@ HIGH COURT OF CHHATTISQARH AT BiLASPUR SB : HON'BLE SHRI JOSTICE PRITINKER DIWAKAR W.P. 227 N0. 2448^2008 PBTITIOMER DBFEMDANT ISESPONDENT Roopcliand Ghaxnecha, S/ o. Dhaorajm.al Qhaoiecha, aged about 58 years, R/o. Italiaii Belt & Luggage, S.ST^Plaza Coinplex, Power House, Road, Korba, Talisfl &. Distnct Korba (CG1 Versas Naiid Lal Sahu, S/o. . Late Mohaa Sai Sahu, aged about 83 years, R/o. Old Basti, Korba, Tahsil- & Distiict Korba (CG) WR2TPSTITIOK UNDBR ARTICLE 227 OF THE ^OMSTZTUTZOSi OF INDIA Appearaace: Shri Awadh Tripafhi, counsel for the petitioner. Shri Ravish Verma, couiisel for tb.e respondent. ORAL_ORDE.R (01.04.2009^ The preseiit writ petitioa has been ffled by tlie p.etitioner/defeiidant, cliallengiiig tlie order ciate.d 08.04.2008 (Aanexure P/1) passed by the Second Civil Judge, Class-I, Korba, by which, leained Court below has rejected the three applications as filed by fhe petitioner, Annexure. P/ 3 is fhe flrst. appUcation filed on behalf of the petitioner uiider Order 6 Rule 17 of fhe Code of Civil Procedurc, '^'"-•' ^' -z^ This appMcation has been rejected by the Court below by we2I reasoned order aiid flierefore, I do not Imd aay illegality ia the order^ rejecting fhe said application. Anotlier app.lication lias beeu filed by the petitioner -under Section 151 of the Code of Civil Procedure praymg tiiat Moti Lal Sahu, who is tiie holcler of power of attoniey on behalf of the plaiatiff Naixd Lal Seihu, caiinot file an afficlavit under Order 18 Rule 4 of the Code of Civil Procedure on belhalf of tlie plamtiff-Naad Lal SahLU, It has also been prayed that for fumishiag false affidavit, a crimm.ai case be registered agamst Moti Lal Salra, Vide order impugned dated 8.4,2008, leamed Court below has declined to grant bofh the reBefe, At tliis stage, Shri Tripafhi, ' subniits that lie is not questionnig the impugned order so far as it relates to refusal of i-egistration of a crimmal case again.st Moti Lal Saliu, He however, subiaits that the order iinpugned is illegal because the power of attoiTiey holder caiinot be permitted to lead evMence on behalf of tlie plainliff It has been fdrther subiaitted by hijn tliat neifher in tlie plamt nor iii tlie appUcatbn., as filed by the plamtifi; it has been m.enttoned as to why tlie plaiiitiff is not commg fon/vard and why fhe affidavit under Order 18 Rule 4 of tlie Code of Civil Procedure has been filed by the power ofattoniey holcler, Leaiiied counsel for the petitioner has furtiaer placed reMance upon .the decision of the Apex Court reported m . 2004 AIR" SCW 7064, Janki Vesshdc® Bhefwemi & An^thcr Vs» IwSM3ind Bank Ltd. &• Others ao.d submits that in this judgment, Hou'ble Apex Court ha% categorically held tliat as to ia what circiioistances, th.e power ofattoni.ey hoMer caa be permitted to lead evid.ence m place of plaiatiff Accordin.g to him, a .bare readm.g of the •plaitit zjj'.d tlie af5dav.it filed under Order 18 Rxile 4 of tlie 'Code of Cwil 0-7 -;2?' Procedurc shows lliat there are certain facts which are withui fhe personal 'knowledge of the plaiiitifT alone axid tlierefore, the power. of attoxney holder cannot lead evidence io. his place. Shri Tripa.tiii has drawn fhe attention of this Court. to para 13 of fhe judgnient of Hon^ble Apex Court iii Jaiiki Vashdeo Bhojwaiii (Supra) w.hich reads as under : "13. Order III, Rules 1 & 2, CPC, empowers the holder of power of attoro.ey to "acf' 011 behalf of tiie priiicipal, In our view the word "acts3? employed ia Order III, Rules 1 & 2, CPC, confines only in respect of'acts9' doue by the power of attoiiiey holder in. exercise of power granted by fhe iastninient. The temi ffactsw would not iaclude deposiag iii place and iastead of tJie piincipal. In otlier words, if fhe power of attoniey holder lias rendered soine "acts" ia pursuaiice to power of attoniey, he niay depose for fhe prmcipal io. respect of such acts, but he cannot depose for the piiacipal for the acts done by tfae prmcipal aad not by limi. Similarly, he caiinot depose for flie priB.cipal ixi respect of fhe niatter which only fhe principal caa have a persoiial knowledge and iti respect ofwhich tlie principal is entifled to be cross~examiiied."? Shri. Tripatlu, supports hi% argimient on the basis of the obser^ations made in para 18 ancl also otlier obseivations inade in fhe judgnient of Mon^le Apex Court ia Jan.ki Vashdeo Bhojwani (Supi-a) aiid subniits that Moti Lal Sab.u, who is the son of plaintiff caa f31e an. affidavit as a plamtiffs witoess but not in place of plaiiitiif aiid therefore, the impugned order of the Court below is bad m the eye of law to fhe above extent, Another application under Order 14 Rule 5 read wifh Section 151 of the Code of Civil Procedure (Annexiire P/5) was filed by ttie petitioixer, vAich was also rejected by tlie ioipugned order, \ However, at tiiis stage, Shri Tripafhi, leamed counsel \ for the petitiouer, subxaits fhat he is not pressiag tlie above appMcation, ^^- Replyiag to fhe argum.ents of the counsel for the petitioner, learaed counsel for the respondent/plamtiff, Shri Ravish Verma, veheinently opposes the petition aiid submits fhat fhe order impugned passed by the Court below is stdctiy iii accordance wifh law aad there is no inllrmity in. the same, Accordiag to him, as the plaintiff is not iii a position to lead evidence before fhe Court below, ro. liis place, the power of attoniey holder has filed the affldavit under Order 18 Rule 4 of fhe Code of Civil Procedure. He fiulher subniits that even his case is squarely covered on the basis of tlie jiidgnient cited ia Jaaki Vashdeo Bhojward (Supra) by the coxinsel for the petitiouer, where certain coHditions have been mentioned as to m wliich case the power ofattoniey holder cao. be pennitted to lead evidence. I have heard the rival subniissions raade by leamed coiuisel for the parties. I have also gone through fhe pleaduigs niade by tlie parties, especially fhe plahit axid th.e affidavit A bai'e readio-g of fhese two documents makes it very clear that fhere are certaiii facts wlxich caii be said to be withia the kiiowledge of tlie plaintiff alone aiid in view of fhe dict.um of the Hon^ble Apex Coml ia Janki Vashdeo Bhojward (Supra), it is only the plamtiff who can. file fhe affidavit under Order 18, Rule 4 of the Code of CivU Procedure and his power of attomey holder cannot be permitted to lead evidence ia his place. Accordiagly, fhe order impugned dated 8.04.2008 (Annexure P/1) so far as it relates to rejection of the petitioner's application, iii respect of rejection of the affidavit filed under Order 18 Rule 4 oftlie Code ofCivil Procedure, is \ set aside, The origm.al plaiatiff-Naiid Lal Sahu wouM be at \ Hberty to file fresh affidavit under Order 18 Rule 4 of fhe i Code of Civfl Procedure, if so advised. -^- At this stage, Shri Ravish Verma, leamed counsel for the respondent subniits that the original plamtiif be permitted to examiae on cominission. At tliis stage, this relief canuot be granted to the plaioLtiff. He is at liberty to file suitable application ia accordaace wifh law before tlie Court below, which would be decided in accordaiice with law. The petition is allowed to the above extent, No order as to costs, Sd/- Pritinker Diwaker Judge SugLina