1999 (9) TMI 944 - HC - Indian Laws

Summary

Issues Involved:
1. Whether recognised agents can step into the shoes of the plaintiff based on a Power of Attorney.
2. Whether the plaintiff must personally step into the witness box to prove their case.

Summary:

Issue 1: Recognised Agents and Power of Attorney
The Trial Court held that recognised agents cannot step into the shoes of the plaintiff based on a Power of Attorney and directed the plaintiff to personally prove their case. The petitioners filed a suit for cancellation of a gift deed and partition of the suit property, contested by the respondents. The plaintiffs sought to be represented by their Power of Attorney holder as a witness. The Trial Court, relying on judgments such as Samdukhan v. Maddanlal and Anglo French Drug Co. Pvt. Ltd. v. R.D. Tinaikar, concluded that a Power of Attorney holder cannot plead on behalf of the plaintiffs.

Upon review, it was clarified that Order III of the Code of Civil Procedure (CPC) authorises parties to be represented by agents for various purposes. Rule 1 allows appearances, applications, or acts to be done by the party in person, their recognised agent, or a pleader, unless otherwise directed by the Court. Rule 2 specifies that recognised agents holding Powers of Attorney can make appearances, applications, and acts on behalf of the parties. The Court noted that the term "act" in Order III, Rule 1 does not include pleading, which is reserved for advocates under the Advocates Act, 1961. However, this does not restrict a Power of Attorney holder from deposing on behalf of the principal. The competency of a witness is governed by section 118 of the Evidence Act, which allows all persons to testify unless they are incapable of understanding the questions or giving rational answers.

Issue 2: Plaintiff's Personal Appearance in the Witness Box
Order XVIII, Rule 2 of CPC requires the party with the right to begin to state their case and produce evidence. Rule 3-A, inserted by Act 104 of 76, mandates that if a party desires to appear as a witness, they must do so before other witnesses unless permitted otherwise by the Court. The Court emphasised that it is not mandatory for a party to appear in person to state their case or to examine themselves as a witness. The procedural law is intended to facilitate substantive justice and should not create undue hardship.

The Trial Court's direction for the plaintiff to step into the witness box was found unjustifiable, as it did not provide reasons apart from the incompetency of the Power of Attorney holder to depose. The High Court set aside the Trial Court's findings and directed the Trial Court to proceed from the stage where the deposition of P.W. 1 was interrupted.

Conclusion:
The petition succeeded, and the impugned order was set aside. The Trial Court was instructed to continue the proceedings from the interrupted stage of P.W. 1's deposition. The rule was made absolute with no order as to costs.