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2019 Supreme(Mad) 2852
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
S. S. SUNDAR, J.
C. V. Rambabu, S/o. Late C. P. Venkatajalapathy, Rep. by his wife C. R. Lalitha, Power Agent Door No.54, New No.135, South Perumal Maistry Street, Madurai Town. –Petitioner
Versus
V. S. Chandrasekaran & Ors. – Respondents
C.R.P(PD)(MD)No.1582 of 2014, M.P.(MD) No.1 of 2014
Decided On : 01-03-2019
Advocate Appeared:
For the Petitioner: Mr. M. Saravanan
For the Respondent: Mr. M. Rajaraman
Headnote:
Constitution of India,1950 - Article 227 - Civil Procedure Code,1908 - Section 151 - Rule 3-A - Order 18 - Plaintiff filed suit originally on file of District Court Madurai Town same has now been transferred Additional Subordinate Court Madurai and re-numbered said suit was for a declaration that sale deed executed by plaintiff in favour first defendant in respect of suit property is sham and nominal and consequential permanent injunction restraining first defendant from interfering with the peaceful possession and enjoyment of suit property by the plaintiff suit is also for injunction restraining first defendant from alienating the suit property - Plaintiff filed a petition Order and Section C.P.C. to grant permission to plaintiff to examine his mother as first witness before examining wife who is also his Power of Attorney Agent as a witness - It is be noted that suit itself was filed by plaintiff through his wife as Power of Attorney agent -Held, Court is required to give reasons and obviously reasons must be relevant Counsel appearing for respondents however pointed out that suit has been filed by plaintiff through his wife who is the power of attorney agent of plaintiff - It is also stated that in application filed before lower Court the affidavit and petition was filed by the power of attorney agent and prayer was to grant permission to petitioner to examine her mother law - This is only a mistake by inadvertence Counsel for respondents submitted that wife who is only a power of attorney agent of revision petitioner cannot be permitted to depose on behalf of her husband as she does not intent or establish that she is conversant with Since law is settled that a power of attorney agent cannot depose on behalf of his or her principal Counsel for revision petitioner on instructions submitted that plaintiff should be permitted examine him as a witness on side of plaintiff instead of his wife - Though such plea is not taken before trial Court is inclined to accept case of revision petitioner for more than one reason - It is now brought to notice of this Court that after dismissal plaintiff has not examined anyone other than is further submitted that the defendants have also examined their witnesses - Petition dispose
ORDER :
PRAYER: Civil Revision Petition is filed under Article 227 of the Constitution of India, praying to set aside the fair and decretal order dated 09.12.2013 passed in I.A.No.44 of 2013 in O.S.No.421 of 2009, on the file of the II Additional Subordinate Judge, Madurai and allow the present Civil Revision Petition.
1. This Civil Revision Petition is preferred by the plaintiff in the suit in O.S.No.421 of 2009 on the file of the II Additional Sub Judge, Madurai.
2. The brief facts that are necessary for the disposal of this Civil Revision Petition are as follows:
2.1.The revision petitioner, as plaintiff, filed the suit in O.S.No.632 of 2001 originally on the file of the District Munsif Court, Madurai Town. The same has now been transferred to II Additional Subordinate Court, Madurai and re-numbered as O.S.No.421 of 2009. The said suit was for a declaration that the sale deed executed by the plaintiff in favour of the first defendant on 05.11.1990 in respect of the suit property is sham and nominal and consequential permanent injunction restraining the first defendant from interfering with the peaceful possession and enjoyment of the suit property by the plaintiff. The suit is also for injunction restraining the first defendant from alienating the suit property. The plaintiff filed a petition in I.A.No.44 of 2013 under Order 18, Rule 3-A and Section 151 of C.P.C. to grant permission to the plaintiff to examine his mother Smt. Mahalakshmi as the first witness before examining plaintiff's wife who is also his Power of Attorney Agent as a witness. It is to be noted that the suit itself was filed by the plaintiff through his wife as Power of Attorney agent.
2.2. The said application in I.A.No.44 of 2013 was opposed by the second defendant mainly on the ground that permission cannot be granted as the plaintiff/petitioner has filed the petition after the examination of P.W.1 on his side. It is not in dispute that the mother of the plaintiff was examined as P.W.1. Accepting the contention of the respondents that the application filed after the examination of P.W.1 is not maintainable, the lower Court dismissed the petition. Aggrieved by the order of the lower Court, the above Civil Revision Petition has been preferred by the plaintiff.
3. A perusal of the order passed by the lower Court in I.A.No. 44 of 2013 shows that the application under order 18, Rule 3-A of CPC was dismissed only on the ground that the said application has been filed after examining the plaintiff's mother as P.W.1 on the side of the plaintiff on 06.12.2012. The lower Court further observed that the plaintiff has examined other witness even before obtaining permission from the Court and that therefore, there is no question of granting any permission in the circumstances of the case. Sum and substance, the trial Court was of the view that the petition has become infructuous.
4. This Court is unable to subscribe to the view expressed by the lower Court in dismissing the Interlocutory Application in I.A.No.44 of 2013. The lower Court has not understood the scope of Order 18, Rule 3A of C.P.C. and the inherent power of Court under Section 151 C.P.C. In the present case, the suit is filed by the plaintiff through his wife as Power of Attorney Agent. The plaintiff has filed a petition under Order 18, Rule 3A of C.P.C. and simultaneously made P.W.1 available for examination. Therefore, when the petition was presented, already P.W.1 was examined after filing of proof affidavit. P.W.1 is the mother of plaintiff and mother-in-law of the power of attorney agent of the revision petitioner. The object of permitting the plaintiff or defendant to examine any other witness before examining the party himself or herself as a witness is for convenience of parties and no strict formula need to be prescribed. Though a party himself is required to appear as a witness, the Court can permit any one of the parties to appear as his own witness at a lager stage. The lower Court has dismis
