With the consent of the parties the matter is finally heard.

1.

The present petition has been filed assailing the order dated

16.09.2019, passed in RCS No.41A/2018, by First Civil Judge

Class-II, Pipariya, District Hoshangabad; whereby, the application

filed by the petitioners under Order 3 Rule 1 of CPC seeking

permission to record the evidence through his registered Power of

Attorney i.e. his son Shusheel Kumar Sharma was rejected.

2.

It is submitted that the petitioners/plaintiffs filed a civil suit

for declaration of title and permanent injunction with respect to the

suit property bearing Khasra No.96, Area being 8.36 Acres against

the respondent no.1, which is a joint property of a Hindu Undivided

Family, but the Survey No.96/1, Area being 1.529 Hectares out of

the said property has wrongly been registered in the name of the

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respondent no.1/defendant no.1. He has also sought the relief of

permanent injunction to restrain the respondent no.1 to alienate or

transfer the said property in some other names. On summons being

issued, the respondent no.1/defendant no.1 appeared in the civil suit

and filed the written statement denying all the averments and has

further taken a plea that the plaint is not being filed within limitation

and prayed for dismissal of the civil suit. During the pendency of the

civil suit, the plaintiff no.1 Rameshchandra executed a registered

Power of Attorney in favour of his son Shusheel Kumar Sharma

pointing out that he is aware of all the aspects of the disputed land

and the dispute going on between the parties and as he is his son;

therefore, he is in a position to depose before the learned trial Court.

On the basis of such registered Power of Attorney, an application

under Order 3 Rule 1 of CPC has been filed before the trial Court

praying for conducting the proceedings of the Civil Suit to the

Power of Attorney holder i.e. his son and further prayed to record

the evidence through his Power of Attorney to know everything

about the dispute and the disputed property.

3.

It is submitted that it is a registered Power of Attorney and the

son of the petitioner/plaintiff is the Power of Attorney holder, who is

well aware of all the aspects of the case; therefore, he can very well

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depose before the trial Court in place of the plaintiff no.1. Placing

reliance upon the judgment passed by the Coordinate Bench in the

case of Bash

i r Vs. Smt. Hussain Bano

reported in 2005 (2)

M.P.L.J. 230; wherein, it was observed that the Power of Attorney

holder a member of family can depose on her behalf regarding her

bonafide need. It was a case of eviction and the permission was

granted to the Power of Attorney to record the evidence on behalf of

principal plaintiff. Placing further reliance upon the judgment passed

in the case of Vimla Devi Vs. Dulichand reported in 1994 (1)

MPJR 144; wherein, it was held that the husband being the Power

of Attorney holder has appeared and deposed in place of his wife

before the trial Court was accepted by the learned trial Court and it

was observed that the non examination of the plaintiff was not fatal

for the case. It is argued that as the son is aware of all the facts and

circumstances of the present case and also well aware of the

disputed property; therefore, he can very well depose in place of the

original plaintiff, who is aged about 80 years and is very weak to

approach the Court for deposition. Therefore, the order passed by

the learned trial Court rejecting the application is per se illegal.

4.

Per contra, counsel appearing for the respondents have

vehemently opposed the contention and supported the impugned

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order stating therein that the learned trial Court has passed a well

reasoned and a justified order rejecting the application. It is

submitted that under Order 3 Rules 1 and 2 of CPC which empowers

the Power of Attorney holder to act on behalf of the principal

plaintiff is only with respect to the act or proceedings which h