M/S. Desire Agro Resorts ... vs Sunayna Biswas
2021 Latest Caselaw 1345 Cal

11.02.2021

srm

C.O. No. 209 of 2021

M/s. Desire Agro Resorts Development Private Limited Vs.

Sunayna Biswas

Mr. Raghunath Chakraborty, Mr. Mahaboob Ahmed ...for the Petitioner.

This revisional application has been filed against an

order dated December 23, 2019 passed by the learned Civil

Judge (Senior Division), 9th Court at Alipore, District-24-

Parganas (South) in Money Suit No.1397 of 2016.

It is the contention of the petitioner that the plaintiff has

not been deposing and instead, the husband of the plaintiff,

Mr. Achintya Kumar Biswas, is deposing in the suit as her

constituted attorney. Mr. Chakraborty submits that the facts

which are within the special knowledge of the wife cannot be

deposed through the husband and if such statements are

made, the same could not be accepted by the Court.

Accordingly, the petitioner filed an application before

the learned Court below praying for a direction for taking off

the evidence of the power of attorney holder (husband) from

the records and not to allow the husband to depose further on

behalf of the plaintiff. The learned Court below upon

considering the provisions of Order III Rules 1 and 2 of the

Code of Civil Procedure and the judgment reported in AIR

2005 SC 439, held that those provisions would not be squarely

applicable in the case on the ground that the husband, Sri

Achintya Kumar Biswas could depose on behalf of the

plaintiff, who was his own wife, but the deposition of

PW1/Achintya Kumar Biswas and the documents produced by

him would be considered by the Court to the extent that those

related to the facts which were within his personal knowledge.

The facts, which were not within the knowledge of the power

of attorney holder, would not come in evidence and no cross-

examination on such points would also be allowed. Thus, the

application of the petitioner was rejected.

Aggrieved by the said order, this revisional application

has been filed.

Mr. Chakraborty submits that the Hon'ble Apex Court

in the matter of Janki Vashdeo Bhojwani & Anr. vs. Indusind

Bank Ltd & Ors. reported in AIR 2005 SC 439 held that the

question whether the appellants before the Hon'ble Apex

Court had any independent source of income and had

contributed towards the purchase of the property from their

own independent income, could only be answered by the

appellants and not by a mere holder of power of attorney. In

the case before the Hon'ble Apex Court, a single power of

attorney holder had deposed on behalf of all the appellants.

The proceeding was with under the Recovery of Debts Due to

Banks and Financial Institutions Act. In a recovery proceeding

an attachment of the house was allowed. The same was

challenged by the wives of the debtors on the ground that the

house was purchased from their funds. The wives of the

debtors could not show independent income and the objection

was held as not maintainable. Matter went up to the Apex

Court. Under such circumstances, the Hon'ble Apex Court

held that it was the burden on the wives to come and

discharge by showing their independent income and the

power of attorney holder, who deposed on behalf of the wives

of the debtors, did not have personal knowledge of the source

of income of the wives and no documents could be produced

before the Court as proof of independent income of the wives.

That was the ultimate ratio in the judgment and the Hon'ble

Apex Court held that the evidence on issues or facts over

which a person had personal knowledge could only be

accepted, if the said person deposed and discharged the

burden, but could not be accepted if a power of attorney

holder deposed on behalf of such person on issues and facts

which were not within the personal knowledge of the power

of attorney holder.

In this case, the evidence has just begun. The plaintiff

being the wife of the power of attorney holder is not deposing.

Instead, the husband has been given the power to depose on

behalf of the wife. The learned Court below has restricted the

deposition of the husband to only those facts and issues of

which he has personal knowledge and also has restricted the

cross-examination to those points only. At this stage, there is

no material irregularity in the order impugned. The

contentions of Mr. Chakraborty are to be raised at the trial

when the probative value of evidence of Achintya Kumar

Biswas will be weighed and judgment relied on by Mr.

Chakraborty will come in his aid at that point of time.

This Court has not gone into the merits of the claims and

counterclaims of the parties and the learned Court below shall

proceed independently.

The revisional application is disposed of.

There will be, however, no order as to costs.

Urgent photostat certified copy of this order, if applied

for, be given to the parties on priority basis.

(Shampa Sarkar, J.)