DURGA CHAUDHARY vs RAJNI PROPERTIES (P) LTD.

IN the present case, during the course of the proceedings the respondent moved an application under Order III Rule 2 read with Section 151 of Civil Procedure Code, 1908. It is contended therein that oral evidence of Mr. Anil Chaudhary, power of attorney holder of the complainant is not permissible on the basis of his affidavit of evidence filed without permission of the Commission. Being an agent, his right does not include the right to appear as a witness though he can appear, plead and act on behalf of the party. He can also give oral evidence in his own capacity. IN support, reliance was placed on various decisions, namely- (1997) UC WLN 98 (Raj.); (1982) 2 WLN 713 (Raj.); AIR 1993 All. 143; AIR 1998 Raj. 143; 1998 (3) Civ. LJ 332; 1998 (3) Cur. CC 183; 1998 (3) CCC 539; 1997 (3) Raj. LW 2003, and 1997 (1) Raj. LR 73. However, copies of only two decisions have been made available.

IN reply thereto, the complainant has stated that the provisions of Order III Rule 2 are not applicable to the present case. The right to appear and do acts includes per se the right to give evidence. After having cross-examined Mr. Anil Kumar Chaudhary by the learned Advocate for the respondent, such objections raised are only to delay the proceedings. Mr. Anil Kumar Chaudhary is a holder of special power of attorney and as such application filed by the respondent is misconceived. Close reading of the provisions of the Monopolies and Restrictive Trade Practices Act, 1969 (for brief the MRTP Act) with Monopolies and Restrictive Trade Practices Commission Regulations, 1991 (for brief the MRTPC Regulations) would reveal that specific provisions of Code of Civil Procedure, 1908 have been made applicable in case of enquiry under Section 12 of the Act as well under Regulation 64 of the MRTPC Regulations. Relevant provision of Section 12 of the Act while defining the powers of the Commission read as under : "12. Powers of Commission-(1) The Commission shall, for the purposes of any inquiry under this Act have the same powers as are vested in a Civil Court under the Code of Civil Procedure, 1908 (5 of 1908), while trying a suit, in respect of the following matters, namely,- (a) the summoning and enforcing the attendance of any witness and examining him on oath; (b) the discovery and production of any document or other material object producible as evidence; (c) the reception of evidence on affidavits; (d) the requisitioning of any public record from any Court or office; (e) the issuing of any Commission for the examination of witness; (f) the appearance of parties and consequence of non-appearance. (2) Any proceeding before the Commission shall be deemed to be a judicial proceeding within the meaning of Sections 193 and 228 of the Indian Penal Code (45 of 1860), and the Commission shall be deemed to be a Civil Court for the purposes of Section 195, [and Chapter XXVI of the Code of Criminal Procedure, 1973 (2 of 1974)]."

Similarly Clause 4 of Regulation 64 relating to the joinder of the parties clearly state that the provisions of Order 1 of Code of Civil Procedure, 1908 (5 of 1908) shall apply mutatis mutandis to these proceedings. In regard to other proceedings it is left to the discretion of the Commission to apply them if it is deemed to be so expedient as provided in Regulation 13(2) of the MRTPC Regulations, 1991 which reads as under : "Subject to the provision of Sub-section (1) of Section 12, where no specific provision has been made in these regulations, the Code of Civil Procedure, 1908 (5 of 1908) to the extent, as may be deemed expedient by the Commission, shall apply to the proceedings". There is however no specific Section/Regulation pertaining to the oral evidence of the agents while Order III Rule 1 relates to appearance by persons, recognised agents or by pleaders, Rule II specifies the acts to be performed by the recognised agents. This rule has been interpreted by the Hon''ble High Court of Rajasthan. In case of Ram Prasad v. Hari Narain & Ors., reported in 1998 (3) CCC 183 (Raj.). It has been clearly held therein that the "word ''acts'' used in Rule 2 of Order III of Code of Civil Procedure does not include the Act of power of attorney holder to appear as a witness on behalf of a party. Power of attorney holder of a party can appear only as a witness in his personal capacity and whatever he has knowledge about the case, he can state on oath but he cannot appear as a witness on behalf of the party in the capacity of that party. If the plaintiff is unable to appear in the Court a Commission for recording his evidence may be issued under the relevant provisions of the Code of Civil Procedure and if the plaintiff is suffering from disease of deafness, in the event also he may be examined with the help of the provisions contained in Section 119 of the Indian Evidence Act, 1872, which are applicable for the purposes of recording the evidence of a dumb witness".

THE other judgment cited in the case of Mahinder Pratap Singh v. Padam Kumari Devi, AIR 1993 Allahabad 143, is to the same effect. No contrary judgment has been filed by the applicant/complainant. THErefore, I agree with the arguments of the learned Counsel of the respondent that the attorney holder of the party whether general or special cannot give an evidence in capacity of power of attorney holder. However, he can do so in his personal capacity. In this context, I find that the affidavit of evidence filed by Mr. Anil Kumar Choudhary clearly states that he has personal knowledge of the facts and the circumstances of the case though he is also an attorney of the applicant. In that view of the matter the affidavit of evidence filed need no prior permission of the Commission and the witness could be cross-examined on the contents stated in his personal knowledge. It is also pertinent to note that after having cross-examined the witness, without raising any objection to the affidavit filed, the deposition given in his personal capacity cannot be declared as bad in the eyes of law. So is his request for allowing to cross-examine him again on the plea of finding whether the contents of the affidavit have been given out of his personal knowledge or otherwise. Accordingly, I hold that the power of attorney cannot depose in its aforesaid capacity but he can do so in his personal capacity, which is so in the present case. Accordingly the application of the respondent is disposed of in terms of the above. Application disposed of.