1 WP 11474.2010 - [ J ] IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD WRIT PETITION NO. 11474 OF 2010 Sow. Premlata W/o Rameshchandra Behede Age : 53 Yrs., Occ. Business, R/o : 44, M.I.D.C., Jalgaon, Tq. & Dist. Jalgaon. .... PETITIONER V E R S U S 1. M/s Gokul Industries A Registered partnership firm Through Sarladevi W/o Shshikant Jain Age : 47 Yrs., Occ. Business, R/o : 126, Ramesh Sadan, Near R.R. School, Tq. & Dist. Jalgaon. 2. Sarladevi W/o Shshikant Jain Age : 47 Yrs., Occ. Business, R/o : 126, Ramesh Sadan, Near R.R. School, Tq. & Dist. Jalgaon. 3. Sow. Padmadevi W/o Arvindkumar Jain Age : 53 Yrs., Occ. Business, R/o : B-3, Shiv Parvati Co-operative Society, Nerul, Washi, Navi Mumbai. 4. Omprakash S/o Ganeshlal Jethlia 2 WP 11474.2010 - [ J ] Age : 47 Yrs., Occ. Business, R/o : 149, Bhavani Peth, Jalgaon. 5. Shantilal S/o Hiralal Jain Age : 77 Yrs., Occ. Business, R/o : 8, Vijay Colony, Jalgaon, Tq. & Dist. Jalgaon. 6. Subhashchandra Harakchand Jain Age : 50 Yrs., Occ. Business, R/o : RG-56, M.I.D.C., Jalgaon, Tq. & Dist. Jalgaon. .... RESPONDENTS Mr. S.V.Natu, Advocate for the Petitioner. Mr. J.R.Shaikh, Advocate for Resp. Nos. 1 to 3. CORAM : S.V. GANGAPURWALA, J. DATE OF JUDGMENT : 05/07/2011 ORAL JUDGMENT : 1. Rule. Rule made returnable forthwith. With the consent of the learned counsel for the parties, taken up for final hearing. 2. The present petitioner is the original plaintiff, had filed Suit for dissolution of partnership, rendition of accounts and recovery of amount. The respondents vide the Written Statement, controverted the case of the plaintiff. After the issues were framed, the parties went on trial. The 3 WP 11474.2010 - [ J ] plaintiff led her evidence through her power of attorney holder husband. The present respondents filed an application ( Exh. 65 ) contending that as the power of attorney holder does not have the personal knowledge, the Examination-in-Chief filed by the power of attorney holder can not be considered and the Suit be dismissed for non prosecution. Initially, vide Order dated 21/11/2006, the learned trial Judge rejected the application. The said order was assailed in the Writ Petition before this Court by the defendants in Writ Petition No. 1261 of 2007. This Court allowed the said Writ Petition by quashing and setting aside the order and directed the trial Court to re-consider the application ( Exh. 65) in light of the Judgment of the Apex Court in the case of Janki Vashdeo Bhojwani and another V/s Indusind Bank Ltd., and others reported in ( 2005) 2 Supreme Court Cases – 217. Thereafter, the learned trial Judge vide the impugned order, allowed the application ( Exh. 65 ) and struck down the evidence i.e. Examination-in-Chief of the power of attorney holder of the plaintiff. The said order is assailed in the present Writ Petition by the petitioner. 3. Mr. Natu, the learned counsel for the petitioner submits that the learned trial Judge has framed the issues on hand. The plaintiff is entitled to lead the evidence through his power of attorney, who has knowledge of the events, facts and all the attending circumstances. There 4 WP 11474.2010 - [ J ] was no reason to set aside the said Examination-in-Chief of the said power of attorney holder. The evidenciary value can be considered only after the said power of attorney holder is cross examined. 4. Mr. Javed Shaikh, the learned counsel for the respondent nos. 1 to 3 submits that the power of attorney is not entitled to depose in respect of the facts which are to the knowledge of the plaintiff. The plaint nowhere discloses that power of attorney holder is in know of the facts . The said power of attorney holder was disqualified to lead any evidence and as the said witness was disqualified, his Examination-in-Chief could not have been considered and the learned trial Judge has rightly set aside the said Examination-in-Chief. According to the learned counsel, the term ‘ acts ’ would not include deposing in place of the principal and in respect of facts which are to the personal knowledge of plaintiff. He has not done any work pursuant to the power of attorney and as such could not have deposed. According to the learned counsel, the said affidavit by way of Examination-in-Chief can not be received in evidence. 5. The petitioner has made it clear that the evidence of power of attorney holder Rameshchandra is on behalf of the plaintiff and not as a witness. A power of attorney holder is entitled to depose in respect of the 5 WP 11474.2010 - [ J ] facts which are to his personal knowledge. As per the Judgment of the Apex Court in a case of Janki Vashdeo Bhojwani referred supra, a power of attorney holder can not depose in respect of the facts, which only the principal can have the personal knowledge and in respect of which the principal is entitled to be cross examined. A power of attorney holder on behalf of the plaintiff can not be restrained or prohibited from deposing in respect of the facts, which are to his personal knowledge. What credence is to be given to the evidence, is a different matter altogether. Whether the said evidence, which is led is proved to be based on facts to the personal knowledge of the power of attorney holder can only be judged after the evidence is read and is cross examined. It would be too premature at this stage to struck of the said Examination-in-Chief of the power of attorney holder. It is after reading the said Examination-in-Chief and the cross examination, if any, the Court would be in a position to come to the conclusion as to whether the said Examination-in-Chief satisfies the test laid down by the Apex Court in the case of Janki Vashdeo Bhojwani referred supra. 6. In the result, the impugned order is quashed and set aside and an application ( Exh. 65 ) is rejected. 6 WP 11474.2010 - [ J ] 7. Taking into account the pendency of the Suit since the year 1998, the trial Court shall endeavour to dispose off the Suit as expeditiously as possible. 8. Rule is accordingly made absolute . No costs. [ S.V. GANGAPURWALA,J. ] KNP/WP 11474.20110 - [ J ]