Vinita Shukla (smt.) v. Kamtaprasad & Anr.

Vishal Dhagat, J.:— Petitioner has filed the present miscellaneous petition being aggrieved by the order Annexure P/8 dated 20.6.2019 passed by Shri Pradeep Kushwaha, VII Additional District Judge, Satna in Civil Suit No. 86A/2014.

2. By the said order, the learned Trial Court has allowed the application filed by the plaintiff under Order III Rule 1 read with Section 151 of the Code of Civil Procedure. By allowing the said application, the handwriting expert Rakesh Trivedi was allowed to be cross-examined by the handwriting expert of the plaintiff, namely, Manmohan Kakkad on the conditions that (i) deficit stamp duty of Rs. 900/- will be paid on the power of attorney by the plaintiff and (ii) Manmohan Kakkad has given his consent for cross-examining the witness of defendant, namely, Rakesh Trivedi.

3. The impugned order Annexure P/8 dated. 20.6.2019 has been assailed before this Court on the ground that the special power of attorney filed by the plaintiff is deficitly stamped, therefore, on the basis of the said power of attorney, the permission cannot be granted to the power of attorney holder to cross-examine the witness.

4. It is submitted by learned counsel for the petitioner that the order of the Trial Court is contrary to the law laid down in the case of Kalyan Singh v. Sanjeev Singh reported in (2018) 4 MP LJ 277. There is no provision under the law that the handwriting expert of the plaintiff can examine the handwriting expert of defendant No. 3, therefore, the impugned order is liable to be set aside.

5. Learned counsel for the respondent No. 1 by filing the I.A. No. 9040/2019 submits that the plaintiff has given a valid power of attorney to the handwriting expert of the plaintiff to cross-examine the handwriting expert of the petitioner/defendant.

6. I have heard learned counsels appearing for the parties.

7. The impugned order dated 20.6.2019 (Annexure P/8) is assailed on the ground that the power of attorney has been deficitly stamped and the recipient of the power of attorney has not signed the power of attorney giving his consent, therefore, the application filed under Order III Rule 1 read with Section 151 of the Code of Civil Procedure ought to have been dismissed by the Trial Court. The Trial Court erred in giving opportunity to pay the deficit stamp duty and to file consent of the recipient of the power of attorney in the Court to the plaintiff.

8. The argument raised by learned counsel for the petitioner is correct. If a defective power of attorney is filed, the Court could not give permission to correct it by filing the signature and consent of recipient of power of attorney. As far as the deficit stamp duty is concerned, the power of attorney is to be impounded and to be sent before the competent authority for payment of deficit stamp duty and fine and when the document is validated only then it could be acted upon.

9. The respondents have submitted that they had already filed a valid special power of attorney but the same has not been disclosed by the petitioner in this miscellaneous petition.

10. On perusal of the impugned order Annexure P/8 dated 20.6.2019, it is clear that the application under Order III Rule 1 read with Section 151 of the Code of Civil Procedure has been allowed on a defective power of attorney. Document is neither properly stamped nor the recipient of power of attorney has signed the document. As per Section 34 of the Instrument Act, the instrument not duly stamped is inadmissible in evidence. The person by law authorized to receive evidence before whom instrument is produced and such person considers it to be not duly stamped should impound the same. The authority which impounds the instrument has to send it to the Collector for proper payment of stamp duty or fine or can himself collect the stamp duty and fine and send it to the Collector alongwith certificate that the stamp duty and fine has been paid.

11. In the present case, the Trial Court has asked the plaintiff to deposit the stamp duty of Rs. 900/- but no fine has been imposed as per law, therefore, the said order is bad-in-law. The Trial Court cannot ask the plaintiff to file consent of power of attorney holder because there is no signature of the recipient of the power of attorney holder on the instrument itself and the said instrument cannot be corrected by supplying the signature or consent later on. Hence, the impugned order Annexure P/8 dated 20.6.2019 is bad-in-law and the same deserves to be set aside.

12. The petitioner has also raised issue that Power of Attorney holder cannot cross-examine the handwriting expert witness of opposite party as mere is no such provision in law. Cross-examination is to be done by the Advocate engaged by party.

13. Section 1A of the Powers of Attorney Act, 1882 stipulates that “Power of Attorney” includes any instruments empowering a specified person to act for and in the name of the person executing it. By the power of attorney, the plaintiff can authorize any person to act on his behalf. Order 3 Rule 1 of the Code of Civil Procedure prescribes that any appearance, application or act in or to any Court, required or authorized by law to be made or done by a party in such Court, may, except where otherwise expressly provided by any law for the time being in force, be made or done by the party in person, or by his recognized agent, or by a pleading appearing, applying or acting as the case may be on his behalf. The word “except where otherwise expressly provided” means any other statute of C.P.C. has provided that such person can act in that way. Under the Powers of Attorney Act, 1882, when a power of attorney is given to a person then such person can act on behalf of the executor of the power of attorney and do all acts, which are to be performed by him. Plaintiff can cross-examine the witness in person and if he has given power of attorney to some person for cross-examination of such person then such person will step into the shoes of the plaintiff and can cross-examine the witness as provided under Order III Rule 1 of the Code of Civil Procedure, therefore, the contention of the petitioner that the power of attorney holder cannot cross-examine the witness is incorrect & invalid.

14. In view of the aforesaid facts & circumstances of this case, the impugned order Annexure P/8 dated 20.6.2019 passed by Shri Pradeep Kushwaha, VII Additional District Judge, Satna in Civil Suit No. 86A/2014 is set aside. However, it is observed that if a fresh power of attorney executed by the plaintiff giving the power to the handwriting expert Manmohan Kakkad to cross-examine the handwriting expert of defendant No. 3, namely, Rakesh Trivedi has already been filed as stated by the respondents in the Court then the Trial Court will consider the same as per law and pass fresh orders on it.

15. With the aforesaid observations, this miscellaneous petition filed by the petitioner is disposed of.

Order accordingly