CAV JUDGMENT

Date : 03-05-2023 Heard learned counsel for the parties.

2. This Civil Miscellaneous Application has been filed under Article 227 of the Constitution of India against the order dated 29.05.2018 passed by learned Sub Judge, Bagaha, West Champaran in Title Suit No. 7 of 2014, whereby and whereunder the learned Court has granted permission to the respondent No. 2 to adduce evidence on the basis of power of attorney of original plaintiff.

3. The plaintiff / respondent 1st set filed suit bearing Title Suit No. 7 of 2014 for declaration of right and title over the suit land and also for declaration that the sale deed dated

18.07.2013 is null and void and not binding on the plaintiff. The claim of the plaintiff is that she is the owner of the suit land which was allotted to her in partition. The plaintiff has right and title over the suit land, hence sale deed executed by defendant No.1 to defendant Nos. 2 and 3 is illegal and not valid. 4. Defendants appeared in the case and filed written statement and denied the statement of the plaint. The case of the defendants is that in partition the suit land was allotted to the share of defendants alongwith some other lands and the said land was sold to defendant Nos. 2 and 3 on consideration of money who are in possession of the suit property.

5. The trial Court framed issues and directed the parties to lead evidence in the case. The respondent No. 2 filed a petition in the Court below on 23.02.2018 stating that plaintiff, who is his wife, had executed a power of attorney in his favour and through power of attorney plaintiff has given him power to adduce evidence in the case in her place. The petitioner opposed the said petition by filing the rejoinder. The said petition was allowed by the learned trial Court vide the impugned order.

6. Learned counsel for the petitioner has submitted that the power of attorney has been prepared during the pendency of the suit and the power of attorney holder cannot depose on behalf of the principal as such he has only to act on behalf of the principal. The Power of attorney holder can do certain thing on behalf of the principal like doing pairavi in the case on behalf of plaintiff but he cannot give evidence regarding devolution of property on the plaintiff. He has further submitted that the petition has been filed by the power of Attorney holder, not by the plaintiff which cannot be permitted.

7. On the other hand, learned counsel for the respondents submits that respondent No. 2 is husband of the plaintiff who has registered power of attorney in his favour and as such he has full interest in the disputed land. It is further submitted that plaintiff is an old lady suffering from several diseases and found it difficult to attend the Court herself and therefore executed power of attorney to her husband / respondent No. 2 on 16.02.2018 to adduce evidence on her behalf and to do needful pairavi. Further it is submitted that the learned trial Court after fully considering the submission made by both the parties and considering the facts and circumstances, rightly passed the impugned order and there is no illegality in the same.

8. The issue with regard to appointment of power of attorney to lead evidence is no more res integra. Order 3 Rules 1 and 2 CPC empower the holder of power of attorney to “act”

on behalf of the principal. The “acts’’ employed in Order III, 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.

9. In Janki Vashdeo Bhojwani and Ors.,Vs. Indusind Bank Ltd. and Ors., reported in AIR (2005) SC 439; (2005) 2 SCC 217, it was held that a power of attorney holder, who has acted in pursuance of the said power, may depose on behalf of the principal in respect of such acts but cannot depose for the principal for the acts done by the principal and not by the power of attorney holde