S.120 Evidence Act | Wife Competent To Depose On Behalf Of Plaintiff Even In Absence Of Power Of Attorney: Karnataka High Court

The Karnataka High Court has said the wife of a plaintiff, even in the absence of power of attorney issued to her, is competent enough to depose on behalf of the original plaintiff in a civil suit.

A single judge bench of Justice V Srishananda, sitting at Dharwad, recently dismissed an appeal filed by Shashikala and others challenging an order passed by the First appellate court which reversed the trial court order dismissing the suit filed by Laxman Yadu Kadam, seeking a declaration of right over the disputed property and for restraining the defendants from disturbing the actual possession and lawful wahivat of the plaintiffs.

The trial court had dismissed the suit on the ground that the plaintiff did not step into the witness box and in his place his wife examined based on the power of attorney executed by her husband.

The appellants placed reliance on the Supreme Court judgment in the case of Janki Vashdeo Bhojwani and Another Vs. Indusind Bank Ltd. And others (2005), wherein it was held that Order III Rules 1 and 2 CPC empower 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,” the Supreme Court had held.

However the High Court referred to Section 120 of the Indian Evidence Act and held, “Even in the absence of power of attorney or its validity PW-1 being the wife of the plaintiff, was competent enough to depose on behalf of the original plaintiff.”

It observed that a spouse is a competent witness even in the absence of any written authority or power of attorney. "Even assuming that the power of attorney executed in favor of the wife of the original plaintiff is held to be incorrect and PW-1 is held to be incompetent to speak on behalf of the principal namely her husband, by virtue of the operation of law as is found in Section 120 of the Indian Evidence Act , is competent enough to depose for and on behalf of the plaintiff,” Court said and held that the first Appellate Court validly decreed the plaintiff's suit.

In regards to the Apex court judgment cited by the appellants, the bench said, “In view of the facts and circumstances of the present case, wherein PW-1 being the wife of original plaintiff, principles of law enunciated in Janki Vashdeo Bhojwani (supra) is not applicable to the case on hand as PW-1 is otherwise competent to depose on behalf of original plaintiff who is her husband in view of Section 120 of the Evidence Act.”

Accordingly, it dismissed the appeal.

Case Title: Shashikala & Others And Laxman Yadu Kadam and Others

Case No: REGULAR SECOND APPEAL NO. 1832 OF 2005

Citation: 2023 LiveLaw (Kar) 306

Date of Order: 16-06-2023

Appearance: Advocate Shrikant T Patil for Appellants.

Advocate B S Kamate FOR R-2(A, B), R3 TO R6.

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