Smt. Rajni Tiwari vs Smt. Bhagyawati Bai

Hon''ble Mr. Alok Aradhe, J.—In this petition under Article 227 of the Constitution of India the petitioner has challenged the validity of the order dated 26-8-2010 passed by the Trial Court by which the Trial Court has held that the husband of the petitioner though is competent witness u/s 120 of the Indian Evidence Act, yet he cannot be permitted to exhibit and prove the document filed by the wife. The facts, leading to filing of the writ petition, briefly stated, are that the petitioner has filed a suit seeking the relief of permanent injunction. The petitioner filed certain documents in support of her claim before the Trial Court. The respondent defendant filed the written statement and contested the claim of the petitioner. The petitioner filed the examination-in-chief of her husband in the form of affidavit. When the husband of the petitioner was being cross-examined he wanted to exhibit certain documents. Thereupon, the Counsel for respondent raised an objection that the petitioner cannot exhibit or prove the document. The Trial Court in view of the objection of the respondent held that though the husband of the petitioner is competent witness u/s 120 of the Indian Evidence Act, 1872 yet he has not appeared before Court as attorney of the plaintiff and, therefore, he cannot be permitted to exhibit the document.

Learned Counsel for the appellant submitted that there is no provision of law which debars a competent witness to exhibit a document or to prove the document. Learned Counsel for the petitioner has drawn attention of this Court to Section 1-A of the Powers of Attorney Act, 1882 and submitted that power of attorney includes any instruments empowering a specified person to act for and in the name of the person executing it. Therefore, the power of attorney is not required to prove any document. It is also submitted that under Order 3 Rule 1 of the CPC an appearance, application or act in or to any Court, required or authorised by law to be made or done by a party in such Court, may except where otherwise expressly provided by any law be made or done by the party in person or by his recognised agent or by a pleader appearing, applying or acting as the case may be on his behalf.

I have considered the submissions made by learned Counsel for the petitioner. Section 120 of the Indian Evidence Act reads as under:-

Parties to civil suit, and their wives or husbands. Husband or wife of person under criminal trial.- In all civil proceedings the parties to the suit, and the husband or wife of any party to the suit shall be competent witnesses. In criminal proceedings against any person, the husband or wife of such person respectively, shall be a competent witness.

Thus from perusal of Section 120 of the Indian Evidence Act, 1872, it is apparent that in all civil proceedings, the parties to the suit and the husband or wife of any party to the suit, shall be competent witnesses. Section 1-A of the Powers of Attorney Act, 1882, which defines the expression ''power of attorney'' reads as under:-

1-A. Definition.-- In this Act, "Power of Attorney" includes any instruments empowering a specified person to act for and in the name of the-person executing it.

Thus, from perusal of Section 1-A of the Powers of Attorney Act, 1882 it is apparent that power of attorney is required to act for and in the name of the person executing it. Similarly, Order 3 Rule 1 of the CPC reads as under:-

Order III. Recognised Agents and Pleaders.-

Rule 1. Appearance, etc., may be in person, by recognised agent or by pleader.-- Any appearance, application or act in or to any Court, required or authorised by law to be made or done by a party in such Court, may, except where otherwise expressly provided by any law for the time being in force, be made or done by the party in person, or by his recognised agent, or by a pleader appearing, applying or acting, as the case may be, on his behalf :

Provided that any such appearance shall, if the Court so directs be made by the party in person.

Thus, if all the provisions referred to above are read conjointly, it is apparent that there is no prohibition in law to the effect that a competent witness cannot be permitted to exhibit the document. u/s 120 of the Indian Evidence Act, 1872 the husband of a party to the suit is competent witness, therefore, he is entitled to depose about the facts about which he or his wife has the knowledge. The husband of the petitioner being the competent witness for the wife can also be permitted to exhibit the document and there is no need to execute the power of attorney. However, the question of proof of a document is altogether different from the question of exhibiting a document.

For the aforementioned reasons, the order dated 26-8-2010 in Paragraph 10 of the deposition sheet is hereby quashed. The husband of the petitioner shall be permitted to depose and to exhibit the documents which have been produced by him. Accordingly, the writ petition is disposed of.

C.C. as per rules.