Kerala High Court: In a plea challenging the order of the Trial Court for dismissing the petitioner’s application for examining her husband for and on her behalf in a suit, Dr. Kauser Edappagath, J., while setting aside the Trial Court’s order held that as per Section 120 of the Evidence Act, 1872 (‘Evidence Act’) the husband is permitted to tender evidence in place and instead of his wife and vice versa, even in the absence of a written authority or power of attorney.
Background
The petitioner had filed a suit before the Trial Court for the declaration of the execution of two registered deeds as null and void, and for permanent prohibitory injunction, against the respondents.When the matter was posted for tendering evidence, the petitioner filed an application before the Trial Court to allow her husband to tender evidence for and on her behalf, however, the Trial Court dismissed the application holding it was not permissible to allow a person to tender evidence on behalf of another and further said that the petitioner’s husband could only be examined if he were to be cited as a witness for the plaintiff in the suit.
Therefore, the petitioner has filed the present petition challenging the order of the Trial Court dismissing the petitioner’s application.
Decision and Analysis
Upon hearing the submissions made by the petitioner, the Court referred to Section 135 of the Evidence Act that deals with the order of production and examination of witnesses and lays down that production and examination of witnesses shall be regulated by the law and practice for the time being relating to civil and criminal procedure respectively, and, in the absence of any such law, by the discretion of the Court.
The Court noted that the rules of recording evidence is regulated by the Order 18 of the Civil Procedure Code, 1908 (‘CPC’) and Order 3 Rules 1 and 2 of the CPC empowers the holder of the power of attorney to appear and act in any Court in respect of an act required or authorised by law to be made or done by a party in such Court. Thus, a power of attorney can give evidence on behalf of a party in civil proceedings, even though it is trite law that the power of attorney holder cannot depose about the facts which are within the personal knowledge of the principal, or which are not within his personal knowledge.
The Court then referred to Section 118 of the Evidence Act which says that all persons are competent witnesses, and Section 120 of the Evidence Act that lays down the law regarding the competency of one spouse to testify for a litigant spouse in civil and criminal proceedings. The Court said that it is evident that a non-litigating spouse is a competent witness for the other spouse who litigates.
The Court further said that ‘competency of witness’ referred to the capacity, ability or qualification of a person to tender evidence before a Court of Law and that as per Section 120 of the Evidence Act a husband is permitted to tender evidence for and on behalf of his wife and vice versa, even in the absence of a written authority or power of attorney, and such a witness was permitted to depose not only the facts within their knowledge but also within the knowledge of their spouse.
Therefore, based on these circumstances, the Court set aside the order of the Trial Court and held that the Trial Court had passed such an order without even considering Section 120 of the Evidence Act.
[Smitha v. Anil Kumar, 2024 SCC OnLine Ker 3196, decided on 18-06-2024]
Advocates who appeared in this case:
Advocates for the petitioner: Vinod Madhavan, M.V. Bose, Nisha Bose, Saniya C.V., Advocates
