Anant V. Sarmalkar vs Mr. Anthony Pereira

A.P. Lavande, J.—Heard Mr. Diniz, learned Counsel for the Petitioner and Mr. Ramani, learned Counsel for the Respondent. On 30th August, 2010, this Court issued notice to the respondent for final disposal of Writ Petition. Hence, Rule. Rule is made returnable forthwith.

By this petition, the petitioner challenges order dated 29th July, 2010, passed by the Civil Judge Senior Division, Vasco in Special Civil Suit No. 52/06/B by which the application filed by the respondent for exclusion of evidence of power of attorney of the plaintiff and directing the plaintiff to file his own affidavit has been allowed.

The petitioner is the plaintiff and respondent is the defendant in the above suit filed seeking declaration and consequential reliefs. The suit was contested by the defendant. Shri N.P. Vasu Nair who was holding power of attorney on behalf of Mr. Narayan Bandekar, Proprietor of M/S Anant V. Sarmalkar stepped in the box. He was partly cross examined by the advocate for the defendant.

Thereafter, application dated 17-07-2009 was filed by the respondent seeking exclusion of the affidavit of attorney and direction to the plaintiff to file his own affidavit. The application was opposed by the plaintiff and by impugned order dated 29-07-2010, the trial Court has discarded the deposition of the attorney and further directed the proprietor of the plaintiff to examine himself on behalf of the proprietary concern.

Mr. Diniz, learned Counsel for the petitioner submitted that the impugned order discloses total non-application of mind and is patently without jurisdiction in as much as the plaintiff was entitled to examine the attorney on his behalf and the trial Court could not have directed the plaintiff to step in the box. According to Mr. Diniz, reliance placed by the trial Court in the case of Janki Vashdeo Bhojwani and Another Vs. Indusind Bank Ltd. and Others, is totally misplaced. Mr. Diniz, further submitted that the plaintiff was entitled not to step in the box and examine any witness on his behalf and as such the trial Court could not have discarded the evidence of the attorney and directed the plaintiff to examine himself.

Mr. Ramani fairly conceded that the trial Court could not have passed the impugned order. Mr. Ramani further submitted that it may be clarified that if the evidence of the attorney is taken into consideration, the proprietor of the plaintiff would not be allowed to examine himself in view of Order 18 Rule 3A of CPC In the alternative, Mr. Ramani submits that if the plaintiff steps in the box after the attorney, objection of the defendant for examination of the plaintiff be kept open.

I have carefully considered the rival submissions and perused the record.

In the case of Janki Bhojwani (supra), the Apex Court dealt with the aspect as to whether the attorney can step in the shoes of the principal. The Apex Court held that the holder of power of attorney cannot depose for the acts done by the principal. Similarly, he cannot depose for the principal in respect of the matters which only the principal can have a personal knowledge and in respect of which the principal is entitled to be cross examined. In the said judgment, the Apex Court disapproved the contrary view taken by this Court in the case of Humberto Luis and Anr. v. Floriano Armando Luis and Anr. reported in 2002 (2) BCR 754.

In the present case, on behalf of the plaintiff, the constituted attorney was examined and was partly cross examined. I fail to understand as to how the defendant in the midst of cross examination could have filed such an application. In the light of the ratio laid down in the case of Janki Bhojwani (supra), the evidence of Mr. N.P. Vasu Nair will have to be taken as evidence of a witness on behalf of the plaintiff. The Apex Court in the case of Janki Bhojwani (supra), has not held that the plaintiff cannot examine the witness on his behalf without stepping into the box. This being the position, I find merit in the submission of Mr. Diniz that the impugned order passed is patently unsustainable in law.

I also fail to understand as to how the defendant could have sought direction against the plaintiff to examine himself. In a civil proceeding the party has a choice to examine himself/herself and in case he/she does not examine himself/herself, the Court, at the most is entitled to draw adverse inference depending upon the nature of the case. Therefore, the order passed by the trial Court directing the plaintiff to examine himself cannot be sustained in law. In so far as argument of Mr. Ramani that in the event the constituted attorney is permitted to be examined as a witness, it may be clarified that the plaintiff would not be able to examine himself is concerned, I do not find merit since Order 18 Rule 3A of CPC permits the party to make an application giving reason seeking permission to examine the party after the witness is examined. In case such an application is made it is for the trial Court to decide the application on its own merits after considering the objection from other side.

In view of the legal position discussed above, I find that impugned order is patently unsustainable in law and deserves to be quashed and set aside. In my view, the application filed by the defendant was absolutely not maintainable in law and the same was nothing but an abuse of the process of Court, for which appropriate order deserves to be passed.

Therefore, Writ Petition is allowed. The impugned order dated 29th July, 2010 is quashed and set aside. Respondent/Defendant is directed to deposit costs of Rs. 5,000/- (Rs. five thousand only) in the Trial Court. The costs shall be the condition precedent for defending the suit. Out of the amount of Rs. 5,000/-, Rs. 2,500/-shall be paid to the plaintiff and the balance amount of Rs. 2,500/- shall be deposited in the account of the South Goa District Legal Services Authority, South Goa, Margao. At the request of Mr. Ramani, time of four weeks is granted to deposit the costs.

Rule is made absolute in aforesaid terms.