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IN THE HIGH COURT OF BOMBAY
(PANAJI BENCH)
R.M.S. Khandeparkar, J.
Shri Humberto Luis another..... Petitioners.
Versus
Shri Floriano Armando Luis another..... Respondents.
Civil Revision Application No. 100 of 1999, decided on 8-9-1999.
Advocates appeared :
J.E. Coelho Pereira, Sr.A. with S. Karpe, for the petitioners.
Sudesh Usgaonkar, for the respondents.
Order III, Rule 1-Direction by Trial Court to the plaintiff to step in the witness box in order to discharge the burden of the issues upon him can be given only in justifiable cases by speaking order and not as a matter of course.
Order III, Rule 1, Order XVIII, Articles 2 and 3-A and Evidence Act, Sections 118 and 60- There is no restriction imposed upon the holder of power of attorney of a party to the suit to depose for and on behalf of the principal giving such power-The competency of such person to depose on behalf of the party to the litigation has not been curtailed in any manner by the provisions contained in Order III, Rule 1 or Rule 2 and Order XVIII, Rule 3-A of the Civil Procedure Code.-In terms of Order III of the Code of Civil Procedure the parties to the litigation are authorised to be represented by their agents for various purposes. Further, the provision of Order XVIII, Rules 2 and 3-A, Civil Procedure Code clearly disclose that it is neither mandatory for the party to litigation to appear in person in order to state his case before the Court nor it is necessary to examine himself in support of his case. It is entirely in his discretion to examine himself as the witness or, not in case he desires to examine himself, he should appear before examining other witnesses on his behalf, unless otherwise specifically permitted by the Court for justifiable reasons. The provisions contained in Rule 2 to the effect that the party shall state his case and produce his evidence in support of the issues which he is bound to prove are to be interpreted harmoniously and without ignoring the other provisions of the Civil Procedure Code. It cannot be forgotten that the provisions of Civil Procedure Code are related to the procedure in the Court and it is always to be remembered that the procedure is meant to assist the Court to arrive at a correct decision in a matter before it on the basis of all the material placed before it. The rules of procedure cannot be interpreted so as to create undue hardship to the parties to the proceedings in rendering necessary assistance to the Court for arriving at the truth. Bearing in mind the well settled principle of law that the procedural law is to facilitate the course of substantive justice and reading harmoniously the provisions contained in Rule 1 of Order III of Civil Procedure Code with the provisions in Order XVIII thereof, it is clear that there is no restriction imposed upon the holder of power of attorney of a person to depose on behalf of the person giving such power. The competency of such person to depose on behalf of the party to the litigation has not been curtailed in any manner by the said provisions of law. Section 118 of the Evidence Act clearly provides that all persons shall be competent to testify unless the Court considers that they are prevented from understanding the questions put to them, or from giving rational answers to those questions, by tender years, extremeo old age, disease, whether of body or mind, or any other cause of the same kind. Therefore, it cannot be concluded that the provisions contained in Order III, Rule 1 of Civil Procedure Code would restrict the powers of holder of Power of Attorney to depose on behalf of the plaintiff in relation to the matter in issue before the Court. AIR 1998 Raj 185 Diss., AIR 1959 Raj 35, AIR 1959 Bom 21, AIR 1955 Bom 262, Dist., AIR 1978 SC 484, Ref.
2.The facts relevant for the decision are that the petitioners have filed a suit against the respondents for cancellation of a gift deed in relation to and for partition of the suit property. The suit is contested by the respondents. When the matter came up for hearing, the plaintiffs in the suit were sought to be represented by their Power of Attorney as the witness on their behalf by virtue of a deed of Power of Attorney executed by the plaintiffs in favour of such person. After the examination-in-chief of such person being recorded partly, the matter was adjourned to further date on which day, the respondents who are the defendants in the suit sought to raise an objection that the holder of Power of Attorney is not entitled to depose for and on behalf of the plaintiffs. Reliance was sought to be placed on a decision of the Rajasthan High Court in the matter of (Ram Prasad v. Hari Narain and others)1, reported in A.I.R. 1998 Rajasthan 185.
3.The Trial Court placing reliance upon the judgments in the matter of (Samdukhan v. Maddanlal)2, reported in A.I.R. 1959 Rajasthan 35, (The Anglo French Drug Co. Pvt. Ltd. v. R.D. Tinaikar)3, reported in A.I.R. 1959 Bom. 21 and in the matter of (A.S. Patel and others v. National Rayon Corporation Ltd.)4, reported in A.I.R. 1955 Bom. 262 held that adducing of evidence on behalf of the principal on the strength of the Power of Attorney amounts to pleading the case for the party and the P.W. 1, having entered the witness box on behalf of the plaintiffs in capacity of holder of the Power of Attorney, has actually performed the act of pleading for and on behalf of the plaintiffs.
4.Upon hearing Shri J.E. Coelho Pereira, Senior Advocate appearing for the petitioners and Shri Sudesh Usgaonkar, appearing for the respondents and on perusal of the records and various decisions cited across the bar, it is evident that in terms of order III of Code of Civil Procedure, the parties to litigation are authorised to be represented by their agents for various purposes. In terms of Rule 1 thereof any appearance, application or act in or to any Court, required or authorised 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 recognised agent, or by a pleader appearing, applying or acting, as the case may be, on his behalf, provided that in any such appearance shall, if the Court directs, be made by the party in person. In terms of Rule 2, the recognised agents of the parties by whom such appearances, applications and acts may be made or done are the persons holding Powers of Attorney, authorising them to make and do such appearances, applications and acts on behalf of such parties, as also in case persons carrying trade or business for and in the names of parties not resident within the local limits of the jurisdiction of the Court within which limits the appearance, application or act is made or done in the matters connected with such trade or business only, where no other agent is expressly authorised to make and do such appearances, applications and acts. In terms of Rule 3, process served on the recognised agent of a party shall be as effectual as if the same had been served on the party in person, unless the Court otherwise directs. It also provides that the provisions for the service of process on a party to a suit shall apply to the service of process on his recognised agent.
5.There can be no dispute that this Court in the m
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