[Order 3 Rule 2 CPC] Trial Court Can't Prejudge Evidence Of Special Power Of Attorney While Dealing With Plaintiff's Application To Lead Evidence: Karnataka HC

The Karnataka High Court has said the trial court cannot assess and prejudge the evidence that would be given by the Special Power of Attorney, while considering an application made under Order III Rule 2 of the Civil Procedure Code, seeking permission to lead oral and documentary evidence through a special power of attorney.

A single judge bench of Justice Suraj Govindaraj said “In terms of Order III Rule 2 of CPC, the option having been provided under the CPC for leading of such evidence, the assessment of evidence cannot be done at the stage of consideration of application under Order III Rule 2 of CPC. It is only after the evidence is led and the witness is cross-examined, would the court be in a position to assess whether the person, who has deposed has personal knowledge or not.”

The court observed this while allowing a plea filed by Shaheen who had approached the court questioning the order dated 30-11-2020, passed by the trial court rejecting her application seeking permission from the Court to lead oral and documentary evidence through her husband and a special power of attorney.

The trial court had held that special power of attorney holder cannot depose in a matter if he does not have personal knowledge.

The petitioner's counsel argued that in the event of the defendants being able to prove that the power of attorney holder has no personal knowledge, the same would have to be assessed at the time of consideration of the evidence and not at the time of consideration of an application under Order III Rule 2 of CPC.

However, the respondents contended that there would be no purpose served by examining a person who does not have personal knowledge and it would only be a waste of the time of the Court.

Upon hearing this, the bench said, “In the event, during the evidence, it being categorically established that the witness had no personal knowledge, then the evidence could always be rejected as hearsay at the time of passing of a judgment after consideration of the evidence.”

Following this it held that in the present case, the trial Court had prejudged the matter at the time of consideration of an application under Order III Rule 2 of CPC.

Accordingly, it allowed the plea stating that a special power of attorney is permitted to lead oral and documentary evidence and the opinion on the personal knowledge or otherwise of the said witness shall be considered by the trial court based on the cross-examination.

Appearance: Advocate Girish Yadwad for Petitioner.

Advocate V.S.Kalasurmath for Respondent

Citation No: 2024 LiveLaw (Kar) 88

Case Title: Shahen @ Hanifa AND Shivakumar Bolishetty & Others Case No: Writ Petition No 100190 OF 2021

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