Case Note & Summary
The petitioners, defendants in Special Civil Suit No. 17/2013 for defamation, challenged the trial court's order allowing the respondent-plaintiff to examine his power of attorney holder (his son) before the plaintiff himself. The plaintiff, aged 80 years, claimed to be suffering from various ailments and sought permission under Order XVIII Rule 3A of the Code of Civil Procedure, 1908. The defendants opposed, arguing that the plaintiff was not genuinely ill, pointing to old medical documents and his attendance at a wrestling competition. The trial court allowed the application, and the defendants filed a writ petition. The High Court, after hearing both sides, found no error in the trial court's exercise of discretion. It noted that the power of attorney holder was personally acquainted with the facts, and the defendants failed to demonstrate any prejudice or abuse of process. The petition was dismissed, and the trial court was directed to expedite the suit.
Headnote
A) Civil Procedure - Examination of Witnesses - Order XVIII Rule 3A CPC - Power of Attorney Holder - The trial court allowed the plaintiff's application to examine his power of attorney holder (son) before the plaintiff, citing plaintiff's age (80 years) and ailments. The defendants opposed, alleging the plaintiff was not genuinely ill and had attended a wrestling event. The High Court held that the trial court's order was discretionary and did not cause any prejudice or abuse of process, and thus dismissed the writ petition. (Paras 1-8)
Issue of Consideration
Whether the trial court erred in allowing the plaintiff to examine his power of attorney holder before stepping into the witness box under Order XVIII Rule 3A of the Code of Civil Procedure, 1908.
Final Decision
The High Court dismissed the writ petition, upholding the trial court's order. The trial court was directed to expedite the suit and dispose it of as expeditiously as possible.
Law Points
- Order XVIII Rule 3A CPC
- power of attorney holder examination
- discretion of trial court
- no prejudice
- no abuse of process
Case Details
2018 LawText (BOM) (10) 154
Writ Petition No.5124 of 2017
Shri Amit Bhate for Petitioner, Shri Ashwin Deshpande for Respondent
Sanj Dainik Lokopchar, Kishor Babubhai Ruparel, Chanakya Offset Printers
Gokulchand Govindlal Sananda
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Nature of Litigation
Writ petition challenging an interlocutory order in a civil suit for defamation.
Remedy Sought
Petitioners (defendants in the suit) sought to quash the trial court's order allowing the plaintiff to examine his power of attorney holder before the plaintiff.
Filing Reason
The trial court allowed the plaintiff's application under Order XVIII Rule 3A CPC to examine his power of attorney holder (son) before the plaintiff, which the defendants alleged was an abuse of process.
Previous Decisions
The trial court allowed the application Exh.97 on 24.04.2017, which is the subject of challenge in this writ petition.
Issues
Whether the trial court's order allowing examination of power of attorney holder before the plaintiff under Order XVIII Rule 3A CPC was erroneous.
Whether the defendants demonstrated any prejudice or abuse of process due to the order.
Submissions/Arguments
Petitioners argued that the plaintiff was not genuinely ill, as medical documents were old and he had attended a wrestling competition.
Respondent argued that the plaintiff was aged 80 years and suffering from ailments, and no prejudice would be caused to the defendants.
Ratio Decidendi
The trial court's discretion under Order XVIII Rule 3A CPC to allow examination of a power of attorney holder before the plaintiff is not to be interfered with unless it causes prejudice or amounts to an abuse of process. The defendants failed to establish either.
Judgment Excerpts
The application is predicated on the assertion that the power of attorney holder – who is the son of the plaintiff is personally acquainted with the facts.
The defendants pointed out that most of the documents placed on record by the plaintiff to substantiate the contention that he was not keeping well are more than a decade old.
The defendants further pointed out that adjournment was sought by the plaintiff on 20.12.2016 on the ground that he is busy in attending a family wedding function.
The defendants pointed out that the plaintiff inaugurated and attended the District Level Wrestling Selection Competition on 08.01.2017.
Procedural History
The respondent-plaintiff filed Special Civil Suit 17/2013 for defamation. During trial, the plaintiff moved application Exh.97 under Order XVIII Rule 3A CPC to examine his power of attorney holder before himself. The trial court allowed the application on 24.04.2017. The defendants filed the present writ petition challenging that order. The High Court heard the petition and dismissed it on 11.10.2018.
Acts & Sections
- Code of Civil Procedure, 1908: Order XVIII, Rule 3A
