Ganti Madhusarma and Another vs Velagala Appalanaidu and Others

P.S. Narayana, J.—Question No. 3: As already referred to supra , this question was raised and argued with all vehement by the counsel representing the respondents. It is no doubt true that the suit itself was instituted by a General Power of Attorney holder representing both the plaintiffs, it is also true that the General Power of Attorney holder alone was examined as PW-1 and PW-2 is a formal witness. Neither of the plaintiffs had been examined. No doubt PW-1 had deposed about all the factual aspects relating to the plaint schedule property and also about the documents, which had been marked on the plaintiff side. Since this question of law emerges on the admitted facts, it is permitted to be raised in the present second appeal. Order 3 Rule 2 of the CPC dealing with recognized agents reads as under:

"R.2. Recognized agents:- The recognized agents of parties by whom such appearances, applications and acts may be made or done are -

(a) persons holding powers-of -attorney, authorizing them to make and do such appearances, applications and acts on behalf of such parties;

(b) persons carrying on trade or business for and in the names of parties not resident within the local limits of the jurisdiction of the Court within which limits the appearance, application or act is made or done, in matters connected with such trade or business only, where no other agent is expressly authorized to make and do such appearances, applications and acts."

Order 3 Rule 2(a) refers to persons holding powers of attorney authorizing them to make and do such appearances, applications and acts on behalf of such parties. Section 118 of the Indian Evidence Act 1872 reads as under:

"All persons shall be competent to testify unless the Court consider that they are prevented from understanding the questions put to them, or from giving rational answers to those questions, by tender years, extreme old age, disease, whether of body or mind, or nay other cause of the same kind".

In Kanadapudi Bharathy, Gudivada and another Vs. Authority Under Section of A.P.S.E. Act-cum-Labour Officer, Machilipatnam and another, it was held as under:

"I have given my anxious consideration to the rival contentions and carefully perused the impugned Order. I am of the considered view that word ''acts'' used in Rule 2, Order 3 CPC does not include the act of Power of Attorney Holder of a party can appear only as a witness in his personal capacity to speak about the facts which are within his personal knowledge about the ca, but, he cannot appear as a witness on behalf of a party in the capacity of that party. It has been observed in the impugned order that the executant of General Power of Attorney by name Bharathi has been attending to her case personally and non-examination of her in APSEC NO. 4 of 1996 will result in great injustice to the second respondent. In this context, it is also relevant to refer to Section 118 of the Indian Evidence Act which reads that "all persons shall be competent to testify unless the Court considers that they are prevented from understanding the questions put to them or giving rational answers to those questions, by tender years, extreme old age, disease, whether of body or mind, or any other cause of the same kind". Thus, testimonial compulsion is the very foundation of the Law of Evidence for without such compulsion every refusal to give evidence will render administration of justice impossible. It is not a legal fetish. It is necessity and also the general rule. The petitioners cannot stay back without entering into witness box and subjecting themselves; to cross-examination by the second respondent. Further, even if the petitioners are unable to appear in Court, a Commissioner for recording their evidence my be taken out under the relevant provisions of the Code of Civil Procedure."

In Shambhu Dutt Shastri Vs. State of Rajasthan and Others, it was observed "a general power of attorney holder can appear, plead and act on behalf of the party, but he become a witness on behalf of the party. He can only appear in his own capacity. No one can delegate the power to appear in witness-box on behalf of himself. To appear in a witness-box is altogether a different act. A general power-of-attorney holder cannot be allowed to appear as a witness on behalf of the plaintiff in the capacity of the plaintiff."

In Ram Prasad Vs. Hari Narain and Others, it was held that power of attorney holder is not entitled to appear as witness for party appointing him power of attorney holder and the word "acts" in Order 3 Rule 2 CPC does not include act of power of attorney holder to appear as witness on behalf of a party. In Salar Jung Museum Vs. Atiya Talat, while dealing with Order 3 Rules 1 and 2 of the CPC and Section 118 of the Evidence Act 1872 it was held that a General Power of Attorney of a party can be allowed to give evidence as a witness on behalf of the said party to speak to facts of the case not as GPA but as a person having personal knowledge and Order 3 Rules 1 and 2 of CPC are not concerned with examination of witnesses and Section 118 of the Indian Evidence Act 1872 is the relevant provision and a power of attorney can appear as a witness in his personal capacity though not in his capacity as a Power of Attorney. In Ismath Ahmedizade Mahmoodi Abidi Vs. Kurshidunnisa Begum, it was held that the General Power of Attorney holder cannot be permitted to represent the party in the suit and to depose on his/her behalf, but it is always open to the General Power of Attorney holder to appear as a witness in his/her personal capacity to speak about the facts which are in his/her personal knowledge about the case.

In the present case on hand, the General Power of Attorney holder himself had instituted the suit by signing the plaint and had prosecuted the litigation up to the second appeal. But however, in view of the fact that at the second appellate stage, General Power of Attorney holder died, a memo was filed and now the original plaintiffs are being represented by a counsel on those parties as appellants in the second appeal. Representing as part to the litigation as a General Power of Attorney holder is some thing different from figuring as witness to speak to certain facts, which are within his knowledge, these are two different aspects altogether. Though no hard and fast rule can be laid down, no doubt normally it is advisable and desirable that parties to the litigation to enter into the witness box for the purpose of establishing their own case. But however, there may be other peculiar circumstances in which certain other parties who are having complete knowledge over the facts of a particular case are being examined. In all such cases, reliefs cannot be refused to either of the parties on the sole and mere ground of non-examination of a party. If the court is satisfied on the other material available on record that either the party is entitled to relief or not entitled to the same, each case might have to be decided depending upon the facts and circumstances. It may be that in a particular set of facts and adverse inference may be drawn but it cannot be said that in all the cases that can be a general rule. As already observed by me, no doubt it is always better if the parties to the litigation are the wife of the party or the husband of the party or any other person closely concerned with the facts and circumstances of a particular case can be definitely examined for the purpose of establishing the case of a particular party. What I had expressed above is only just an illustrative and it cannot be said to be exhaustive. Since all such facts and circumstances cannot be enumerated comprehensively. In the present case, the suit was instituted by two plaintiffs and none of the plaintiffs had been examined the power of attorney holder. It is pertinent to note that the appellate court had reversed the judgment and decree of the trial court observing that all the Revenue Records produced by the appellants are suspicious in view of the fact that the power of attorney holder is the Sarpanch of the Village and the Village Munsif was a close relative of the said power of attorney holder. I had already expressed my opinion that such findings recorded by the appellate court rejecting voluminous and overwhelming documentary evidence on such a ground cannot be sustained, but however, none concerned with the Revenue Records had been examined and none of the plaintiffs had also been examined. In view of the peculiar facts and circumstances, I am of the considered opinion that this is a fit matter where opportunity could be given to the appellants-plaintiffs to examine themselves or any one of them if they choose to do so and also permit the appellants-plaintiffs to place further evidence before the court so as to satisfy the court about the authenticity of the records produced by them before the court. It is needless to say that equally the respondents-defendants also entitled to put forth the necessary evidence in this regard inasmuch as the appellants-plaintiffs are being permitted to let in further evidence.

In view of the findings recorded by me, the matter is remanded to the court of first instance for the purpose of enabling both the parties to let in necessary evidence in the light of the observations made by me supra.

Accordingly, the Second Appeal is allowed to the extent; indicated above. No order as to costs.