HON'BLE SRI JUSTICE K.LAKSHMAN CIVIL REVISION PETITION No.2915 OF 2024

ORDER:

Heard Mr. A. Krupadhar Reddy, learned counsel for the petitioners. Despite service of notice, there is no representation on behalf of the respondent.

2. This Civil Revision Petition under Article 227 of the Constitution of India, is filed challenging the order dated 08.08.2024 passed in I.A.No.298 of 2024 in O.S.No.103 of 2018 by learned Principal Junior Civil Judge, at Karimnagr.

3. The respondent herein - plaintiff filed a suit vide O.S.No.103 of 2018 before the learned Principal Junior Civil Judge at Karimnagar against the petitioners herein - defendants, seeking a) to declare the suit passage as exclusive way to reach his house, b) to grant perpetual injunction retraining the petitioners herein from making any construction obstructing free access to his house, c) to grant mandatory injunction directing the petitioners herein to remove the trenches dug in the suit passage and d) to award costs.

4. In the said suit, the respondent herein filed an application vide I.A.No.208 of 2024 under Section 151 CPC, to permit his wife Smt. Gandla Suvarna to depose as P.W.1 on his behalf.

5. The wife of the respondent herein in her affidavit stated that her husband i.e. respondent herein is presently staying in foreign country and could not proceed with the evidence in the present suit.

Therefore, she sought permission to depose on behalf of her husband.

6. The petitioners herein filed counter opposing the averments of the respondent herein stating that there is no instrument in the shape of authorization letter or power of attorney executed by the respondent herein authorizing his wife to depose on his behalf. The respondent herein with an intention to drag on the matter without any reason, filed the said application. The respondent herein is staying in Hyderabad only, he never went to foreign country. Even the provision i.e. Section 151 of Cr.P.C. under which the said I.A.No.208 of 2024 filed is not the correct provision to seek the said relief. Though wife is competent to depose on his behalf, the respondent herein must give consent before the Court to the said effect. With the said contentions, they sought to dismiss the said application.

7. Learned trial Court vide order dated 08.08.2024 allowed the said application holding that as per Section 120 of the Indian Evidence Act, a non litigating spouse is a competent witness for the other spouse who litigates. The expression competency of witness refers to the capacity, ability or qualification to give evidence, without any written authority or General Power of Attorney. Such a witness is entitled to depose not only the facts within his/her knowledge but also within the knowledge of his/her spouse.

8. Aggrieved by the said order dated 08.08.2024, the petitioners herein filed the present revision contending that there is no General Power of Attorney executed by the respondent herein in favour of his wife to depose on his behalf. Section 120 of the Act, has no application in the present case as the wife of the respondent is willing to step into the shoes of the respondent herein. The application filed by the wife of the respondent herein is contrary to Order III of CPC as the deponent is not even a recognized agent and not holding any Power of Attorney. The prayer sought in I.A. No.298 of 2024 is contrary to the Civil Rules of Practice more particularly, Rule-32 of Civil Rules of Practice. Personal knowledge of the deponent, wife of the respondent herein, cannot be equated with the personal knowledge of her husband and it is the respondent herein who has to prove the existence or otherwise of the easement rights claimed in O.S. No.103 of 2018.

9. The aforesaid rival submissions would reveal that the respondent - plaintiff filed the aforesaid suit for declaration to declare the suit passage as exclusive way to the house of the plaintiff and also for perpetual injunction etc. In the said suit, the plaintiff filed an applica