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IN THE HIGH COURT OF KERALA AT ERNAKULAM
Dr, Kauser Edappagath, J
SMITHA – Appellant
Versus
ANIL KUMAR – Respondent
OP(C) 154/2024
Based on the provided legal document, the key points are as follows:
The case concerns the admissibility of evidence presented by a non-litigating spouse on behalf of a litigating spouse in a civil proceeding (!) (!) .
The petitioner, the plaintiff, sought permission for her husband to adduce evidence on her behalf, which was initially rejected by the trial court (!) (!) .
The trial court's reasoning was that a person cannot give evidence on behalf of another, and that the husband could only be cited as a witness and examined as such (!) .
The appellate court emphasized that under the relevant provisions of the Evidence Act, a non-litigating spouse is competent to testify for the litigating spouse without requiring a separate power of attorney (!) (!) .
The court clarified that the competency of a witness refers to their capacity and qualification to give evidence, and that Section 120 of the Evidence Act permits spouses to testify for each other in civil cases without additional authorization (!) (!) .
The appellate court found that the trial court failed to consider Section 120 of the Evidence Act, which led to an unjustified rejection of the petition. Consequently, the order was set aside, and the petition was allowed (!) (!) .
The decision underscores that a spouse's testimony is admissible and sufficient to support the case without the need for a power of attorney or specific authorization, provided the spouse is competent under the law (!) (!) .
Please let me know if you need further analysis or specific legal advice regarding this case.
IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE DR. JUSTICE KAUSER EDAPPAGATH TH TUESDAY, THE 18 DAY OF JUNE 2024 / 28TH JYAISHTA, 1946 OP(C) NO. 154 OF 2024 IA 3/2023 IN OS NO.106 OF 2010 OF SUB COURT, MANJERI PETITIONER/PETITIONER/PLAINTIFF:
SMITHA, AGED 53 YEARS, D/O VALLIL CHANDRASEKHARAN, KANNACHATH VEEDU, MANJERI AMSOM/ DESOM, MANJERI P.O., MALAPPURAM DISTRICT, PIN - 676121 BY ADVS.VINOD MADHAVAN M.V.BOSE, NISHA BOSE SANIYA C.V.
RESPONDENTS/RESPONDENTS/DEFENDANTS:
1 ANIL KUMAR, AGED 54 YEARS, S/O. AMBUJAKSHI AMMA, PALASSERI PAKKOTTIL, PULLANOOR DESOM, VALLUVAMABRAM AMSOM, ERNAD TALUK, MALAPPURAM DISTRICT, PIN - 673642
2 SHAJIB, AGED 47 YEARS, S/O. POOLAKKAPARAMBIL ABOOBACKER, MANJERI AMSOM DESOM, ERNAD TALUK, PIN - 673642
3 MUHAMMED MUNEER. K, AGED 58 YEARS, S/O. CHEKKU KOKKADAN, KOKKADAN HOUSE, PADIKKUNNU, NILAMBUR AMSOM DESOM, NILAMBUR TALUK,PIN - 679329 THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON
18.06.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
“CR”
J U D G M E N T
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 production and examination of witnesses shall be regulated by the law and practice for the time being relating to civil and criminal procedure respectively, and, in the absence of any such law, by the discretion of the Court. How and in what order the witnesses are to be produced and examined and the method of recording the evidence is regulated by the provision of Order 18 of the Civil Procedure Code (for short CPC). Rule 1 of Order 18 lays down general rule of procedure that the plaintiff has the right to begin unless the defendant admits the facts alleged by the plaintiff and contends that either in point of law or on some additional facts alleged by the defendant, the plaintiff is not entitled to any part of the relief which he seeks, in which case the defendant has the right to begin. Order 18 Rule 3-A provides that where a party himself wishes to appear as a witness, he shall so appear before any other witness on his behalf has been examined, unless the Court, for reasons to be recorded, permits him to appear as his own witness at a later stage. Order 16 also deals with the summoning and attendance of witnesses. Order 3 Rules 1 and 2 CPC empower the holder of power of attorney to appear and act in any court in respect of an act required or authorised by law to be made or done by a party in such court. Thus, a power of attorney can give evidence on behalf of a party in civil proceedings. However, he cannot depose in place and instead of principal. It is trite that the power of attorney holder cannot depose about the facts which are within the personal knowledge of the principal or which are not within his personal knowledge (Janki Vashdeo Bhojwani and Another v. Indusind Bank Ltd. And others (2005) 2 SCC 217 ] andMan Kaur (Dead) by Lrs. v. Hartar Singh Sangha
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