- (1.) Heard the learned Advocate for the parties. The propriety of the Order No. 163 dated 2nd January, 2013 passed by the learned Judge, City Civil Court, 2nd Bench at Calcutta in Title Suit No. 1330 of 1997 has been called in question in the instant revisional application wherein learned trial court while disposing of the application dated 10th August, 2011 rejected the same by the impugned order. In the said application dated 10th August, 2011, the petitioner herein being the Sebait cum the Managing trustee of the deity, Sri Sri Iswar Sridhar Narayan Madan Gopal Jiew applied for expunging the evidence of D.W.3, Paresh Chandra Das who deposed on behalf of the defendants No. 2(A), (B) & (C) on the strength of the power of attorney given in his favour by the said defendants.
(2.) The learned Advocate representing the petitioner in course of hearing drew my attention to the provisions of Order III Rule 2 of the Code of Civil Procedure and pointed out that the holder of power of attorney is empowered to act on behalf of the principal. He also submitted that the term 'acts' would not include deposing in place and instead of the principal if the power of attorney holder has rendered such acts in pursuance to power of attorney. He with all fairness admitted that such power of attorney holder 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. In this context, he relied on a decision of the Hon'ble Apex Court in the case of Janki Vashdeo Bhojwani & Anr. vs. Indusind Bank Ltd. & Ors., 2005 AIR(SC) 439 , wherein it has been categorically held as follows: " 13. Order III, Rules 1 and 2, CPC empowers the holder of power of attorney to 'act' on behalf of the principal. In our view the word 'acts' employed in Order III, Rules 1 and 2, CPC, confines only in respect of 'acts' done by the power of attorney holder in exercise of power granted by the instrument. The term 'acts' would not include deposing in place and instead of the principal. In other words, if the power of attorney holder has rendered some 'acts' in pursuance to 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 which only the principal can have a personal knowledge and in respect of which the principal is entitled to be cross-examined."
(3.) Hence, taking into consideration the principles, laid down by the Hon'ble Apex Court as quoted above and the facts and circumstances of the case, I am of the firm opinion that the witness who comes before the court must be a competent one and having direct knowledge about the acts done by him to enlighten the court in dealing with the disputes between the parties and simple appearance as a witness or giving a mere scope of crossexamination would not suffice in the facts and circumstances of this case.;