On behalf of respondent No.11 learned Counsel raises an objection to appearance on the part of the Power of Attorney of the petitioner at the time of hearing this Notice of Motion. The Power of Attorney is the son. The Power of Attorney draws our attention to the judgment of the Supreme Court in the case of Janki Vashdeo Bhojwani & Anr. vs. Indusind Bank Ltd. & Ors. A.I.R. 2005 S.C. 439. The issue before the Supreme Court was whether the Power of Attorney can depose in place of the principal. In that context we may reproduce paragraphs:-

"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. No one can delegate the power to appear 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 vs. Hari Narain & Ors., AIR 1998 Raj. 185. 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."

"19. In the case of Dr. Pradeep Mohanbay v. Minguel Carlos Dias reported in 2000 Vol.102 (1) Bom.L.R. 908, the Goa Bench of the Bombay High Court held that a power of attorney can file a complaint under Section 138 but cannot depose on behalf of the complainant. He can only appear as a witness."

"20. However, in the case of Humberto Luis & Anr. v. Floriano Armando Luis & Anr., reported in 2002 (2) Bom.C.R. 754 on which the reliance has been laced 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 C.P.C. 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)."

We may thereafter quote paragraph 21 where the Supreme Court has laid down the law, which read as follows:-

"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".

2. It is true that what was in issue before the Supreme Court was whether a Power of Attorney can depose on behalf of the petitioner. The issue whether a Power of Attorney can appear, plead and Act was not in issue. The learned Supreme Court, however, has approved the law laid down by the Rajasthan High Court in Shambhu Dutt Shastri which was approved by the same High Court in Ram Prasad. In other words even though that was the ratio of the judgment what can be said is that in respect of the other aspect dealt with in the Rajasthan High Court judgment, that would amount to an obiter dicta.

3. Our attention is also invited to an unreported judgment in the case of Nina Anil Shah vs. Chitralekha Builders & Ors., Notice of Motion No.221 of 2008 in Appeal No.622 of 2007