O R D E R:

This Civil Revision Petition is filed under Article 227 of the Constitution of India against the order and decree dated 24.04.2023 dismissing I.A.No.255 of 2023 in O.S.No.67 of 2015 on the file of the Court of II Additional District Judge, Kadapa, at Proddatur, filed by the plaintiff under Section 120 of the Evidence Act r/w Section 151 of CPC to grant permission to the petitioner/plaintiff to be represented by her husband, by name, Bysani Chinna Vekata Narayana and examine him as a witness and mark the documents on behalf of the petitioner.

2. The petitioner filed the suit for specific performance against the respondents No.1 and 2. The petitioner stated that the suit transaction was witnessed by her husband since the beginning and that she, being a house wife and is suffering from severe depression, had given power of attorney dated 23.01.2023 in favour of her husband to depose on her behalf and to mark the document on her side since he is acquainted with the facts of the suit.

3. The petition was opposed by the defendants by filing counter of 1st respondent stating that the petition is filed only to drag on the matter and that in fact, the petitioner is hale and healthy and she can give evidence and further that the petitioner had not filed any document in proof of her ill- health. It is further stated that the cross examination of the petitioner is very essential in the suit and without her examination, truth would not come out and this petition is filed intentionally only to avoid her cross examination. It is further stated that the petitioner filed the petition under Section 120 of the Indian Evidence Act, whereas the procedure contemplated under Order III Rule 2 CPC and whereas Section 121 of Indian Evidence Act is different, and therefore, the petition is not maintainable.

4. After hearing both sides, the trial Court dismissed the petition holding that no medical certificate was filed in proof of her ill health and that she contested the suit since 2015 and that the petition was filed explicitly only to drag on the matter, further without any bona fides, when the matter was earlier posted on 02.01.2023 and adjourned to 20.01.2023 with a condition to dismiss the suit if the trial was not commenced. 5. Aggrieved by the order, this revision is filed.

The learned counsel for the petitioner submitted that as per Section

120 of the Indian Evidence Act, the husband is entitled to give evidence on behalf of his wife who is the plaintiff, but the trial Court erroneously dismissed the petition only with the observation that the petition was filed to drag on the proceedings, but it failed to note that the plaintiff had given a GPA in that regard to her husband due to her ill-health.

6. The learned counsel for the petitioner placed reliance on the decision of the High Court at Goa in the case of Humberto luis and another Vs Floriano Armando Luis and another1 and the decision of the High Court of Chattisgarth at Bilaspur in Shail Devi Saraf Vs Janaki Bai Gupta2 in support of the contention that even a power of attorney can give evidence on behalf of the principle under Order III Rule 2 CPC, irrespective of the capacity to give evidence under Section 120 of the Evidence Act.

1 200(1) Mh.L.J. 690

2001 SCC Online Chh 67

7. On the other hand, the learned counsel for the respondents no.1 and 2 submitted that the husband of the petitioner cannot be permitted to give evidence on behalf of the petitioner, but he may give evidence in his individual capacity as a witness but not for the party. It is further argued that unless the plaintiff gives evidence before the Court, there will not be any occasion for the defendants to cross examine the plaintiff to elicit the truth. It is pertinent to refer Section 120 of the Evidence Act which reads as follows:

“In all civil proceedings the parties to the suit, and the husband or wife of any party to the suit, shall be competent witnesses. In criminal proceedings against any person, the husband or wi