The court emphasized the importance of examining the defendant on commission due to the specific plea of fraud and the equity of justice, as per Section 118 of the Indian Evidence Act.

Bakhshish Kaur, J. (Oral) - The challenge in this revision petition is to the impugned order, whereby the trial Court has declined the prayer of the petitioner for examining the defendant-petitioner on commission, who is residing at Bombay.

2. The facts of the case are not much in dispute. Concededly, the petitioner had appointed Smt. Anuradha Saini as attorney by way of executing power of attorney on October 5, 1995 at Bombay. The attorney has already appeared as DW3 on August 18, 1997 and her statement was concluded on September 8, 1997, as is made out from the impugned order. The plaintiff-respondents had closed the evidence on August 26, 1996. Since Shri Bhupinder Kumar alias Bhupinder Saini, plaintiff, now respondent, has filed a suit for possession by way of specific performance of the agreement to sell the property in dispute against Smt. Kaushalya Devi and others and that Smt. Kaushalya Devi has not admitted the execution of the alleged agreement to sell, as according to her, it is the result of fraud and misrepresentation of facts, therefore, in order to prove the particulars of fraud only the petitioner can state the true facts and not the attorney. Learned counsel for the petitioner to support his arguments has placed reliance on Ram Prasad v. Hari Narain and others, 1998(3) CCC 539 (Rajasthan).

3. This apart, the power of attorney executed by Smt. Kaushalya Devi in favour of Smt. Anuradha Saini has been read by the learned Counsel for respondent No. 1. It does contain the details of the acts which are required to be done by the attorney on behalf of Smt. Kaushalya Devi and there is a long range of acts to be performed by her attorney, including filing and signing of the various documents etc. and also to enter into compromise, but it nowhere provides that she has been authorised to appear as a witness on her behalf. Thus, taking into consideration these facts and also having regard to the fact that a specific plea of fraud has been raised by Smt. Kaushalya Devi, defendant, now petitioner, therefore, she is within her right to be examined as a witness. She is stated to be 80 years old and residing at Bombay, therefore, the equity of justice demands that she may be examined on commission, particularly having regard to Section 118 of the Indian Evidence Act.

4. Since the application has been filed at a belated stage, particularly, after the evidence was closed, therefore the other side requires to be compensated.

In view of the above, this revision petition is allowed. The impugned order is quashed. The recording of the petitioner on commission is allowed, subject to payment of costs of Rs. 2000/-.

The parties through their counsel are directed to appear before the trial Court on 28.3.2001.

Revision allowed.