Rajasthan High Court - Jodhpur
Lrs. Of Late Shambhudayal vs Manoj Kumar on 7 October, 2024
Author: Rekha Borana
Bench: Rekha Borana
[2024:RJ-JD:40781]
HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR
S.B. Civil Writ Petition No. 15041/2024
1. Lrs. Of Late Shambhudayal, S/o Late Sh. Parmeshwarlal
Lohiya Agarwal Since Deceased Through
1/1. Manoj Kumar S/o Late Sh. Shambhudayal, Aged About 48
Years, Resident Of Churu (Raj.) Trustee.
1/2. Shankarlal S/o Late Sh. Banarasilal, Aged About 60 Years,
Resident Of Churu (Raj.) Trustee.
1/3. Sumit Kumar S/o Late Sh. Shambhudayal, Aged About 46
Years, Resident Of Churu (Raj.) Trustee.
1/4. Ramavtar S/o Late Sh. Kishanlal, Aged About 55 Years,
Resident Of Churu (Raj.) Trustee.
----Petitioners
Versus
1. Manoj Kumar S/o Sh. Madanlal, Resident Of Lohiya Bazar,
Churu (Raj.).
2. Dr. Sanwarmal Sharma, President, Lions Club, Churu.
3. Sub Registrar, Churu.
4. Dinesh Kumar S/o Sh. Ganeshmal, Resident Of Ward No.
14, Churu (Raj.)
5. Ajay Kumar S/o Late Sh. Kishanlal, Resident Of Churu
(Raj.)., Trustee
----Respondents
For Petitioner(s) : Mr. Sandeep Shah Sr. Adv. Asst by
Ms. Akshiti Singhvi
For Respondent(s) : Mr. Rajeev Purohit
HON'BLE MS. JUSTICE REKHA BORANA
Order
07/10/2024
1. The present writ petition has been preferred against the
order dated 23.08.2024 passed by the Senior Civil Judge, Churu in
Civil Original No.541/2014 whereby two applications:- one under
[2024:RJ-JD:40781] (2 of 8) [CW-15041/2024]
Order XVIII Rule 3-A read with Section 151 of the Code of Civil
Procedure as preferred by the plaintiffs and the other under Order
VII Rule 14, read with Section 151, CPC as preferred on behalf of
defendant No.4, have been decided.
Vide order impugned dated 23.08.2024, the application
under Order XVIII Rule 3-A, CPC as preferred by the plaintiffs has
been rejected and the application under Order VII Rule 14, CPC as
preferred on behalf of defendant No.4 has been allowed.
2. Vide the application under Order XVIII Rule 3-A, CPC it was
submitted on behalf of the plaintiffs that the affidavit for
examination-in-chief as filed by one Hukmichand be returned back
to him or be kept in 'Part D'. It was submitted that Hukmichand
was a stranger to the suit and his name was not reflected in the
list of witnesses as filed by the defendants. Therefore, he could
not be permitted to be examined on behalf of the defendant Lions
Club.
3. Vide application under Order VII Rule 14, CPC preferred on
behalf of defendant No.4, it was submitted that vide an authority
letter dated 10.07.2016, all the rights to contest the matter on
behalf of the defendant Club were given to Hukmichand and it was
prayed that the document dated 10.07.2016 be taken on record.
4. The learned Trial Court, while allowing the application under
Order VII Rule 14, CPC permitted the authority letter dated
10.07.2016 to be taken on record and while rejecting the
application under Order XVIII Rule 3-A, CPC permitted
Hukmichand to lead his evidence.
5. Learned senior counsel appearing for the petitioners
submitted that Hukmichand could not have been permitted to lead
[2024:RJ-JD:40781] (3 of 8) [CW-15041/2024]
evidence on behalf of the defendant Club as he was admittedly not
an Executive Member of the Club. Only the President or any
Executive Member of the Club, so authorized, could have
examined himself on behalf of the Club. Counsel submitted that
firstly, the alleged authority letter dated 10.07.2016 could not be
termed to be a 'Power of Attorney' so as to entitle Hukmichand to
lead evidence on behalf of the Club and secondly, even if the said
document was to be termed to be a Power of Attorney, the same
was not a registered document which could be acted upon.
Further, as is the settled position of law, a Power of Attorney
holder could not be permitted to lead evidence on behalf of the
Club who itself had its authorized Executive Members and as per
the mandate of Order XVIII Rule 3-A, CPC, the
President/Secretary of the Club ought to have first examined
himself.
6. Further, while arguing on the application under Order VII
Rule 14, CPC, Counsel submitted that the alleged authority letter
dated 10.07.2016 was filed for the first time only in the year
2024, after a period of more than eight years, without assigning
any reason as to why the same was not filed earlier. Further, it
was only a photocopy of the document which has been permitted
to be taken on record, which is totally dehors the provisions of
law.
With the above submissions, learned counsel prayed for
quashing of the order dated 23.08.2024.
7. Per contra, learned counsel for the respondents, while
supporting the order dated 23.08.2024, submitted that
Hukmichand was not at all a stranger to the suit but was the
[2024:RJ-JD:40781] (4 of 8) [CW-15041/2024]
ex- Vice President of the Club. Further, he had been authorized by
the Executive of the Club vide authority letter dated 10.07.2016 to
represent the Club and contest the suit on its behalf. Further,
Hukmichand was admittedly, a signatory to the gift deed in
question and hence, could not have been termed to be a stranger.
With regard to the application under Order VII Rule 14, CPC
counsel submitted that no occasion arose earlier for the document
dated 10.07.2016 to be placed on record. It is only when the
affidavit of Hukmichand was filed that the said document was
necessitated and hence, the same was annexed along with the
affidavit. The veracity of the said document being not under
challenge by any of the Executive Members of the Club, the
learned Trial Court rightly permitted the same to be taken on
record.
8. Heard learned counsel for the parties and perused the
material available on record.
9. So far as the ground raised by learned senior counsel for the
petitioners to the effect that Hukmichand was a stranger to the
suit is concerned, a reference to the pleadings as made by the
plaintiffs in paragraph No.11 of the plaint, becomes relevant. In
paragraph No.11 of the plaint it was pleaded as under:
";g fd xr fnuksa izfroknh laΠ^^1** Jh vkseizdk"k
yksfg;k pw: vk;s rFkk mUgksaus oknh Lo- "kaHkqn;ky
ls uksgjs dk dCtk ekaxk rks Lo- "kaHkqn;ky oknh us
bldk vk"; iwNk rks mUgksus dgk fd os bl uksgjk
dks yksbZUl Dyc pw: dks nku esa nsxsaA ftl ij Lo-
"kaHkqn;ky oknh us vkifr dh og dgk fd ;g VªLV
lEifr gS vkidks dksbZ vf/kdkj nku dk ugha gS
ftl ij os oknh Lo- "kaHkqn;ky ls ukjkt gks x;s o
[2024:RJ-JD:40781] (5 of 8) [CW-15041/2024]
Jh gqdehpUn yksfg;k Jh vt;dqekj ctkt ls
lkt djds oknxr uksgjs ckcr eq[kR;kjukek fnukad
27&3&2002 dks izfroknh la[;k 2 vt;dqekj ds
uke fy[kk & udy eq[kR;kjukek is"k gSA"
10. Further, it is an admitted fact on record that Hukmichand
was the person who accepted the gift deed on behalf of the Club
from Omprakash Lohia, owner of the property in question.
Furthermore, it is also not disputed on record that Hukmichand
had been the Vice President of the Club in question.
It is also admitted on record that the Executive Members of
the Club change every year as per the Constitution of the Club. Dr.
Sanwarmal Sharma who had been impleaded as defendant No.4 in
the suit in the capacity of the President of the Club is admittedly
not the President as of date. Meaning thereby, the President and
the Secretary of the Club change every year and it cannot be
concluded that Dr. Sanwarmal Sharma, who had been impleaded
in the capacity of the President at that point of time, could only
lead evidence on behalf of the Club. Dr. Sanwarmal Sharma not
being the President at this stage, could not have examined himself
in the capacity which he had been impleaded.
11. So far as the deposition of the present President/Secreatary
is concerned, legally, the Club is an artificial person and has to be
represented through some person. As is clear on record, the
representatives/Executive Members of the Club issued an
authority letter in favour of Hukmichand to represent the Club on
their behalf. The said authority letter has not been challenged by
any of the existing/surviving members of the Club. Meaning
thereby, the authority letter dated 10.07.2016 remains
uncontroverted and undisputed.
[2024:RJ-JD:40781] (6 of 8) [CW-15041/2024]
12. It is trite law that an artificial body/person has to be
represented by a corporeal person. The power/authority to
represent an artificial body in legal proceedings can be conferred
by executing a letter/resolution on behalf of concerned artificial
body. An authorisation letter conferring the said power/authority is
valid as held by the Andhra Pradesh High Court in the case of Y.
Venkata Reddy vs. Jagadamba Enterprises and Ors. ; 2002
Civil CC 185 relying upon the judgments of Hon'ble Apex Court in
the case of MMTC Limited vs. Medchal Chemicals and
Pharma Private Limited ; AIR 2002 SC 182 and Associated
Cement Co. Ltd. vs. Keshvanand ; AIR 1998 SC 596. It was
held as under :-
"10. Undoubtedly, as can be seen from the
description of the complainant in the complaint, it is
M/s. Jagadamba Enterprises, which is no doubt a
proprietary concern and therefore is a juristic person.
This being a body corporate, it shall have to
necessarily be represented by a corporeal person. In
that view of the mater, I see no merits in the
contentions raised by the learned Counsel. The legal
position is now settled in view of the judgment of the
Apex Court referred to supra that a person can
represent the corporate even on an authorisation
letter and it does not require any supporting
resolution to be passed by the concern. Therefore,
there is no substance in the contentions raised in this
batch of cases."
Further, the most relevant aspect of the matter is that
Hukmichand was a signatory to the gift deed which is the bone of
contention in the present suit. Hukmichand accepted the gift on
[2024:RJ-JD:40781] (7 of 8) [CW-15041/2024]
behalf of the Club and hence, he cannot be termed to be a
stranger, by any stretch of imagination.
13. So far as the provision of Order XVIII Rule 3-A, CPC is
concerned, the same would not even apply in the present matter
as the defendant Club being an artificial person, cannot appear as
a witness and has to be represented through some natural person.
Further, the said provision does not provide that it is mandatory
for the plaintiff to appear in the witness box. It is only if the
plaintiffs wish to appear themselves that they would be required
to appear first before examination of any other witnesses.
Therefore, even if it is assumed that Hukmichand is seeking to
appear as a witness in his individual capacity and not representing
the Club, he cannot be restrained from so appearing.
14. So far as the effect of non-appearance/non-examination of
any of the Executive Member of the Club, first, is concerned, the
same would be an issue for consideration at the time of final
hearing or at the stage, if any of the Executive Members file an
affidavit or wish to get himself/themselves examined at a later
stage. It is needless to observe that the plaintiffs would be at
liberty to oppose the same at that stage.
15. So far as the document dated 10.07.2016 is concerned, as is
evident on record, an original of the said document was very well
carried by the witness along with him. The Court was therefore,
within its jurisdiction to permit the same to be taken on record.
16. So far as permitting the said document to be exhibited is
concerned, firstly, as is the settled position of law, mere marking
of a document as an 'exhibit', would neither dispense the need to
prove the genuineness of the document nor the contents of the
[2024:RJ-JD:40781] (8 of 8) [CW-15041/2024]
document. With respect to the need to prove a document, as held
by the Hon'ble Apex Court in the case of Sait Tarajee
Khimchand and Ors. Vs. Yelamarti Satyam and Ors.; AIR
1971 SC 1865, "The mere marking of an exhibit does not
dispense with the proof of documents."
17. With respect to proving contents of a document, the Hon'ble
Apex Court while referring to the principles relevant for examining
the admissibility of secondary evidence in the case of Vijay Vs.
Union of India (UOI) and Ors.; 2023 (4) RLW 3528 (SC),
held as under:
"33.9 Mere production and marking of a document
as an exhibit by the Court cannot be held to be due
proof of its contents. It has to be proved in
accordance with the law."
In view of the above ratio and as is the settled position of
law, the plaintiffs would definitely be at liberty to object to the
marking of the document as an exhibit, if the witness does not
carry the original copy of the same with him at the stage of
cross-examination.
18. In view of the above analysis and observations, the order
impugned being totally in consonance with law, does not deserve
any interference and the present writ petition is hence,
dismissed.
19. Stay petition and all pending applications, if any, stand
disposed of.
(REKHA BORANA),J
404-SPhophaliya/AbhishekK/-
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