Case Note & Summary
The petitioner, a 72-year-old woman, filed a suit for joint ownership of land. She claimed to be in indifferent health, hard of hearing, suffering from memory loss, and unable to sit or stand for long. She obtained a medical certificate from a doctor at Honnavar and filed an application seeking permission to lead evidence through her son as her general power of attorney holder. The trial court rejected the application on the ground of insufficient material. The High Court, exercising writ jurisdiction under Articles 226 and 227, held that the medical certificate was sufficient to establish the petitioner's incapacity. The court noted that the power of attorney holder, being the eldest son, was fully aware of the case circumstances and competent to tender evidence. The impugned order was quashed, and the application was allowed, directing the trial court to permit the power of attorney holder to lead evidence on behalf of the petitioner.
Headnote
A) Civil Procedure - Power of Attorney - Leading Evidence - Order 3 Rule 1 CPC, Section 118 Evidence Act - The court considered whether a 72-year-old plaintiff suffering from hearing loss, memory loss, and inability to sit or stand for long could be permitted to lead evidence through her son as general power of attorney holder - Held that the trial court erred in rejecting the application as the medical certificate sufficiently established the plaintiff's incapacity - The High Court quashed the impugned order and allowed the application, directing the trial court to permit the power of attorney holder to lead evidence (Paras 2-5).
Issue of Consideration
Whether a plaintiff who is old and suffering from health issues can be permitted to lead evidence through her general power of attorney holder?
Final Decision
The High Court allowed the writ petition, quashed the impugned order dated 09.01.2015 passed by the Senior Civil Judge, Kumta, in O.S.No.11/2012 on I.A.No.7, and allowed the application filed by the petitioner to lead evidence through her general power of attorney holder.
Law Points
- Power of attorney holder can be permitted to lead evidence on behalf of a party if the party is unable to appear due to old age
- illness
- or other valid reasons
- Order 3 Rule 1 CPC
- Section 118 Evidence Act
Case Details
2017 LawText (KAR) (03) 26
Writ Petition No.102567 of 2015 (GM-CPC)
Sri S. V. Yaji for petitioner, Shri Dinesh M. Kulkarni for respondent nos.1-5, Shri Hareesh S. Nayak for respondent nos.10 and 11
Smt. Nagi Yane Devaki.Kom Chaya Banavalikar
Harichandra Thaku Tandel and others
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Nature of Litigation
Civil suit for joint ownership of land
Remedy Sought
Permission to lead evidence through general power of attorney holder
Filing Reason
Plaintiff unable to appear in court due to old age and health issues
Previous Decisions
Trial court rejected application for permission to lead evidence through power of attorney holder
Issues
Whether the trial court erred in rejecting the application for permission to lead evidence through power of attorney holder?
Submissions/Arguments
Petitioner argued that she is 72 years old, hard of hearing, suffering from memory loss, and cannot sit or stand for long, and produced a medical certificate.
Respondents objected to the application.
Ratio Decidendi
A party who is unable to appear in person due to old age, illness, or other valid reasons can be permitted to lead evidence through a power of attorney holder, provided sufficient material is placed to establish the incapacity. The medical certificate in this case was sufficient to establish the plaintiff's incapacity.
Judgment Excerpts
The petitioner claims to be the joint owner in possession of the land and has filed a suit... She is said to be 72 years old and keeping indifferent health.
The Court below has rejected the application, as there was no sufficient material placed to support her contention.
The general power of attorney holder is the eldest son of the petitioner and is fully aware of the circumstances pertaining to the case and is competent to tender evidence.
Procedural History
The petitioner filed a suit in O.S. No.11 of 2012 before the Senior Civil Judge, Kumta. She filed an application (I.A.No.7) seeking permission to lead evidence through her general power of attorney holder. The trial court rejected the application on 09.01.2015. The petitioner then filed this writ petition under Articles 226 and 227 of the Constitution of India.
Acts & Sections
- Code of Civil Procedure, 1908 (CPC): Order 3 Rule 1
- Indian Evidence Act, 1872: Section 118
- Constitution of India: Articles 226, 227
