Order 1

Order Details: Notice of Motion
Pdf Text: NM No.65018 in Suit No.446609
IN THE BOMBAY CITY CIVIL COURT AT BOMBAY
NOTICE OF MOTION NO.650 OF 2018
IN
S.C. SUIT NO. 4466 OF 2009
(CNR NO. MHCC010024622018)
Pooja Kejriwal ]…. Plaintiff
Versus
Amrita Raj jaisingh ]….Defendant
Appearance:
Smt. Sharmila Deshmukh, Advocate for plaintiff.
Shri. N.K. Singh, Advocate for defendant.
CORUM : SMT. S.S. NAGUR,
AD HOC JUDGE &
ASST. SESSIONS JUDGE,
(C.R.NO.13)
DATE : 16/11/2019
ORAL ORDER
1) The Notice of Motion is filed by plaintiff to reject the
evidence of the Constituted Attorney of defendant filed on
4.10.2017.
2) The Notice of Motion is supported by Affidavit of
Pooja Kejriwal the plaintiff. The plaintiff objected for the
evidence of defendant's Constituted Attorney on the ground that
he cannot deposed on behalf of the defendant. The defendant
did not examine herself. The Constituted Attorney cannot depose
about the defendant's personal knowledge of the matter nor can
be cross examined on those facts which are to the personal
knowledge of the defendant. Hence, prayed to allow the Notice
of Motion.
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3) The defendant has filed reply to the Notice of Motion
through Affidavit of Raj Gokuldas Jaisingh. He on oath denied
the contents of Notice of Motion. The defendant stated that there
is correspondence between him and the plaintiff, therefore, it
cannot be state that the Constituted Attorney has no knowledge
of the facts of the case. Hence, prayed to reject the Notice of
Motion.
4) Heard advocate Smt. Sharmila Deshmukh for
plaintiff and advocate Shri N.K. Singh for defendant. Perused the
contents of Notice of Motion and reply in support of affidavit of
both the parties. I have also gone through the record.
5) Advocate Smt. Sharmila Deshmukh has drawn my
attention to Para No.20 of written statement that the plaintiff
through her email address to husband of the defendant admitted
that the defendant has suffered loss as plaintiff pulled the deal
for quite some time as the contract was breached by the plaintiff.
The evidence adduced by husband of the plaintiff is not having
the personal knowledge about the evidence of the Constituted
Attorney does not disclose that he has having personal knowledge
of the facts of the case. Advocate for plaintiff has relied on the
authorities reported in as follows:
1. “Janki Vashdeo Bhojwani and another Vs. Indusind Bank Ltd and
Ors., (2005)2, Supreme Court Cases 217”.
“Order 3 Rules 1 and 2 CPC empower the holder of power of
attorney to “act” on behalf of the principal. In our view the word
“acts” employed in Order 3 Rules 1 and 2 CPC confines only to in
respect of “acts” done by the powerofattorney 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 of power of attorney, he may depose for the principal in
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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 of which only the
principal can have a personal knowledge and in respect of which the
principal is entitled to be crossexamined”.
2. “S. Kesari Hanuman Goud Vs. Anjum Jehan and Ors., (2013)12,
Supreme Court Cases 64”.
“It is a settled legal proposition that the power of attorney holder
cannot depose in place of the principal. The provisions of Order 3
Rules 1 and 2 CPC empower the holder of the power of attorney to
“act” on behalf of the principal. The word “acts” employed therein
is confined only to “acts” done by the power of attorney holder, in
exercise of the power granted to him by virtue of 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
preferred any “acts” in pursuance of the power of attorney, he may
depose for the principal in respect of such acts, but he cannot depose
for the principal for acts done by the principal, and not by him.
Similarly, he cannot depose for the principal in respect of a matter,
as regards which, only the principal can have personal knowledge
and in respect of which, the principal is entitled (sic liable) to be
crossexamined”.
3. “Man Kaur (Dead) By Lrs. Vs. Hartar Singh Sangha, (2010) 10
Supreme Court Cases 512”.
The Hon'ble Apex Court in para 18 has summarized the
position as to who should give evidence in regard to matters
involving personal knowledge.
(a) An attorney holder who has signed the plaint and instituted
the suit, but has no personal knowledge of the transaction can
only give formal evidence about the validity of the power of
attorney and the filing of the suit.
(b) If the attorneyholder has done any act or handled any
transactions, in pursuance of the power of attorney granted by the
principal, he may be examined as a witness to prove those acts or
transactions. If the attorneyholder alone has personal knowledge
of such acts and transactions and not the principal, the attorney
holder shall be examined, if those acts and transactions have to
be proved.
(c) The attorneyholder cannot depose or give evidence in place
of his principal for the acts done by the principal or transactions
or dealings of the principal, of which principal alone has personal
knowledge.
(d) Where the principal at no point of time had personally
handled or dealt with or participated in the transaction and has
no personal knowledge of the transaction, and where the entire
transaction has been handled by an attorneyholder, necessarily
the attorneyholder alone can give evidence in regard to the
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transaction. This frequently happens in case of principals
carrying on business through authorised managers/attorney
holders or persons residing abroad managing their affairs
through their attorneyholders.
(e) Where the entire transaction has been conducted through a
particular attorneyholder, the principal has to examine that
attorneyholder to prove the transaction, and not a different or
subsequent attorneyholder.
(f) Where different attorneyholders had dealt with the matter
at different stages of the transaction, if evidence has to be led as
to what transpired at those different stages, all the attorney
holders will have to be examined.
(g) Where the law requires or contemplated the plaintiff or
other party to a proceeding, to establish or prove something
with reference to his “state of mind” or “conduct”, normally the
person concerned alone has to give evidence and not an
attorneyholder. A landlord who seeks eviction of his tenant,
on the ground of his “bonafide” need and a purchaser seeking
specific performance who has to show his “readiness and
willingness” fall under this category. There is however a
recognised exception to this requirement. Where all the affairs
of a party are completely managed, transacted and looked after
by an attorney (who may happen to be a close family member),
it may be possible to accept the evidence of such attorney even
with reference to bona fides or “readiness and willingness”.
Examples of such attorneyholders are a husband/wife
exclusively managing the affairs of his/her spouse, a
son/daughter exclusively managing the affairs of an old and
infirm parent, a father/mother exclusively managing the affairs
of a son/daughter living abroad.”
6) On the other hand Advocate Shri N.K. Singh for
defendant has drawn my attention to the reply para 3 and 8 of
the Notice of Motion that defendant is having personal
knowledge and knows the facts of the case. He being husband of
the defendant can depose on behalf of the defendant and there is
a Power of Attorney on record executed by the defendant to
depose on her behalf. Hence, prayed to reject the Notice of
Motion.
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7) The defendant has filed affidavit of Raj Gokuldas
Jaisingh at Exh.16. The para No.1 of the Affidavit in handwritten
portion is that “I say that, on conversation of and in
knowledge of matter I am in possession of original power of
attorney which is produced”.
8) The Special Power of Attorney is annexed to the
Affidavit of evidence of defendant specifically gives right to the
Constituted Attorney i.e. Raj Gokuldas Jaisingh to file affidavit in
Suit No.4466 of 2009 between Pooja Kejriwal V/s. Amrita Raj
Jainsingh. The document's i.e. email in between the parties
shows that the husband of the defendant i.e. Raj Gokuldas
Jaisingh has received mail from the plaintiff. In the plaint the
plaintiff has relied on the email Exh.C issued by the defendant
through the email address “THE ATI”<theati@hotmail.com>”
dated 15.4.2008 to the plaintiff regarding the transaction for sale
of the suit flat. The said email address appears in the documents
filed by the defendant at list Exh.17 i.e. mail issued by the
plaintiff sent to the defendant's husband. The said email
reference to Mr. Raj Jaisingh.
9) I have gone through authorities relied upon advocate
for plaintiff. The Power of attorney holder in respect of personal
knowledge cannot adduce evidence unless he has knowledge of
the transaction. In the present facts of the case the defendant's
husband is involved in the transaction which could be gathered
from the email communication between the parties. The
defendant has given Power of Attorney to her husband to adduce
evidence in the suit. Hence, Notice of Motion is not tenable and
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pass following order:
ORDER
1. The Notice of Motion is rejected.
2. Accordingly Notice of Motion
disposed of.
3. No order as to costs.
Sd/
(S.S. Nagur)
Date : 16/11/2019 AdHoc Judge &
Asst. Sessions Judge,
City Civil Court,
Greater Mumbai.
Dictated on : 16/11/2019
Transcribed on : 18/11/2019
Signed on : 09/12/2019
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“CERTIFIED TO BE TRUE AND CORRECT, COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER”
DATE & TIME OF UPLOADING : NAME OF STENOGRAPHER
09.12.2019 & 4.30 p.m. : Mrs. V.U. Pawar
Name of the Judge (with Court no.) : HHJ Smt. S.S. Nagur
(CR no. 13)
Date of pronouncement of Judgment/ : 16.11.2019
Order
Judgment/Order signed by the P.O. on : 09.12.2019
Judgment/Order uploaded on : 09.12.2019
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