De-exhibiting of document – There is no provision for de-exhibiting a document which has already been exhibited

Mr. B.S. Walia, J. (Oral) - Revision petition has been filed praying for setting aside order dated 31.05.2018 (Annexure P-4), passed by the learned Civil Judge (Junior Division), Ferozepur de-exhibiting the Special Power of Attorney executed by petitioner No.1 in favour of petitioner No.2 and directing petitioner No.1 to appear for deposition in person.

2. Brief facts of the case leading to the filing of the revision petition are that a civil suit was filed by respondent No.1/plaintiff for a declaration to the effect that he is the owner/co-sharer of land measuring 12 kanals 7 marlas 5 sarsee out of total land measuring 171 kanals 18 marlas on the basis of Will dated 26.05.2007 executed by Baldev Singh S/o Gian Chand i.e. father of respondent No.1/plaintiff, petitioner No.1 and husband of respondent No.22 etc.

3. Petitioner No.1 executed a Special Power of Attorney (Ex.P/1) dated 13.04.2018 in favour of petitioner No.2 to appear on her behalf and to do all acts necessary for the due prosecution of case titled as Rajesh Kumar versus Satpal Singh and others, pending in the Court of Smt. Shikha Goel, PCS, Civil Judge (Sr. Division), Ferozepur. The Special Power of Attorney further conferred powers on the attorney i.e. petitioner No.2 to make statement on behalf of petitioner No.1, to enter into compromise and file any application qua the due prosecution of the case as she was not in a position to attend the Court on account of family traditions. Petitioner No.2 i.e. power of attorney holder of petitioner No.1/defendant No.23 also appeared as a witness in his own individual capacity and was cross-examined qua the evidence led by him in his individual capacity. However, petitioner No.2 was not cross-examined qua the evidence led by him on behalf of the principal i.e. petitioner No.1/defendant No.23.

4. An application was moved by respondent No.1/plaintiff before the Court below for de-exhibiting the Special Power of Attorney dated 13.04.2018 executed by petitioner No.1/defendant No.23 in favour of petitioner No.2 and for directing petitioner No.1/defendant No.23 to make statement, if any, in person before the Court. The application was allowed vide order dated 31.05.2018 by the learned Civil Judge (Jr.Division) Ferozepur, observing that the arguments advanced by the counsel for petitioner No.1 that she was unable to appear in Court on account of being parda nashin lady was not tenable as she could always be examined by way of commission for examination on interrogatories and she would not have to appear in Court as per custom.

5. Learned counsel for the petitioners by relying upon the decision of Hon’ble the Jharkhand High Court in Ram Chandra Prasad Gupta vs. Kaushalya Devi and another 2011 (10) RCR (Civil) 729, contended that the impugned order directing de-exhibition of the Special Power of Attorney executed by petitioner No.1 in favour of petitioner No.2 is legally unsustainable as there is no provision for de-exhibiting a document.

6. Per contra, learned counsel for respondent No.1 contended that an attorney could appear as a witness only in respect of facts which were in his personal knowledge and an attorney could neither depose nor be cross-examined in respect of facts which were in the personal knowledge of the principal. Learned counsel for the respondent No.1 relied upon the decision of Hon’ble the Karnataka High Court in Bhimappa and others vs. Allisab and others 2006 (2) RCR (Rent) 174, wherein a reference has been made to the decision of Janki Vashdeo Bhojwani vs. IndusInd Bank ltd. 2004 (2) RCR (Civil), 613, to contend that no doubt in terms of Order 3 Rule 1 and 2 CPC, holder of attorney is competent to act on behalf of the principal but the word act mentioned in Order 3 Rules 1 and 2 CPC was confined only qua the act done by the power of attorney holder in exercise of powers granted by the instrument. In other words, if the power of attorney holder had done some act in pursuance of grant of power of attorn