TMI Blog1999 (9) TMI 944X X X X Extracts X X X X X X X X Extracts X X X X ..... was adjourned to further date on which day, the respondents who are the defendants in the suit sought to raise an objection that the holder of Power of Attorney is not entitled to depose for and on behalf of the plaintiffs. Reliance was sought to be placed on a decision of the Rajasthan High Court in the matter of Ram Prasad v. Hari Narain and others. 3. The Trial Court placing reliance upon the judgments in the matter of Samdukhan v. Maddanlal, , The Anglo French Drug Co. Pvt. Ltd. v. R.D. Tinaikar, and in the matter of A.S. Patel and others v. National Rayon Corporation Ltd., held that adducing of evidence on behalf of the principal on the strength of the Power of Attorney amounts to pleading the case for the party and the P.W. 1, having entered the witness box on behalf of the plaintiffs in capacity of holder of the Power of Attorney, has actually performed the act of pleading for and on behalf of the plaintiffs. 4. Upon hearing Shri J.E. Coelho Pereira, Senior Advocate appearing for the petitioners and Shri Sudesh Usgaonkar, appearing for the respondents and on perusal of the records and various decisions cited across the bar, it is evident that in terms of order III of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on was as regards the right of a Registered Trade Marks agent to plead before the Registrar of Trade Marks. 6. Equally, it is true that this Court in the matter of AS. Patel and others v. National Rayon Corporation Ltd. (supra) has held that the expression appearance, application or act in or to any Court in Order III, Rule 1 of Civil Procedure Code does not include pleading and that the right of audience in Court, the right to address the Court, the right to examine and cross-examine witnesses, are all parts of pleading with which Order III does not deal at all. Again, these observations were in a matter wherein the petitioners therein had given a general Power of Attorney to one Shambuprasad in a Civil Revision Application and when the matter came up for hearing before the Court, the said Attorney Shambuprasad wanted to address the Court on behalf of the petitioners therein. The question, therefore, which arose for consideration in the said case was whether the holder of Power of Attorney could have addressed the Court on behalf of his principal. In other words, the question was whether a constituted Attorney could plead in the Court on behalf of the party to the case. 7. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... alf of the principal to depose before the Court. 9. Order XVIII, Rule 2 of Civil Procedure Code provides that on the day fixed for the hearing of a suit or on any other day to which the hearing is adjourned, the party having the right to begin shall state his case and produce his evidence in support of the issues which he is bound to prove. Rule 3-A of the said Order XVIII which was inserted by way of amendment, by Act 104 of 76, provides that where a party himself desires to appear as the witness, he shall do so before any other witness on his behalf is examined, unless the Court for the reasons to be recorded permits him to appear as his own witness at a later stage. The provisions contained in Rule 2 and Rule 3-A of Order XVIII of Civil Procedure Code clearly disclose that it is neither mandatory for the party to litigation to appear in person in order to state his case before the Court nor it is necessary to examine himself in support of his case. It is entirely in his discretion to examine himself as the witness or not. In case he desires to examine himself, he should appear before examining other witnesses on his behalf, unless otherwise specifically permitted by the Court ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the witness. It is true that the testimony of such person will definitely be subject to the scrutiny in the manner provided in the provisions contained in section 60 of the Evidence Act. Moreover, it would be in the realm of credibility of such testimony and not relating to the competency of a person to depose of behalf of some other person. 11. Even in the case of Samdukhan v. Maddanle (supra) the Rajasthan High Court has held that the words any appearance, application or acts in Order III, Rule 1 of Civil Procedure Code do not include pleadings and recognised agent holding a General Power of Attorney therefore cannot be allowed to plead and argue for his principal under the said rule. In other words, both the decisions of this Court referred to above as well as that of the Rajasthan High Court which has been relied upon by the Trial Court do not in any manner relate to the issue as to whether a person holding a Power of Attorney on behalf of the party to the suit can depose for and on behalf of his principal or not, but they relate to the issue of Power of such Attorney to plead and argue on behalf of the party before the Court. The function of pleading and arguing before t ..... X X X X Extracts X X X X X X X X Extracts X X X X
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