Case Note & Summary
The petitioner, Care Hospitals (original defendant), challenged an order of the trial court that permitted the respondent, Dr. Nilesh Thakre (original plaintiff), to examine himself after his Power of Attorney holder had already been examined. The respondent had filed a suit for recovery of amounts for services rendered at the petitioner's hospital. Due to his pursuit of higher studies, he appointed his father as his General Power of Attorney holder to prosecute the suit. The defendant filed a written statement and counterclaim. After issues were framed, the Power of Attorney holder filed an affidavit in lieu of oral evidence and was cross-examined. Thereafter, the plaintiff filed an application (Exhibit 50) stating that he was now present in Nagpur and desired to examine himself. The defendant opposed, arguing that since the plaintiff had elected to adduce evidence through his attorney, he could not now improve his case by leading his own evidence. The trial court allowed the application. The High Court, in its oral judgment, held that there is no legal bar preventing a plaintiff from deposing after his Power of Attorney holder has been examined. The court noted that the Power of Attorney holder had deposed on behalf of the plaintiff, but the plaintiff himself could also depose. The defendant would have the opportunity to cross-examine the plaintiff, and no prejudice would be caused. The court emphasized that the trial court had exercised its discretion properly and that the impugned order did not warrant interference. The writ petition was dismissed.
Headnote
A) Civil Procedure - Power of Attorney - Examination of Principal after Attorney - Order 3 Rule 1, Order 18 Code of Civil Procedure, 1908 - The plaintiff filed a suit through his Power of Attorney holder who was examined and cross-examined. Subsequently, the plaintiff sought permission to examine himself as he was now available. The defendant opposed on the ground of election. The trial court allowed the application. The High Court upheld the order, holding that there is no legal bar preventing the plaintiff from deposing after his attorney, and the defendant is not prejudiced as cross-examination is available. (Paras 2-5)
Issue of Consideration
Whether a plaintiff who has already examined his Power of Attorney holder as a witness can be subsequently permitted to examine himself in the same suit.
Final Decision
The High Court dismissed the writ petition, upholding the trial court's order permitting the plaintiff to examine himself.
Law Points
- Power of Attorney holder can depose on behalf of principal
- principal can also depose subsequently
- no election bar
- Order 3 Rule 1 CPC
- Order 18 CPC
