IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH, NAGPUR WRIT PETITION NO. 4897/2007 (Sou. Smita Arun Kashikar vs. Shetkari Shikshan Prasarak Mandal, Wardha and others) -------------------------------------------------------------------------------------------------------- Office Notes, Office Memoranda of Coram, appearances, Court's orders or directions Court's or Judge's orders and Registrar's orders. CORAM : S.R.DONGAONKAR, J DATED : 18 th JUNE, 2008. 1] Heard Shri P.S.Sadavarte, Advocate, for the petitioner. 2] None present for respondents. 3] As per order of this Court dated 19th November, 2007, notice was issued to the respondent for final disposal of the petition, still none present. As such, it is heard finally. 4] The petitioner is taking exception to the order passed by the learned 9th Joint Civil Judge, Junior Division, Wardha, dated 21st July, 2007, below Exh.50 in R.C.S.No. 380/05, whereby he discarded the testimony of the husband of the petitioner who was holding power of attorney on her behalf. 5] Petitioner has filed the relevant suit for ejectment, recovery of possession of the suit property as well as arrears of rent and mesne profit. 6] In the suit, the husband of the petitioner holding power of attorney had filed an affidavit for leading evidence in examination in chief on behalf of the petitioner. 7] The present respondents who are defending the suit moved an application for discarding that evidence. 8] The reply of the petitioner was taken on record and after hearing the parties, the learned trial Judge passed the impugned order. He relied on the observations of the Apex Court in 2005 SAR (Civil Page No. 103 S.C.) (equivalent to 2005 (2) SCC 217, Janki Vashdeo Bhojwani and another vs. Indusind Bank Ltd., and others). According to the learned trial Judge, in view of the observations in the said decision, the plaintiff has to examine herself in the civil suit and the evidence of the holder of power of attorney cannot be led, unless she is examined. 9] Learned counsel for the petitioner has submitted that the said order is incorrect, improper and unjust, inasmuch as, the husband of the petitioner who is holding the power of attorney is in complete knowledge of the facts of the suit. In fact, the suit property was earlier owned by his mother, which was eventually, in view of the will of mother in law of the petitioner, transferred in her name. He has also submitted that in two other suits between the parties, the husband of the petitioner had led evidence on behalf of the petitioner being holder of power of attorney and the respondents/defendants did not challenge the said evidence, as in the present suit. Therefore, learned trial Judge should have rejected the application of defendants. 10] As earlier pointed out above, none appears for respondents. 11] It would be seen from the observations of the Apex Court in 2005 (2) SCC 217, Janki Vashdeo Bhojwani and another vs. Indusind Bank Ltd., and others that the power of attorney holder can not depose for principal in respect of matters of which only principal can have personal knowledge and in respect of which principal is liable to be cross-examined. 12] It does not appear to be the case of the respondents that some special facts were in the knowledge of the petitioner, for which her cross-examination in the suit was necessary. 13] Even otherwise, after allowing the evidence of the petitioner i.e. power of attorney holder of the petitioner, if it was necessary to call the plaintiff to enter into the witness box suitable orders could have been sought. Here the respondents are absent. They did not make out a case to show that husband of the petitioner is incapable for being examined to support the suit instituted by the petitioner. 14] In my opinion, therefore, the impugned order is liable to be set aside. However, granting liberty to the defendants to call the petitioner for evidence or for cross examination, if necessary, if certain facts are in her personal knowledge and for which cross examination is necessary. Obviously if she would not enter into witness box, on such order, required inferences can be drawn as regards her case in the suit. 15] In this view of the matter, the order of the learned Civil Judge, Junior Division, Wardha, dated 21st July, 2007, below Exh.50 in R.C.S.No. 380/05, is hereby quashed and set aside. The evidence adduced by the power of attorney holder be taken on record subject to the observations made above. 16] Petition stands disposed of in above terms. JUDGE Rvjalit