RDS Project Ltd. vs Mariyu Abdul Azeez

G. Rajasuria, J.—Animadverting upon the order dated 4-9-2007 made in I.A. No. 9434 of 2007 in O.S. No. 4928 of 2005 and the

docket order dated 26-4-2007 made in O.S. No. 4928 of 2005 passed by the learned Assistant Judge, City Civil Court, Chennai. These civil

revision petitions are focussed.

Heard both sides.

Niggard and bereft of details, the relevant facts, which are absolutely necessary and germane for the disposal of these civil revision petitions

would run thus:

The respondent filed the suit O.S. No. 4928 of 2005 before the learned Assistant Judge, City Civil Court, Madras for recovery of money in

connection with the supply of goods to the revision petitioner/defendant herein. During trial, on the side of the plaintiff, P.W. 1 by name B.

Mohammeed Sameer filed Chief Examination affidavit; whereupon the defendant/revision petitioner objected for the said witness being examined,

on the ground that the said witness had nothing to do with the case and he cannot be treated as a person being examined on behalf of the plaintiff.

It was also the contention of the revision petitioner before the trial Court that the alleged Power of Attorney of the plaintiff and the alleged letter

purported to have been executed by the Power of Attorney in favour of PW 1 cannot be taken as legal document or having any legal effect and by

no stretch of imagination, PW 1 could be taken as a witness examined on behalf of the plaintiff.

I.A. No. 9434 of 2007 was filed by the revision petitioner/defendant u/s 151 of the CPC to reject the proof affidavit filed by the said witness

and also the marking of Exs. A2 to A10. The fact remains that earlier to the filing of I.A. No. 9434 of 2007, the trial Court passed the docket

order dated 26-4-2007 rejecting the objection raised by the Counsel for the defendant relating to the same issue. As such these two revisions have

been focussed animadverting upon the order passed by the trial Judge.

Whereas the learned Counsel for the respondent/plaintiff would develop his argument to the effect that the plaintiff in this case, being a lady, filed

the suit for recovery of money based on the supply of goods to the defendant and she executed the Power of Attorney in favour of her relative as

she was abroad. The said Power of Attorney executed the authorisation letter, which is referred to in the Chief Examination affidavit of PW 1, who

happened to be the Manager of the plaintiffs firm; as such, absolutely there was no embargo for such PW 1 to be examined on the side of the

plaintiff so as to prove the case of the plaintiff and that too, when as per the plaintiff, PW 1 had knowledge of the transaction with the defendant

and that it was he who transacted with the defendant.

When all said and done, considering the pro et contra, in this factual matrix, I am of the opinion that certain legal points have to be clarified and

that would solve the problem.

Before that I would like to cite the decisions cited on both the sides.

Learned Counsel for the revision petitioner cited the decision of the Hon''ble Apex Court reported in Janki Vashdeo Bhojwani and Another Vs.

Indusind Bank Ltd. and Others, . Certain excerpts from it would run thus:

On the question of power of attorney, the High Courts have divergent views. In the case of Shambhu Dutt Shastri v. State of Rajasthan it was

held that a general power of attorney holder can appear, plead and act on behalf of the party but he cannot 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 the 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.

The aforesaid judgment was quoted with approval in the case of Ram Prasad Vs. Hari Narain and Others, . It was held that the word ""acts

used in Rule 2 of Order 3, C.P.C. does not include the act of power of attorney holder appear as a witness on behalf of a party. Power of

attorney holder of a party can appear only as a witness in his personal capacity and whatever knowledge he has about the case he can state on

oath but he cannot appear as a witness on behalf of the party in the capacity of that party. If the plaintiff is unable to appear in the Court, a

commission for recording his evidence may be Issued under the relevant provisions of C.P.C..

In the case of Pradeep Mohanbay (Dr.) v. Minguel Carlos Dias the Goa Bench of the Bombay High Court held that a power of attorney can

file a complaint u/s 138 but cannot depoke on behalf of the complainant. He can only appear as a witness.

However, in the case of Humberto Luis v. Floriano Armando Luis 2000 AIHC 1572 (Bom) on which reliance has been placed by the Tribunal

in the present case, the High Court took a dissenting view and held that the provisions contained in Order 3, Rule 2, C.P.C. cannot be construed

to disentitle the power of attorney holder to depose on behalf of his principal. The High Court further held that the word ""act"" appearing in Order

3, Rule 2, C.P.C. takes within its sweep ""depose"". We are unable to agree with this view taken by the Bombay High Court in Floriano Armando

2000 AIHC 1572.

Placing reliance on the said precedent, he would develop his argument that on behalf of the plaintiff, even the Power of Attorney cannot be

examined and for that matter the Power of Attorney cannot further delegate his power in favour of another, as it has been done in this case.

Whereas the learned Counsel for the respondent/plaintiff placing reliance on the Full Bench decision of the Hon''ble Bombay High Court

reported in Hemendra Rasiklal Ghia Vs. Subodh Mody, would develop his argument to the effect that a Chief Examination affidavit filed on the

side of the parry cannot be ordered to be eschewed. Certain excerpts from it would run thus:

In the second category of the case, the objection should be taken when the evidence is tendered. Once the document has been admitted in

evidence and marked as an exhibit, the objection that It should not be admitted in evidence or that the mode adopted for proving the document Is

irregular cannot be allowed to be raised at any stage subsequent to the marking of the document as an exhibit. This proposition is Rule of fair play.

The crucial test is whether an objection, if taken at the appropriate point of time, would enable the party tendering the evidence to cure the defect

and resort to such mode of proof as would be regular. The omission to object become fatal because by his failure the party entitled to object

allows the party tendering the evidence to act on an assumption that the opposite party is not serious about the mode,, of proof. On the other hand,

a prompt objection does not prejudice the party tendering the evidence, for two reasons; firstly, it enables the Court to apply its mind and

pronounce its decision on the question of admissibility there and then; and secondly, in the event of finding of the Court on the mode of proof

sought to be adopted going against the party tendering the evidence, the opportunity of seeking indulgence of the Court for permitting a regular

mode or method of proof and thereby removing the objection raised by the opposite party, is available to the party leading the evidence. Failure to

raise a prompt and timely objection amounts to waiver of the necessity for insisting on formal proof of a document, the document itself which is

sought to be proved being admissible in evidence.

and accordingly, he would further submit that in this case, the plaintiff thought it fit that the Manager of the firm PW 1 could be examined and for

identification purpose, the authorisation letter was given in favour of PW 1 by the plaintiffs Power Agent and the same was also marked, overruling

the objection of the defendant''s side. Whereas the learned Counsel for the revision petitioner/defendant would submit that such authorisation letter

has not been marked yet and that it is not in record.

This Court being the revisional Court would like to observe that it is for the lower Court to consider as to whether, actually before it, the said

authorisation letter is available or not and whether it has already been marked or not. Be that as it may, I would like to clarify that the said

authorisation letter would have the effect of identifying the witness and it cannot be taken as one, which empowered PW 1 to depose on behalf of

the plaintiff. The question arises as to whether, in this case, non-examining of the plaintiff in person is fatal. In fact, this is a larger issue, which the

defendant is at liberty to raise even during trial and while cross-examining the witnesses on the plaintiffs side and also during arguments. It is for the

Court to decide while disposing of the suit, the objection relating to the non-examination of the plaintiff in person.

Whereas the learned Counsel for the respondent/plaintiff would highlight and spotlight the law point that the plaintiff being the dominus litis is

bound to prove her case and it is not for the defendant to dictate terms; so far this case is concerned, examination of the plaintiff in person is not

required and she would be able to face the argument as well as the objection of the defendant before the lower Court at the appropriate stage.

I would like to highlight, the gist and kernel of the proposition relating to examination of the plaintiff as a witness, when certain facts are

exclusively within the knowledge of the plaintiff or a party to the lis and if such a party shuns the witness box, then only considering the fatality of

the case of the person who shuns the box would arise and there are catena of decisions are also on that point.

As of now, the lower Court is concerned only with the evidence marshalled before it and it has to simply record it. The parties may raise

various pleas both tenable and untenable at every stage and these pleas need not be adjudicated at once in view of the judgment reported in AIR

2001 SC 1158 (Bipin Shantilal Panchal v. State of Gujarat and Anr.). An excerpt from it would run thus:

When so recast, the practice which can be a better substitute is this: Whenever an objection is raised during evidence-taking stage regarding

the admissibility of any material or item of oral evidence the trial Court can make a note of such objection and mark the objected document

tentatively as an exhibit in the case (or record the objected part of the oral evidence) subject to such objections to be decided at the last stage in

the final judgment. If the Court finds at the final stage that the objection so raised is sustainable the Judge or Magistrate can keep such evidence

excluded from consideration. In our view there is no illegality in adopting such a course. (However, we make it clear that if the objection relates to

deficiency of stamp duty of a document the Court has to decide the objection before proceeding further. For all other objections the procedure

suggested above can be followed.)

The above procedure, if followed, will have two advantages. First is that the time in the trial Court, during evidence-taking stage, would not be

wasted on account of raising such objections and the Court can continue to examine the witnesses. The witnesses need not wait for long hour''s, if

not days. Second is that the superior Court, when the same objection is recanvassed and reconsidered in appeal or revision against the final

judgment of the trial Court, can determine the correctness of the view taken by the trial Court regarding that objection, without bothering to remit

the case to the trial Court again for fresh disposal. We may also point out that this measure would not cause any prejudice to the parties to the

litigation and would not add to their misery or expenses.

Both sides adhering to the decision cited supra, could very well put forth their case/objections and the Court could record the respective

objections reserving its power to adjudicate at the time of the disposal of the entire case. So far this case is concerned, I make it clear that

irrespective of the claim of PW 1, PW 1 could only be treated as a witness examined on the plaintiffs side.

With the above finding, both the civil revision petitions are disposed of. No costs. Consequently, the connected miscellaneous petition is

closed.

Learned Counsel for the respondent/plaintiff would make an extempore submission that certain time frame may be fixed for the disposal of the

suit. Inasmuch as, it is only a suit for recovery of money, the lower Court is directed to dispose of the suit when a period of three months from the

date of receipt of a copy of this order.