WP-297-2021-F.DOC

Andreza

IN THE HIGH COURT OF BOMBAY AT GOA

WRIT PETITION NO. 297 OF 2021 (FILING)

1. M/s. Nagesh Trivikram Naik,

Through its proprietor Shri

Mahabaleshwar

Naik,

through

constituted Power of Attorney Mr.

Ratish Naik, Having shop on ground

floor of Parsekar building No. 259-A

Angod, Mapusa, Goa.

…Petitioner

Versus

Smt. Kalindi V. Parsekar,

r/o. Parsekar Building, having No.

259-A, Angod, Mapusa-Goa.

…Respondent

Mr. S. D. Lotlikar, Senior Advocate with Ms. Sailee Kenny,

Advocate for the Petitioner.

Mr. R. G. Ramani, Senior Advocate with Mr. Pranav Shenvi

Kakodkar, Advocate for the Respondent.

CORAM :

MANISH PITALE, J

Reserved on : 4^th October 2021

Pronounced on : 8^th October 2021

ORDER

1.

The Petitioner is the original defendant and he is aggrieved

by an order dated 06.04.2021 passed by the Court of Civil Judge,

Junior Division, Mapusa, whereby an affidavit in evidence filed

on behalf of the Petitioner by his Power of Attorney holder has

been discarded. The Power of Attorney holder is the son of the

Petitioner. The Court below has held that the Power of Attorney

holder cannot depose in place of the principal because he has no

personal knowledge about the facts, in respect of which

statements have been made in the affidavit.

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WP-297-2021-F.DOC

2.

The Respondent has filed Regular Civil Suit No.

61/2010/D, against the Petitioner for eviction from the suit shop.

The Petitioner has a proprietary concern and the business is

carried out from the said shop.

3.

In the said proceedings, the Petitioner through his Power of

Attorney holder i.e. his own son, placed on record an affidavit in

evidence of DW-1 dated 03.07.2019. The Respondent filed an

application for discarding the said affidavit on the ground that the

statements made in the affidavit could not be said to be in the

personal knowledge of the Power of Attorney holder and that as

per settled law, the affidavit did not deserve to be taken on record.

The application was opposed on behalf of the Petitioner and as

noted above, by the impugned order, the affidavit has been

discarded.

4.

Mr. S. D. Lotlikar, the learned Senior Counsel appearing

for the Petitioner submitted that even if the entire affidavit of the

Power of Attorney holder could not have been accepted, certain

parts thereof could certainly be taken on record and that, in any

case, the Respondent could discredit the said witness in cross-

examination. It was submitted that the position of law as laid

down by the Hon'ble Supreme Court in the case of Janki

Vashdeo Bhojwani & Ors. vs. Indusind Bank Ltd. & Ors.

1

was not appreciated in the correct perspective by the Court below.

Reliance was also placed on a Judgment of the Delhi High Court

in the case of Durga Dass Banka vs. Ajit Singh & Ors.

2

1 (

2005) 2 SCC 217

2 2012 ILR IDelhi 607

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5.

It was further submitted that the Petitioner himself is a

Senior Citizen aged about 88 years and, in such circumstances,

the affidavit in evidence of his Power of Attorney holder ought

not to have been discarded.

6.

Mr. Ramani, the learned Senior Counsel appearing for the

Respondent, submitted that the Court below had correctly

applied the position of law, as laid down by the Hon'ble Supreme

Court in the case of Janki Vashdeo Bhojwani (supra) and

reiterated thereafter in the case of Man Kaur (Dead) by Lrs. vs.

Hartar Singh Sangha

3. It was submitted that in the present case,

the Power of Attorney was executed on 03.07.2019, only for the

purpose of the son of the Petitioner to take necessary steps in

respect of the litigation. The Power of Attorney holder had no

personal knowledge of statements made in his affidavit in

evidence and, therefore, as per the settled position of law, the

affidavit could not have been looked into and that the Court

below was justified in discarding the same.

7.

Before consi