The main legal point established is that the power of attorney holder must explicitly state on oath that they are appearing as a witness on behalf of the principal, and the party must appear as a witness before other witnesses under specific provisions of the CPC.

Vivek Rusia, J.

With the consent of parties, petition is heard finally.

2. Plaintiff/petitioner has filed the present petition being aggrieved by the order dated 30.03.2016 by which plaintiff has been directed to file an affidavit under Order 18, Rule 4 CPC as evidence in chief and thereafter file an affidavit of other witnesses.

3. Plaintiff filed a suit against the defendant for eviction and arrears of rent. After filing written statement issues were framed. Plaintiff filed an affidavit under Order 18, Rule 4 CPC of her husband as PW/1. On filing the said affidavit the defendant raised an objection that the husband of the plaintiff is having no power of attorney or not authorised by the plaintiff to adduce evidence on her behalf and if she is not keeping good health her statement can be recorded by way of commission. The said objection was taken by way of application under Section 151 CPC. The said application was replied by the plaintiff submitting that all the documents filed in the plaint were executed by her husband and she has given consent to appear as witness and prayed for rejection of the application. Learned trial Court vide order dated 30.03.2016 upheld the objection taken by the defendant and directed the plaintiff to submit her affidavit under Order 18, Rule 4 CPC.

4. Shri Ansari on behalf of the petitioner submits that under Section 120 of the Indian Evidence Act the husband or the wife, as the case may be, is a competent witness and there is no need to execute the power of attorney. He has placed reliance over the judgment passed by this Court in the case of Rajni Tiwari (Smt.) v. Bhagyawati Bai reported in 2012 (IV) MPJR 21 and prayed for quashing of the order impugned.

5. Per contra, Shri Sohani, learned counsel for the respondents submits that under the provisions of Order 18, Rule 3A where a party himself wishes to appear as a witness, he shall so appear before any other witness. He submits that either plaintiffs who gave power of attorney to her husband to give evidence on her behalf or she should file her own affidavit. He has drawn attention to the affidavit of Ghanshyamdas Sanghi in which he has not stated that he is having power of attorney on behalf of the plaintiff to adduce evidence on her behalf.

6. I have heard learned counsel for the parties.

7. By way of affidavit under Order 18, Rule 4 CPC the husband of the plaintiff has stated that plaintiff is not keeping good health and unable to walk. He has made communication in relation to the tenancy with the defendant and he is trying to exhibit all the communications but he has not stated that whether he is giving evidence in place of plaintiff either on power of attorney or authorization by his wife. The Apex Court in the case of Janki Vashdeo Bhojwani and another v. Indusind Bank Ltd. and others reported in 2005 (2) SCC 217 has held that Order 3, Rule 1 & 2 CPC empowers the holder of power of attorney to act on behalf of the principal. The word "act" would not include deposing in place and instead of principal. Para 13 of the said judgment is reproduced herein below:

"13. Order 3, Rules 1 and 2, CPC empowers the holder of power of attorney to "act" on behalf of the principal. In our view the word "acts" employed in Order 3, Rules 1 and 2 CPC confines only in respect of "acts" done by the power of attorney holder in exercise of power granted by the instrument. The term "acts" would not include deposing in place and instead of the principal. In other words, if the power of attorney holder has rendered some "acts" in pursuance to power of attorney, he may depose for the principal in respect of such acts, but he cannot depose for the principal for the acts done by the principal and not by him. Similarly, he cannot depose for the principal in respect of the matter which only the principal can have a personal knowledge and respect of which the principal is entitled to be cross-examined."

8. According to the Apex Court the power of attorney holder cannot