment.

3. When the matter stood at the stage of evidence, the defendant filed a memo dated 24.03.2014 indicating the Court that the defendant intends to examine her husband as DW.1 under Section 120 of the Indian Evidence Act, 1872 (for short ‘the Act’). The trial Court by its order dated 5.4.2014 rejected the memo observing that husband of the defendant can invoke Order III Rule 2 of CPC and file power of attorney and to depose on her behalf. The said order is impugned in the present writ petition.

4. Heard the learned counsel for the petitioner and learned counsel for the respondent and perused the writ papers.

5. Learned counsel for the petitioner submits that the trial Court is not right in rejecting the memo by observing that the husband of defendant can invoke Order III Rule 2 of CPC and to file Power of Attorney to depose before the Court. Counsel for the petitioner further submits that the defendant is deaf and dumb, she is not able to hear and talk. Petitioner filed memo dated 24.03.2014 to examine her husband as DW.1. Learned counsel referring to Section 120 of the Act submits that in all civil proceedings husband and wife or spouse of any party to the suit shall be competent witness, there is no need to file power of attorney, in case of husband deposing on behalf of wife. Order III Rule 2 of CPC will not apply, when husband or wife are examined themselves as witnesses in a suit. Learned counsel for the petitioner relies upon a decision of High Court of MP in the case of RAJNI TIWARI Vs. BHAGYAWATI BAI reported in LAWS(MPH) 2012-2-38 and MAYIL TRADERS Vs. THYAGARAJA reported in 2011 (6) CTC 747 and in the case of IBRAHIM FARUKMIYA KARAJGI Vs. KASIM KHAN reported in LAWS(KAR)- 2002-10-38 to contend that under Section 120 of the Act, there is no distinction between the party and witness.

6. Per contra, learned counsel for the respondent submits that the husband of the defendant is not competent person to depose in a suit, particularly, with regard to the Will relied upon by the defendant in her written statement. Further he submits that Section 119 of the Act provides for the witness, who is unable to speak, to give his evidence.

7. The suit is one for partition. There is no dispute that the defendant is deaf and dumb. The defendant filed memo dated 24.03.2014 to indicate that she intends to examine her husband as DW.1 under Section 120 of the Act, as the husband of the defendant is competent to give evidence. Section 120 of the Act reads as follows :

“120. Parties to civil suit, and their wives or husbands. Husband or wife of person under criminal trial. - In all civil proceedings the parties to the suit, and the husband or wife of any party to the suit, shall be competent witnesses. In criminal proceedings against any person, the husband or wife of such person respectively, shall be a competent witness.”

8. The above provision makes it clear that in all civil proceedings, the parties to the suit whether husband or wife of any party to the suit shall be competent witness. In the case on hand, as the defendant is unable to hear and speak, she intends to examine her husband as DW.1 in the suit. The Madhya Pradesh High Court in the case of RAJNI TIWARI Vs. BHAGYAWATI BHAI reported in LAWS(MPH) 2012-2-38 at paragraph 4 has held as follows :

“4. Thus, if all the provisions referred to above are read conjointly, it is apparent that there is no prohibition in law to the effect that a competent witness cannot be permitted to exhibit the document. Under Section 120 of the Indian Evidence Act, 1872 the husband