S.U.Khan - (1.) -At the time of arguments, no one appeared on behalf of contesting respondent No. 2, Ashok Kumar Awasthi, hence only the arguments of the learned counsel for the petitioner were heard.
(2.) PETITIONER has instituted O. S. No. 99 of 1991 against respondent No. 2, Ashok Kumar Awasthi. In the suit, plaintiff petitioner filed an application 73ga stating therein that she was suffering from heart disease, hence she had executed a power-of-attorney in favour of her husband indicating therein that whatever her husband would do in the suit would be acceptable to her and binding upon her. The defendant opposed the application and stated that plaintiff was not ill as alleged by her. Power-of-attorney was also filed alongwith the application. Copy of the said power-of-attorney is Annexure-4 to the writ petition. In the said power-of-attorney, after recording that she was suffering from heart disease and unable to move, plaintiff stated that she was appointing her husband as general power-of-attorney holder and authorising him to do pairvi in the suit, to enter into compromise, to give statement and to do all other things, which are necessary for the suit and all the actions done by her husband, Chandra Mohan would be deemed to have been done by her. Trial court/IInd Additional Civil Judge, Junior Division allowed the plaintiff's application 73ga on 1.9.1998. The learned trial court referred to Order III, Rules 1 and 2, C.P.C. and Section 118 of Evidence Act. On behalf of the defendant, an authority of Rajasthan High Court in Ram Prasad v. Hari Narain, AIR 1998 Raj 185, was cited and was considered by the trial court. Against the order of trial court dated 1.9.1998, defendant filed Civil Revision No. 65 of 1998. A.D.J./Special Judge, E.C. Act, Banda, allowed the revision on 14.10.1998 and set aside the order of the trial court dated 1.9.1998. The said order of the revisional court has been challenged through this writ petition. Revisional court considered and placed reliance upon the aforesaid authority of Rajasthan High Court and some other authorities of this Court. In Order III, Rule 1 of C.P.C., it is provided as under : "1. Appearances, etc., may be in person, by recognised agent or by pleader.-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 recognised agent, or by a pleader [appearing, applying or acting, as the case may be] on his behalf : Provided that any such appearance shall, if the Court so directs, be made by the party in person."
(3.) SECTIONS 118 and 120 of the Evidence Act are also quoted below : "118. Who may testify.-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. Explanation.-A lunatic is not incompetent to testify, unless he is prevented by his lunacy from understanding the questions put to him and giving rational answers to them. 120. Parties to civil suit, and their wives or husbands. Husband or wife of person under criminal trial.-In all civil proceedings the parties to the suit, and the husband or wife of any party to the suit, shall be competent witnesses. In criminal proceedings against any person, the husband or wife of such person, respectively, shall be a competent witness." Unfortunately, both the courts below did not consider Section 120 of the Evidence Act.;