Notice of Motion No.83 of 2010

26th February, 2011

Petitioner Counsel: Mr. MIHIR ANANT BHATT,C A & Son
Respondent Counsel: Ms. SONAL, H. V. CHANDE
Other Counsel: Ms. SAMIRA GAIDHANI

Cases Cited:
Janki Vashdeo Bhojwani Vs. Indusind Bank Ltd., 2004(5) ALL MR 396 (S.C.)=AIR 2005 SC 439 [Para 1]
Nina Anil Shah Vs. Chitraleka Builders, Notice of Motion No.221/2008 in Appeal No.622/2007 in Notice of Motion No.1972/2005 in Suit No.3162/2005, Dt.21/2/2008 [Para 3]
Aswin Shambhuprasad Patel Vs. National Rayon Corporation Ltd., AIR 1955 Bom 262 [Para 3]

JUDGMENT

JUDGMENT :- On behalf of respondent No.11 learned counsel raises an objection to appearance on the part of the Power of Attorney of the petitioner at the time of hearing this Notice of Motion. The Power of Attorney is the son. The Power of Attorney draws our attention to the judgment of the Supreme Court in the case of Janki Vashdeo Bhojwani & Anr. Vs. Indusind Bank Ltd. & Ors., AIR 2005 SC 439 : [2004(5) ALL MR 396 (S.C.)]. The issue before the Supreme Court was whether the Power of Attorney can depose in place of the principal. In that context we may reproduce paragraphs :-

"17. On the question of Power of Attorney, the High Courts have divergent views. In the case of Shambhu Dutt Shastri Vs. State of Rajasthan, 1986(2) WLL 713 it was held that a general Power of Attorney holder can appear, plead and act on behalf of the party but he 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.

18. The aforesaid judgment was quoted with the approval in the case of Ram Prasad Vs. Hari Narain & Ors., AIR 1998 Raj 185. It was held that the word "acts" used in Rule 2 of Order 3 of the CPC 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 only as a witness in his personal capacity and whatever knowledge he has 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 Commissioner for recording his evidence may be issued under the relevant provision of the CPC.

19. In the case of Dr. Pradeep Mohanbay Vs. Minguel Carlos Dias reported in 2000 Vol. (1) Bom.L.R. 908, the Goa Bench of the Bombay High Court held that a power of attorney can file a complaint under Section 138 but cannot depose on behalf of the complainant. He can only appear as a witness.

20. However, in the case of Humberro Luis & Anr. Vs. Floriano Armando Luis & Anr., reported in 2002(2) Bom.C.R. 754 on which the reliance has been placed by the Tribunal in the present case, the High Court took a dissenting view and held that the provisions contained in Order 3, Rule 2 of C.P.C. cannot be constructed to disentitle the power of attorney holder to depose on behalf of his principal. The High Court further held that the word "act" appearing in Order 3, Rule 2 of CPC takes within its sweep "depose". We are unable to agree with this view taken by the Bombay High Court in Floriano Armando (supra)."

We may thereafter quote paragraph 21 where the Supreme Court has laid down the law, which read as follows :-

"21. We hold that the view taken by the Rajasthan High Court in the case of Shambhu Dutt Shastri (supra) followed and reiterated in the case of Ram Prasad (supra) is the correct view. The view taken in the case of Floriano Armando Luis (supra) cannot be said to have laid down a correct law and is accordingly overruled."

2. It is true that what was in issue before the Supreme Court was whether a Power of Attorney can depose on behalf of the petitioner. The issue whether a Power of Attorney can appear, plead and act was not on issue. The learned Supreme Court, however, has approved the law laid down by the Rajasthan High Court in Shambhu Dutt Shastri which was approved by the same High Court in Ram Prasad. In other words even though that was the ratio of the judgment what can be said is that in respect of the other aspect dealt with in the Rajasthan High Court judgment, that would amount to an obiter dicta.

3. Our attention is also invited to an unreported judgment in the case of Nina Anil Shah Vs. Chitraleka Builders & Ors., Notice of Motion No.221 of 2008 in Appeal No.622 of 2007 in Notice of Motion No.1972 of 2005 in Suit No.3162 of 2005 decided on 21st February, 2008 in which one of us (F. I. Rebello, J.) was party. After considering the judgment of Chief Justice Chagla in Aswin Shambhuprasad Patel & Ors. Vs. National Rayon Corporation Ltd., AIR 1955 Bom 262 we have affirmed the view that the Power of Attorney has no right to address this Court. However, at the same time we have held that there is a discretion in the Court in case of a close relative to permit the Power of Attorney to address this Court. This discretion can be exercised when the Court is assured that the relative appearing on behalf of the petitioner is conversant with the law, with the facts and is in a position to address and assist the Court. In other words he must inspire confidence in the Court of his ability to address the Court on the issues which arise in the matter.

4. Considering the above in our opinion on the facts of the present case the petitioner who appears in person has sought to be represented by Power of Attorney his son who has appeared before us. After considering the Power of Attorney and the research done by him and the judgments of this Court and after hearing him we are clearly of the opinion that he is in a position to assist this Court in disposing of this Motion. In the light of that on the facts of this case we permit the Power of Attorney to address this Court. The objection raised on behalf of the respondent No.11 to Power of Attorney being heard in the Motion is rejected.

Motion allowed.