Madhya Pradesh High Court
Usman Pahalwan vs Jama Masjid Intezamiya (Waqf) ... on 4 October, 2021
Author: Subodh Abhyankar
M.P. No.585/2021 1
THE HIGH COURT OF MADHYA PRADESH
M.P. No.585/2021
(USMAN PAHALWAN Vs JAMA MASJID INTEZAMIYA [WAFQ])
Indore, Dated: 04/10/2021
Shri Jitendra Verma, learned counsel for the petitioner.
None for the respondent despite service of notice.
As directed by this Court on 02/09/2021 that there shall
be no adjournment on the next date of hearing and as the
respondent has already been served, the petition is heard
finally.
The petitioner has filed this petition under Article 227 of
the Constitution of India against the order dated 04/02/2021
(Annexure-P/1) passed by learned Fifth Civil Judge, Class-I,
Mhow, District Indore in COS No.23-A/2018.
The case of the petitioner is that his son Salim has been
authorized by him to depose before the Court on his behalf as
he is 95 years of age and it is not possible for him to be cross-
examined in connection with his defense. The aforesaid
application filed by the petitioner under Section 151 of C.P.C
has been rejected by the learned Judge of the trial Court citing
the decision rendered by Co-ordinate Bench of this Court in
the case of Anokilal Vs. Seema reported as 2009(1) MPLJ
586, wherein this Court has held that:
" The power of attorney cannot depose for the
principal in respect of the matter which only the
principal can have a personal knowledge and in
respect of which the principal is entitled to be cross-
examined. If the power of attorney holder has
rendered some acts in pursuance to the power of
attorney, he may depose for the principal in respect
of such acts."
Learned counsel for the petitioner has submitted that
unless the petitioner's son appears in the witness box it could
Digitally signed by SUMATHI
JAGADEESAN
Date: 2021.10.05 11:54:19 +05'30'
not be possible for him to depose on behalf of the petitioner
regarding the facts which are in his personal knowledge. In
support of his contentions, counsel has also relied upon the
decision rendered by this Court in M.P. NO.6614/2019 in the
case of M/s. Dyna Chem vs. Smt. Vinita Punjabi wherein this
Court under similar circumstances has allowed the petition
and has directed the learned Judge of the trial Court to record
the statement of the power of attorney holder of the petitioner.
On due consideration of the submissions made by
learned counsel for the petitioner and on perusal of the record
including the decision rendered by this Court in the case of
M/s Dyna Chem (Supra), this Court finds force in the
contentions raised by learned counsel for the petitioner. So far
as the case of M/s. Dyna Chem (Supra) is concerned, this
Court has held as under:
" Learned counsel appearing for the petitioner placing
reliance upon the judgment of the Supreme Court in the
matter of Man Kaur (Dead) by LRs Vs. Hartar Singh
Sangha reported in (2010) 10 SCC 512 has submitted that
the power of attorney holder who has no personal
knowledge, cannot be permitted to be examined in place of
the plaintiff.
As against this, learned counsel for the respondent
has placed reliance upon the judgement of the Supreme
Court in the matter of Janki Vashdeo Bhojwani and
others Vs. Indusind Bank Ltd. and others reported in
AIR 2005 SC 439 restraining the power of attorney holder
to depose for the principal in respect of the matter of which
only principal can have personal knowledge.
Having regard to the aforesaid settled principle of
law, though the power of attorney holder can be permitted
to make a deposition before the Court but he can be
permitted only to the extent of his personal knowledge and
he cannot be permitted to depose on behalf of plaintiff for
which he had no personal knowledge.
Hence, the present misc. petition is disposed off by
directing the trial Court to bear in mind the aforesaid
principle while recording the statement of power of
attorney holder and examining the same at the time of
deciding the suit.
C.c. as per rules."
Digitally signed by SUMATHI
JAGADEESAN
Date: 2021.10.05 11:54:52
+05'30'
On the aforementioned findings recorded by this Court
in the identical case, this Court also opines that this petition
can be disposed of with the same direction as aforesaid. And
thus setting aside the impugned order dated 04/02/2021, it is
directed that the present misc. petition is disposed of by
directing the trial Court to bear in mind the aforesaid principle
while recording the statement of power of attorney holder and
examining the same at the time of deciding the suit.
With the aforesaid M.P. No.585/2021 stands disposed of.
(SUBODH ABHYANKAR)
JUDGE
sumathi
Digitally signed by
SUMATHI JAGADEESAN
Date: 2021.10.05 11:55:43
+05'30'
