Qualifications of attorney deposing in place of the party to the civil suit
Order III of CPC provides that any application, appearance and act in or to any court by a party to the suit, if authorized and required by law, can be done by the party in person or through his pleader or any recognized agent. The party to the proceedings can give power of attorney to his/her agent authorizing the agent to make and do such appearances, applications and acts on his/her behalf.
The Supreme Court of Pakistan in its recent judgment (PLD 2020 SC 401) annunciated the principles as to attorney deposing in place of party to the suit. In answer to the question: whether a witness, not fully conversant with the facts and circumstances of the case would be a competent witness within the meaning of Order III rules 1 & 2 CPC; the Courts held that primarily it’s the party itself which should depose about the first hand and direct evidence of the transaction or the dispute. The attorney having not such information cannot be considered as a competent witness in view of the above said issue. The Court further held that there are only two conditions in which an agent can competently depose in place of the party: either the agent possesses first hand and direct information of the material facts of the case or he acts as an agent of the party from very inception till the accrual of cause of action. Under the law, deposition of such agent as a witness is as good as that of the principal (the party) itself; and non-appearance of the party as a witness is not fatal in these circumstances.
Where the witness cannot appear before the court due to sickness, infirmity or any other compelling reason; the court may issue commission for the recording of such witness. In case such witness is residing outside the jurisdiction of the trial court; the commission may be issued to a court to record his evidence in local limits of whose jurisdiction he resides. Witness being infirm or due to any other compelling reason cannot appear in the court. The commission can be issued with consent of the parties to the suit. If any party raises objection regarding issuance of commission then the objection should be properly noted and considered by the court. On return of the commission with deposition the witness, the court can order it to be made part of the record of the case.