M SAROJA Vs. T SUNDARI

JUDGEMENT

(1.) THIS revision is filed against the order passed by the lower Court in I.A. No: 3910 of 2008 in O.S. No: 1558 of 2006.

(2.) THE revision petitioners are the plaintiffs / respondents and the respondents are the defendants / petitioners before the lower Court. THE case of the parties before the lower Court are as follows :"(i) THE 4th petitioner is the 4th defendant in the above suit. THE Power of Attorney Agent of the plaintiffs by name Mrs. Senthamarai in pursuance of the said Power of Attorney executed by the plaintiffs in her favour entered the witness box as P.W.1 and was also cross examined by his counsel. Later another witness by name Mr. Sugirthan was also examined on behalf of the respondents / plaintiffs as P.W. 2. Later, the respondents / plaintiffs introduced the 1st plaintiff by name Mrs.M.Saroja as P.W.3 on their behalf and she has filed her proof affidavit. He states that when the plaintiffs had already appointed one Mrs. Senthamarai as their Power of Attorney Agent and examined her P.W.1 to depose their case, the principles of the said Power of Attorney Agent Mrs.Senthamarai, cannot examine themselves as further witnesses for the respondents / plaintiffs. It would tantamount to trying to fill up lacuna. In these circumstances, the proof affidavit filed by P.W.3 (principal of Power of Attorney Agent Mrs. Senthamarai) cannot be accepted and the same is liable to be rejected. Hence this petition.(ii) In the counter affidavit filed by the respondents it is stated that the respondent is the Power Agent in the above application. THE schedule property belongs to Mrs. Saroja, G. Ramani and R. Minnal Kodi, the said Saroja got into the witness box to examine herself as principal. THEre is no law prohibiting the principal to be examined as she is the primary witness in the case. Further she submits that the Court has to decide the issue at the time of passing judgment and this application is not maintainable under law. THE power agent has not paid any consideration to the principal and the principal is only cited as witness, to prove that the Power of Attorney has not been revoked by her. THEre is no merit in the application to reject the evidence of the principal, it is only to harass the principal and hence this application to reject has been filed by the petitioner which is unsustainable in law and there is no cause of action in the application. THErefore, she requests to dismiss the petition with costs. ".

(3.) THE learned counsel for the revision petitioner would submit in his argument that the 1st plaintiff had given power of attorney along with other two plaintiffs to one Senthamarai and the power agent has conducted the suit on their behalf and the said power agent was examined on the side of the plaintiff as P.W.1 and yet another witness was examined as P.W.2 and the 1st plaintiff was examined as P.W.3 by filing proof affidavit in order to explain the execution of the Power of Attorney and the lower Court had permitted to examine the 1st plaintiff as P.W.3 by filing proof affidavit and thereafter it had rejected the evidence of P.W.3 in an erroneous view that the power agent of P.W.3 was already examined on behalf of the 1st plaintiff as P.W.1. He would further submit that the reason assigned by the lower Court in eschewing the evidence of P.W.3 is not correct. He would also submit that the plaintiff is always entitled to be examined as one of the witnesses and the procedure followed by the lower Court in rejecting the evidence of P.W.3 in the midst of examination of witnesses on the side of the plaintiff is erroneous and the not in accordance with law. THE only course available to the lower Court is to discuss the evidence adduced on the side of the plaintiff only at the time of passing the judgment and, therefore, the order of the lower Court has to be interfered and set aside.