Madhya Pradesh High Court
Smt. Munni Devi vs Goverdhan on 29 January, 2025
Author: Milind Ramesh Phadke
Bench: Milind Ramesh Phadke
1
IN THE HIGH COURT OF MADHYA PRADESH
AT G WA L I O R
BEFORE
HON'BLE SHRI JUSTICE MILIND RAMESH PHADKE
Misc. Petition No.2242 of 2023
Smt. Munni Devi
Vs.
Goverdhan & Others
APPERANCE
Shri Anand Vinod Bhardwaj - Advocate for the petitioners.
Shri Mahesh Goyal - Advocate for respondent No.1.
------------------------------------------------------------------------------------------
Reserved on : 20/01/2025
Delivered on : 29/1/2025
------------------------------------------------------------------------------------------
This petition having been heard and reserved for orders, coming
on for pronouncement this day, the Hon'ble Shri Justice Milind
Ramesh Phadke pronounced/passed the following:
---------------------------------------------------------------------------------------
ORDER
The present petition, under Article 227 of the Constitution of
India, has been filed assailing the order dated 25.03.2023 passed by V
Civil Judge, Junior Division, Morena in Civil Suit No.161-A/2021
whereby, the application filed by the respondent/plaintiff under Order 3
Rule 2 read with Section 151 of the Code of Civil Procedure, 1908
seeking permission to record the evidence through his registered Power
of Attorney i.e. his nephew, namely, Rohit was rejected.
FACTS
2. Short facts of the case are that the respondent No.1/plaintiff had
filed a civil suit for declaration and permanent injunction with the
pleading that father of the plaintiff/respondent No.1 Ramcharan had
purchased the land bearing Survey No.520, ad-measuring 0.6580
hectares situated at Village Devari, Tehsil and District Morena vide
registered sale deed dated 30.10.1982 from one Mayaram, S/o Manohar
and on the basis of said sale deed, his name has been mutated in the
revenue records. On summons being issued, the petitioner/defendant
No.1 appeared in the civil suit and filed his written statement denying
all the averments made in the plaints and it was averred therein that
father of the petitioner Ramcharan had sold the disputed land to
Maujilal, Munnalal, Damodar, Banwari, Mohan, Ss/o Ramprasad vide
registered sale deed dated 12.07.1985, as such the plaintiff had no share
left in the disputed land. It was also averred that without relief of
possession, the suit was not maintainable and ultimately, prayed for
dismissal of the plaint.
3. During the pendency of the civil suit, the plaintiff/respondent
No.1 executed a registered Power of Attorney in favour of his nephew
Rohit pointing out that he is aware of all the aspects of the land in
question and the dispute going on between the parties and as power of
attorney holder is his nephew; therefore, he is in a position to depose
before the learned Trial Court. On the basis of such registered Power of
Attorney, the application had been filed before the Trial Court praying
for conducting the proceedings of the Civil Suit through the Power of
Attorney holder i.e. his nephew and further prayed to record his and
other evidence through his Power of Attorney who knew everything
about the dispute and the disputed property, but the said application was
allowed. Hence, the present petition.
ARGUMENTS
4. Learned counsel for the petitioners had argued that the learned
Trial Court had erred in passing the impugned order herein, as under
Order 3 Rule 2 of CPC which empowers the Power of Attorney holder
to act on behalf of the principal plaintiff and it is only with respect to
conducting the act or proceedings which are being carried out before the
learned trial Court but so far as deposition or entering into the witness
box is concerned, the same is different act and can only be done by the
principal plaintiff.
5. It was further argued that a power of attorney holder can only
depose for the act which he has done and not for the act which the
principal has done. Therefore, he cannot depose for the principal in
respect of the matter which only the principal can have personal
knowledge and in respect of which the principal is entitled to be cross-
examined. The learned trial Court has thus allowed the application
which is per se illegal, therefore, it needs interference.
6. While placing reliance upon the judgment passed by the Hon'ble
Supreme Court in the matter of Janki Vashdeo Bhojwani Limited and
others reported in (2005) 2 SCC 217, it was argued that the power of
attorney though can depose on behalf of principal but only to the extent
of acts done/known by him, but in the present case, there is nothing on
record to suggest that anything was done by the holder of the power of
attorney and, therefore, the documents, which he wants to get them
exhibited, cannot be permitted. Exhibiting a document is not a mere
formality and the person exhibiting the documents has to prove the
existence as well as admissibility of those documents.
7. Per contra, learned counsel for the respondent No.1 while placing
reliance upon the judgment passed by the Coordinate Bench in the
matter of Bashir Vs. Smt. Hussain Bano reported in 2005 (2) M.P.L.J.
230, had argued that a member of family by way of Power of Attorney
can depose on behalf of plaintiff regarding the bona-fide need therefore,
permission was granted to the Power of Attorney to record the evidence
on behalf of principal plaintiff.
8. It was further argued that as the power of attorney is registered
and the nephew is aware of all the facts and circumstances of the
present case and also well aware of the disputed property; therefore, he
can very well depose in place of the original plaintiff, who is more than
47 years and suffering from medical ailments and is very weak to
approach the Court for deposition therefore, the learned trial Court has
thus rightly allowed the application which doesn't call for any
interference. It was thus prayed that the present petition be dismissed.
9. Heard counsel for the parties and perused the record.
10. In the present case, it is not disputed that the Suit has been filed
for declaration and permanent injunction with respect to the property in
question. It is not a case where the suit itself was filed by a Power of
Attorney holder. During the pendency of the suit, a registered Power of
Attorney was executed by the respondent No.1/plaintiff in favour of his
nephew stating therein that he is known to the case and can depose on
his behalf before the learned Trial Court and will also conduct the
proceedings of the Civil Suit thereupon. As far as conducting the
proceedings before the learned Trial Court is concerned, the same is
always permissible and the proceedings of the Civil Suit can be
conducted by the Power of Attorney on behalf of the principal, but as
far as deposition or entering into the witness box is concerned, the same
is not permissible in view of the law laid down by the Hon'ble Supreme
Court in the matter of Janki Vashdeo Bhojwani & Another Vs.
Indusind Bank Ltd. & Others (supra); wherein, the Hon'ble Apex
Court has held that the Power of Attorney holder can appear as a
witness in his personal capacity only and not on behalf of the principal.
The Hon'ble Supreme Court has considered various orders passed by
the Courts and has held that the judgment passed by the Rajasthan High
Court in the matters of Shambhu Dutt Shastri Vs. State of Rajasthan,
1986 (2) WLL 713 and Ram Prasad Vs. Hari Narain and others reported
in AIR 1998 Raj. 185 were the correct laws and the judgment passed by
the Bombay High Court in the case of Humberto Luis & Another Vs.
Floriano Armando Luis & Another reported in 2000 (1) Mh.L.J. 690
was not a good law and thus, was overruled. The Hon'ble Supreme
Court while considering the aforesaid has observed as under:-
"13. Order III, Rules 1 and 2 CPC, empowers the
holder of power of attorney to "act" on behalf of the
principal. In our view the word "acts" employed in Order
III, Rules 1 and 2 CPC, confines only in respect of "acts"
done by the power of attorney holder in exercise of
power granted by the instrument. The term "acts" would
not include deposing in place and instead of the
principal. In other words, if the power of attorney holder
has rendered some "acts" in pursuance to power of
attorney, he may depose for the principal in respect of
such acts, but he cannot depose for the principal for the
acts done by the principal and not by him. Similarly, he
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.
14. Having regard to the directions in the order of
remand by which this Court placed the burden of proving
on the appellants that they have a share in the property,
it was obligatory on the part of the appellants to have
entered the box and discharged the burden. Instead, they
allowed Mr. Bhojwani to represent them and the Tribunal
erred in allowing the power of attorney holder to enter
the box and depose instead of the appellants. Thus, the
appellants have failed to establish that they have any
independent source of income and they had contributed
for the purchase of the property from their own
independent income. We accordingly hold that the
Tribunal has erred in holding that they have a share and
are co-owners of the property in question. The finding
recorded by the Tribunal in this respect is set aside.15.
Apart from what has been stated, this Court in the case
of Vidhyadhar vs. Manikrao and Another, (1999) 3 SCC
573 observed at page 583 SCC that "where a party to the
suit does not appear in the witness-box and states his
own case on oath and does not offer himself to be cross-
examined by the other side, a presumption would arise
that the case set up by him is not correct".
16. In civil dispute the conduct of the parties is
material. The appellants have not approached the Court
with clean hands. From the conduct of the parties it is
apparent that it was a ploy to salvage the property from
sale in the execution of Decree.
17. On the question of power of attorney, the High
Courts have divergent views. In the case of Shambhu
Dutt Shastri Vs. State of Rajasthan, 1986 2 WLL 713 it
was held that a general power of attorney holder can
appear, plead and act on behalf of the party buthe 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 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.
18. The aforesaid judgment was quoted with the
approval in the case of Ram Prasad Vs. Hari Narain &
Ors. AIR 1998 Raj. 185. It was held that the word "acts"
used in Rule 2 of Order III of the CPC does not include
the act of power of attorney holder to 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 be 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 the CPC.
19. In the case of Dr. Pradeep Mohanbay Vs.
Minguel Carlos Dias reported in 2000 Vol.102 (1)
Bom.L.R. 908, the Goa Bench of the Bombay High Court
held that a power of attorney can file a complaint under
Section 138 but cannot depose on behalf of the
complainant. He can only appear as a witness.
20. However, in the case of Humberto Luis & Anr.
Vs. Floriano Armando Luis & Anr. reported in 2002 (2)
Bom.C.R.754 on which the 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 III Rule2 of CPC 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 III Rule 2 of CPC takes within
its sweep "depose". We are unable to agree with thisview
taken by the Bombay High Court in Floriano Armando
(supra).
21. We hold that the view taken by the Rajasthan
High Court in the case of Shambhu Dutt Shastri (supra)
followed and reiterated in the case of Ram Prasad
(supra) is the correct view. The view taken in the case of
Floriano Armando Luis (supra) cannot be said to have
laid down a correct law and is accordingly overruled.
11. It is clear from the perusal of the aforesaid enunciation that the
Power of Attorney holder can appear in the witness box in his personal
capacity and not on behalf of the principal. It is the principal who has to
depose and to be cross-examined before the trial Court and if he is not
in a position to appear before the trial Court a commission for recording
his evidence may be issued under the relevant provisions of the CPC.
The Coordinate Bench of this Court in the matter of Jethanand and
Company Vs. Mohan and Company reported in (2007) 3 M.P.L.J.
584 has considered the similar question and while placing reliance upon
the judgment in the case of Janki Vasudev Bhojwani (supra) and other
judgments of the Supreme Court in the matter of Chandradhar
Goswami and Ors. Vs. Gauhati Bank Ltd. reported in AIR 1967 SC
1058 and Central Bureau of Investigation Vs. V.C. Shukla and Ors.
reported in AIR 1998 SC 1406 has held as under:-
"13. By inviting my attention to the evidence of
Vishnu Kumar Jaiswal (P.W. 1), it has been argued that
as per this witness he was not having any personal
knowledge about the transaction that the goods were
sold to defendant and the plaintiff-firm did not examine
any of its partner having personal knowledge about the
transaction and delivery of goods to the defendant and
its non-payment and, therefore, an adverse inference
should have been drawn against the plaintiff. By placing
reliance on the decision of Supreme Court Janki Vashdeo
Bhojwani and Anr. v. Indusind Bank Ltd. and Ors.
2005(1) MPLJ 421, it has been submitted that Vishnu
Kumar Jaiswal is only the power of attorney holder of
plaintiff- firm, but he cannot appear as a witness on
behalf of the party in the capacity of that party. By
inviting the attention of this Court to Section 34 of the
Evidence Act, it has been contended that plaintiff-firm
was obliged to produce and prove the accounts but the
accounts are not filed and proved, therefore, the suit of
plaintiff cannot be decreed. In support of his contention,
learned Counsel has placed reliance on two decisions of
the Supreme Court, they are Chandradhar Goswami and
Ors. v. Gauhati Bank Ltd., MR 1967 SC1058 and Central
Bureau of Investigation v. V.C. Shukla and Ors. . On
these premised submissions, it has been argued that since
the plaintiff has failed to prove its case, the suit be
dismissed.
19. The Supreme Court in the case of Chandradhar
Goswami (supra), has specifically held that no person
can be charged with liability merely on the basis of
entries in books of account, even where such books of
account are kept in the regular course of business. The
Supreme Court has further laid down the law that there
has to be further evidence to prove payment of the money
which may appear in the books of account in order that a
person may be charged with liability thereunder, except
where the person to be charged accepts the correctness
of the books of account and does not challenge them. In
the present case, the cash book has not all been proved
nor there is any evidence thatentries in books of account
are regularly kept in the course of business. In order to
attract Section 34 of the Evidence Act it should come in
the evidence that entries in the books of account are
regularly kept in the course of business. This has not at
all been stated by said Vishnu Kumar Jaiswal in his
evidence nor the cash book has been proved and marked
as exhibit in the Trial Court by providing opportunity of
cross-examination to the defendant. I may further add
that such entries cannot by itself be sufficient for
fastening liability on any person. P.W. 1-Vishnu Kumar
Jaiswal, the sole witness, is not having any personal
knowledge about the transaction embodied in the
ledgers. The account books are not in themselves proved
the liability and the liability was required to be proved by
other evidence also. The entries in books of account
regularly kept in the course of business though relevant
are corroborative evidence and mere production and
proof of these entries is not by itself sufficient to charge
any one with liability and there must be some other
independent evidence to prove the transaction, therefore,
no reliance could be placed on these entries. Since there
is no corroborative evidence and the entries are also not
proved by examining the person who is acquainted or
under whose handwriting such entries were made, I am
of the view that plaintiff's suit cannot be decreed."
12. From the perusal of the aforesaid judgments passed by the
Hon'ble Supreme Court as well as the Coordinate Bench of this Court, it
is clear that it is only the principal, who can appear in the witness-box
and be cross-examined. As far as the Power of Attorney holder is
concerned, the Power of Attorney holder is having a right to conduct the
proceedings of the trial. As far as entering into the witness-box is
concerned, he cannot enter into the witness box on behalf of the
principal but can appear as a witness in his personal capacity only.
There are provisions in the CPC for getting the witnesses recorded by
issuance of commission also. Therefore, the learned learned Trial Court
was not justified in allowing the application filed by the respondent
No.1/plaintiff for impleading power of attorney as a party and changing
the nomenclature of the suit as plaintiff/Goverdhan through power of
attorney, Rohit as well as for recording of his evidence by the Power of
Attorney while passing the impugned order dated 25.03.2023, which in
the light of the aforesaid discussion, calls for interference. Accordingly,
to the said extent, the order dated 25.03.2023 is hereby set aside.
13. Resultantly, the present petition is partly allowed and disposed
of.
(Milind Ramesh Phadke)
Judge
PAWAN
MADHYA PRADESH BENCH GWALIOR,
ou=HIGH COURT OF MADHYA
pwn*
PRADESH BENCH GWALIOR,
2.5.4.20=b864d1ab4ace2215bfcf3ab3
01c34d631287f1b1cdd90b4a49f265f0
KUMAR
2d9d593f, postalCode=474001,
st=Madhya Pradesh,
serialNumber=61B9D129971D2EA4FD
4455ED49EA436EA65E26164BEEED89
153191C56E98CE21, cn=PAWAN
KUMAR
Date: 2025.01.30 11:18:15 +05'30'
