The court affirmed the Trial Court's power to require plaintiff's presence or affidavit under CPC, ensuring clarity in proceedings despite the execution of a relinquishment deed.

JUDGMENT

Tushar Rao Gedela, J. (ORAL)

[The proceeding has been conducted through Hybrid mode]

CM APPL. 53645/2022 (for exemption)

1. Exemption is allowed, subject to all just exceptions.

2. The application is disposed of

CM(M) 1386/2022, CM APPL. 53644/2022 (for stay)

3. Mr. S.K. Gupta, learned counsel appearing for the petitioner assails the order dated 22.11.2022, whereby the learned Trial Court has directed the learned counsel to communicate to the plaintiff that he has to either join the Court through VC or send an affidavit to that Court on the issue that they have instructed the counsel to continue with the suit even after executing the Relinquishment Deed, as aforesaid.

4. Learned counsel appearing for the petitioner submits that the learned Trial Court has overlooked the provisions of Order 3 Rule 4 of CPC, 1908, whereby the communication between the counsel and the client is sanctimonious and cannot be interfered by any other authority or even a Court of law.

5. Mr. B.B. Gupta, learned Senior Counsel appearing for the respondent on advance notice draws attention of the Court to page 21 of the paper book, which is extracted hereunder:

"Initially it was contended on behalf of the plaintiff that Smt. Sushma Gupta had no power of attorney on behalf of LRs of plaintiff to execute such a relinquishment deed.

Upon this, the court felt it appropriate to direct to present the plaintiff before the court either through VC or in person.

Initially on behalf of the plaintiff, ld. Counsel stated that by both the modes, plaintiff cannot appear and then the counsel for plaintiff stated that the power of attorney in favour of the wife of deceased plaintiff was genuine and she had genuinely executed relinquishment deed in favour of the defendant no. 1 but the said relinquishment deed was a nullity in law and therefore, suit for partition should proceed.

On being inquired firstly how this question can be decided in suit for partition once plaintiffs had relinquished their shares and is it the instruction of the plaintiff upon which the counsel is continuing with the suit, no concrete answer has come forth. Thus, the court now directs ld. Counsel for plaintiff to communicate to the plaintiffs that they have to either join the court through VC or send an affidavit to this court that they have instructed the counsel to continue with the suit even after executing the relinquishment deed as aforesaid.

Put up for report on this point on 15.12.2022."

6. Based on the above, learned Senior Counsel submits that learned Court after appreciating the fact situation as obtaining on that day, felt it appropriate to examine the plaintiff, which power, in his submission, is within the confines of the Code of Civil Procedure and, therefore, learned counsel for the petitioner possibly cannot have any objections to that.

7. Mr. S.K. Gupta, submits that his clients have not been responding to his communications and would, therefore, seek four week's time to take appropriate steps in that regard.

8. After having heard, learned counsel for both the parties this Court is of the opinion that provisions under Order 3 Rule 4 of CPC, 1908 have not at all been tinkered with by the learned Trial Court and it is only its subjective satisfaction, which has arisen due to the peculiar situation, that it wants to examine the plaintiff/ Raghav Gupta. The Trial Court under Order 10 of the CPC, 1908, has powers which are wide enough to examine the parties on any issue which arises during the course of the trial to satisfy itself on the query so raised.

9. Surely, the counsels to the parties cannot have any objection thereto, specially when the Court itself wants to examine the parties.

10. In view of the above, this Court does not