Source: Karnataka High Court

Why in News?

Recently, the Karnataka High Court in the matter of Shahen @ Hanifa v. Shivakumar Bolishetty & Ors., has held that while considering an application made under Rule 2 of Order III of the Civil Procedure Code, 1908 (CPC), the trial court cannot assess and prejudge the evidence that would be given by the Special Power of Attorney.

What was the Background of Shahen @ Hanifa v. Shivakumar Bolishetty & Ors. Case?

• In this case, the petitioner had filed a suit seeking specific performance against the defendants.
• In the said suit, an application under Rule 2 of Order III read with Section 151 of the CPC was filed seeking permission of the Court to lead oral and documentary evidence through her husband and a special power of attorney.
• The said application was rejected by the Trial Court.
• Thereafter, a petition was filed before the Karnataka High Court which was later allowed.

What were the Court’s Observations?

• Justice Suraj Govindaraj said observed that in terms of Rule 2 of Order III 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 been deposed has personal knowledge or not.
• It was further stated that a special power of attorney is permitted to lead oral and documentary evidence and the opinion on personal knowledge or otherwise of the said witness shall be considered by the Court based on the cross-examination.

What are the Relevant Legal Provisions Involved in it?

Rule 2 of Order III of CPC

• Order III of CPC deals recognized agents and pleaders.
• Rule 2 of Order III of CPC deals with recognized agents.
• It states that the recognized agents of parties by whom such appearances, applications and acts may be made or done are—

(a) persons holding powers-of-attorney, authorizing them to make and do such appearances, applications and acts on behalf of such parties;

(b) persons carrying on trade or business for and in the names of parties not resident within the local limits of the jurisdiction of the Court within which limits the appearance, application or act is made or done, in matters connected with such trade or business only, where no other agent is expressly authorized to make and do such appearances, applications and acts.

Section 151 of CPC

About:

• This section deals with the saving of inherent powers of Court.
• It states that nothing in this Code shall be deemed to limit or otherwise affect the inherent power of the Court to make such orders as may be necessary for the ends of justice or to prevent abuse of the process of the Court.
• This section does not confer any substantive rights on parties but is meant to get over the difficulties arising from rules of procedure.

Case Law:

• In Ram Chand v. Kanhayalal (1966), the Supreme Court held that the inherent powers under Section 151 of CPC can also be exercised to prevent the abuse of the process of court.