Shiv Kumar Sharma, J.:— Core question that springing for consideration in this revision is as to whether power-of-attorney holder of a party is entitled to appear as a witness on behalf of the said party?
2. This question arises in the following circumstances:
(i) The plaintiff-petitioner (for short the plaintiff) instituted a suit for injunction and possession of the property against the defendant non-petitioners (for short the defendants). The defendants filed written statement and issues were framed by the learned trial court. The case, therefore, was posted for recording the evidence of the plaintiff.
(ii) The plaintiff, in the meanwhile, moved an application praying that his son Satya Narayan, being his general power of attorney holder, may be allowed to appear as witness on his behalf. The defendant contested the said application. The learned trial court vide its order dated November 15, 1996 dismissed the said application. Hence this revision.
3. Before adverting to the rival contentions it is necessary to refer to relevant statutory provisions.
4. Rule 2 of Order 3 of Code of Civil Procedure provides thus:—
“Recognised agents. — The recognised agents of parties by whom such appearance, applications and acts may be made or done
(a) persons holding powers-of-attorney, authorising them to make and do such appearances, applications and acts on behalf of such parties.”
5. Section 118 of the Indian Evidence Act, 1872 provides thus:—
“All persons shall be competent to testify unless the Court considers that they are prevented from understanding the questions put to them, or from giving rational answers to those questions, by tender years, extreme old age, disease, whether of body or mind, or any other cause of the same kind.”
6. Mr. Ajeet Bhandari learned counsel appearing for the plaintiff, canvassed that the plaintiff is an old man and he is unable to appear in the court. He is suffering from ‘severe sensory normal hearing loss’ and has become deaf. Therefore, he has authorised his son Satyanarayan to act on his behalf and executed a general power of attorney in his favour. Learned counsel placed photo copy of judgment of this court in Roop Chand v. Narayan Lal (1) decided on 9.1.1986 by Hon'ble Mr. Dwarka Prasad, J. as then was, in which this court observed as under:—
“Thus the defendant is entitled to examine either Roop Chand or his power of attorney holder Kistoor Chand as a witness, even though his name has not been mentioned in the list of witnesses.”
7. It is evident that in Roop Chand v. Narayan Lal (supra) this court was only examining the question of inclusion of name of witness in the list and only a passing remarks was made in respect of examination of power-of-attorney holder or the party. Neither the provisions contained in Order 3 Rule 2 were discussed nor theword “acts” was interpreted.
8. On the other hand Mr. Kanta Prasad Sharma learned counsel for the defendants placed reliance on Shambhu Dutt Shastri v. State of Rajasthan (2) where this court (Hon'ble Dinker Lal Mehta, J. as he then was) in para No. 23 of the judgment propounded as under:—
“A general power of attorney holder can appear, plead and act on behalf of the party, but the cannot become a witness on behalf of the party. He can only appear in his own capacity. No one can delegate the power to appear in witness-box on behalf of himself. To appear in a witness box is altogether a different act. A general power of attorney holder cannot be allowed to appear as a witness on behalf of the plaintiff in the capacity of the plaintiff.”
9. I have given my anxious consideration to the rival contentions and carefully perused the impugned order as well as the authorities cited before me. I am of the considered view that word “acts” used in Rule 2 of Order 3 Code of Civil Procedure does not include the act of power of attorney holder to appear as a witness on behalf of a party. Power-of-attorney holder of a party can appear onlyas a witness in his personal capacity and whatever he has knowledge about the case, he can state on oath but he cannot appear as a witness on behalf of the party in the capacity of that party. If the plaintiff is unable to appear in the court a commission for recording his evidence may be issued under the relevant provisions of the Code of Civil Procedure and if the plaintiff is suffering from disease of deaf-ness, in the event also be may be examined with the help of the provisions contained in Section 119 of the Indian Evidence Act, 1872, which are applicable for the purposes of recording the evidence of a dumb witness. I am of the view that a deaf witness may also he examined in the same manner. Provisions contained in Section 119 of the Indian Evidence Act may be invoked in the instant case whichprovide thus:—
“A witness who is unable to speak may give his evidence in any other manner in which he can make it intelligible, as by writing or by signs; but such writing must be written and the signs made in open Court. Evidence so given shall be deemed to be oral evidence.”
10. In view of the aforesaid observations I do not see any good reason to interfere in the finding arrived at by the learned trial Court. There is no jurisdictional error in the impugned order and if it is allowed to stand, it would not occasion failure of justice. The trial court under Section 118 of the Evidence Act has rightly considered the matter.
11. In the result the revision fails and is hereby dismissed with no order as to costs.