( 1 ) BY this petition, the petitioner is aggrieved by order dated 12-12-2005, passed by 9th Additional District Judge, bhopal in Civil Suit No. 5-A/2005, allowing the application of respondent No. 1/plaintiff under Order 18 Rule 4 read with Order 3 Rules 1 and 2 of the Code of Civil Procedure (for short the 'cpc' ).

( 2 ) BRIEF facts of the case are that respondent No. 1 Saifia Education Society, Bhopal filed a suit against petitioner Mohd. Mansur ali Khan and respondent Nos. 2 and 3, as the successors to Smt. Begum Sazida Sultan, former ruler of Bhopal as her legal heirs, since Late Smt. Begum Sazida Sultan had entered into an agreement to sell land bearing khasra Nos, 47, 48, 50, 51 admeasuring 35. 70 Acres at Bhopal, with respondent no. 1 Saifia Education Society by agreement dated 7-2-1985. However, the sale-deed could not be executed due to the death of smt. Begum Sazida Sultan and respondent no. 1 Saifia Education Society filed a suit before the 9th Additional District Judge, bhopal for specific performance requiring the defendant petitioner and respondent nos. 2 and 3 to execute the sale deed in respect of the land. The suit was registered as r. C. S. No. 104/2003 and written statement was also filed on behalf of the petitioner and petitioners/defendants on 29-4-2003.

( 3 ) PETITIONER Mohd. Mansur Ali Khan, however, appointed Rashidul Hasan Khan as his power of attorney holder to defend the suit on his behalf and Shri Rashidul hasan Khan filed affidavit under Order 18 rule 4 CPC, dated 2-9-2003. Respondent education Society filed application dated 23-8-2005 under Order 3 Rules 1 and 2 read with Order 18 Rule 4 CPC, stating that the petitioner be summoned to Court for the purposes of being examined. Reply opposing the application was filed by the defendant stating that the respondent plaintiff had not objected to the competence of power of attorney holder filing affidavit under order 18 Rule 4 CPC, on 8-9-2004, and had never raised any objection to the competence of the witness till 23-8-2005,and that under section 118 of the Evidence Act, the power of attorney holder was a competent witness who could depose on his behalf before the trial Court.

( 4 ) COUNSEL for the petitioner also stated that the petitioner had categorically stated in the written statement that he had no knowledge of the transaction that had taken place between his Late Mother and respondent Society, therefore, it was hot necessary for the petitioner to appear in Court to merely state such a fact and the learned trial court had erred in holding that the presence of the present petitioner was necessary for adducing evidence, since the power of attorney holder had no personal knowledge in respect of the agreement executed on 7-6-1985 and could not depose in place of defendant/petitioner Mohd. Mansur AH khan.

( 5 ) COUNSEL for the petitioner relied on bashir v. Smt. Hussain Bano reported in 2005 (2) MPHT 390, whereby while deciding civil Revision No. 395/2003, learned single Judge while considering whether the landlady who had filed a case for eviction of suit premises, being 80 years of age, had contended that she required the suit accommodation bona fide for herself and members of her family, had held that the landlady herself was not required to prove the bona fide need, it could be deposed by her holder of power of attorney and non-examination of the plaintiff landlady was not fatal.

( 6 ) COUNSEL for the petitioner has stated that the plaintiff respondent is making futile attempts to bring the petitioner in Court, when there is already First Appeal No. 296/ 2000 pending in this High Court, regarding the property in question, and since it is part of the entire property that has been impugned in the First Appeal and there is a' stay order passed by this Court, regarding the alienation of the same.

( 7 ) COUNSEL for the respondent plaintiff on the other hand pointed that under Order 3, Rule 1, CPC, any appearance, application or act in or to any Court,

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