By invoking powers of this Court under Article 227 of the Constitution, the petitioneroriginal plaintiff has prayed in the present petition to set aside order dated 26.12.2006 below Exh. 89, passed by learned Principal Senior Civil Judge, Rajkot in Regular Civil Suit No.1653 of 1995 whereby the prayer of the original plaintiff permitting him to reopen his evidence came to be rejected. The plaintiff had led evidence through is power of attorney holder, but wanted to reopen his evidence and give evidence himself on the ground that decision was delivered by the Supreme Court that power of attorney holder cannot depose on behalf of principal. 1.1 The petition was admitted on 24.01.2008 and interim relief in terms of paragraph 8(C) was continued, staying further proceedings of the suit.
2. The suit of the plaintiff is for declaration that the surrender deed regarding handing over of possession of the shop of which he was tenant is illegal and that he is entitled to allotment of alternative shop as against defendant No.1 landlord. The shop went into roadline in widening of road by the corporation. Dispute between the defendant No.1 landlord and the plaintiffpetitioner arose regards entitlement of shop at alternative place to be offered by the Corporation. It is the case of the plaintiff in the plaint that the defendant No.1 landlord misrepresented before the Corporation that he had handed over possession by executing a writing, which according to petitionertenant was for different purpose and that he continues to be the tenant.
2.1 The learned Judge dismissed application Exh. 89 observing that the plaintiff had opportunity to lead the evidence and that he chose to give evidence through power of attorney holder. The learned Judge observed that the plaintiff had surrendered the tenancy rights and subsequently the shop was demolished.
3. Heard learned advocate Mr. Sandeep N. Bhatt for the petitioner. Rule is served on respondent No.1, however nobody appears on its behalf. Mr. Nishant Lalakiya, learned advocate has appeared for respondent No.2.
3.1 Learned advocate for the petitioner submitted that because of decision rendered in Janki Vasudev Bhojwani & Anr. Vs. Indusind Bank Ltd. & Others [(2005) 2 SCC 217] holding that power of attorney cannot depose in place of and instead of principal, his suit may fail. He submitted that serious prejudice would be caused to the plaintiff as the evidence led through power of attorney holder may be rejected in view of decision in Janki Vasudev (supra). According to learned advocate, the learned Judge ought to have considered the prayer for reopening of evidence favourably as otherwise plaintiff’s suit would fail on such technical ground.
3.2 It was submitted, with reference to provision of Order XVIII, Rule 17A of the Code of Civil Procedure, 1908, which came to be deleted from statute book with effect from 1.7.2002, that it enabled the Court at any stage of a suit to recall any witness examined earlier and to put such questions to him as it deems fit. It was submitted that the power was exercisable by the Court either on its own motion or on an application filed by any of the parties, requesting the Court to exercise the said power. He then relied on decision of Supreme Court in K. K. Velusamy vs. N. Palaniswamy [ (2011) 11 SCC 275].
3.3 Learned advocate further submitted that there being no express prohibition in granting the prayer of the plaintiff made in Exh. 89 application, the learned Judge ought to have considered it by exercising powers under section 151 of the Code in the interest of justice. He made reference to Order XVIII, Rule 17 also, which provide that court may at any stage of a suit recall any witness, who has been examined and may (subject to the law of evidence for the time being in force) put such questions to him as the court thinks fit.
3.4 In K. K. Velusamy (supra), Supreme Court considered relative scope of provisions of Order XVIII, Rule 17A (deleted), Order XVIII, Rule 17, visavis inherent powers of Section 151 of the Code. Following observations are relevant:
“ Order 18 Rule 17 of the Code enables the court, at any stage of a suit, to recall any witness who has been examined (subject to the law of evidence for the time being in force) and put such questions to him as it thinks fit. The power to recall any witness under Order 18 Rule 17 can be exercised by the court either on its own motion or on an application filed by any of the parties to the suit requesting the court to exercise the said power. The power is discretionary and should be used sparingly in appropriate cases to enable the court to clarify any doubts it may have in regard to the evidence led by the parties.”
“ Order 18 Rule 17 of the Code is not a provision intended to enable the parties to recall any witnesses for their further examinationinchief or crossexamination or to place additional material or evidence which could not be produced when the evidence was being recorded. Order 18 Rule 17 is primarily a provision enabling the court to clarify any issue or doubt, by recalling any witness either suo motu, or at the request of any party, so that the court itself can put questions and elicit answers. Once a witness is recalled for the purpose of such clarification, it may, of course, permit the parties to assist it by putting some questions.”
4. In the present case, from the impugned order it appears that one Mr. Jignesh Kiritkumar Shah, who is the son of the plaintiff and also power of attorney holder, submitted affidavit under Order XVIII, Rule 4 of 'the CPC' ( Exh.31) which was treated as deposition on oath. Learned advocate for the petitioner has not produced deposition of plaintiff’s power of attorney which is in form of affidavit on oath (Exh.31). The contents of the evidence of the plaintiff is, therefore, not known.
4.1 Janki Vashdeo Bhojwani & Anr. (supra) does not lay down absolute proposition of law that power of attorney holder can not depose or lead evidence on behalf of the principal. It holds that, if the power of attorney has rendered some “acts” in pursuance of power of attorney, he may depose for the principal in 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. In other words, evidence by power of attorney holder is not permissible in respect of “acts” done by him which are not in pursuance of power of attorney. Secondly, he cannot also depose in respect of the matters within personal knowledge of the principal.
4.2 It is not possible to accept prayer of the petitioner plaintiff for reopening his evidence has made in Exh.89 application. The contents of evidence of power of attorney holder at Exh.31 is not known, having not be produced on record of the present petition, the evidence of both the sides is closed and the trial of the suit has reached the fag end. If the plaintiff is permitted to lead his evidence afresh, it would delay the completion of trial of the suit pending since 1995. Therefore, prayer to permit the plaintiff to reopen his evidence is liable to be rejected and is rejected.
5. At the same time, a party to the suit should be given a fair chance to prove his case. Considering the provisions of Order 18 Rule 17 and section 151 of the Code of Civil Procedure, 1908 and scope thereof, discretion is available to the court trying a suit and it may exercise its discretion in a given case. Considering this position in the facts and circumstances of the case, it will be just to give limited opportunity to the plaintiff within permissible parameters of law without permitting reopening of evidence and by putting him to appropriate terms.
5.1 Therefore, the following directions will met with interest of justice.
(i) It will be open for the petitioner to make application requesting the trial court by making out specific aspects/ matters from the evidence led at Exh. 31, that such aspects/ matters required clarification as they were in his exclusive personal knowledge.
(ii) Such application may be made by the petitioner on or before 10.02.2012.
(iii) The applicant shall not travel beyond Exh. 31, nor shall refer any additional fact.
(iv) Petitioner shall deposit cost of Rs.1,500/ with the trial court along with making the application.
(v) The trial court shall look into such application, if made by the petitioner as above, and consider exercising its discretion whether any issue or doubt from the aspects pointed out by the plaintiff in his application is required to be clarified. On being so satisfied, the trial court may put questions to the petitionerplaintiff seeking clarification and elicit answers on such issues or on the issues which it may need clarification on its own.
(vi) The above exercise shall be completed within 15 days from the receipt of application of the petitioner.
(vii) Since the suit is of the year 1995, the trial court shall endeavor decide and dispose of the same as expeditiously as possible and preferably within 6 months.
6. With above observations and directions, the petition is disposed of. Rule is discharged. There shall be no order as to the costs.
Amit
[N. V. ANJARIA, J.]