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HIGH COURT OF KERALA
Kauser Edappagath, J
SMITHA – Appellant
Versus
ANIL KUMAR – Respondent
No, the husband of a plaintiff cannot adduce evidence on behalf of plaintiffs other than his spouse. Section 120 of the Evidence Act specifically provides competency for a non-litigating spouse to testify in place and instead of the litigating spouse, including facts within the knowledge of that spouse, without needing written authority or power of attorney. (!) (!)
This spousal competency is distinct from general rules for other persons, such as power of attorney holders, who may appear or act but cannot depose about facts within the personal knowledge of a principal or substitute fully in their place. (!) (!)
For non-spouses, including other plaintiffs, no such permission exists under the discussed provisions, and evidence must follow standard procedures for witnesses under Orders 16 and 18 of the CPC. (!) (!)
The rejection of the request for examining the husband of the plaintiff in the trial of a suit, for and on behalf of the plaintiff, is under challenge in this original petition.
2. The petitioner is the plaintiff, and the respondents are the defendants in O.S.No.106/2010 on the files of the Sub Court, Manjeri (for short 'the trial court'). The suit is to declare two registered cancellation deeds executed by the 1st defendant as null and void and for a permanent prohibitory injunction.
3. When the case was posted for evidence, the petitioner filed I.A.No.3/2023 (Ext.P1) to permit her husband to adduce evidence for and on her behalf. The trial court dismissed the application as per the impugned order.
4. I have heard Sri. Vinod Madhavan, the learned counsel for the petitioner. There is no appearance for the respondents.
5. The trial court dismissed Ext.P1, holding that it is not possible to permit any person to give evidence on another person's behalf. It was further observed that the husband could be cited as a witness and examined as the plaintiff's witness.
6. Section 135 of the Evidence Act deals with the order of production and examination of witnesses. It lays down that the
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