LALLITHA TYAGI Vs. M CHANDRA KALA

JUDGEMENT

(1.) Revision petitioner filed the suit through her General Power of Attorney seeking cancellation of a sale deed and for other reliefs, initially against respondents 1 and 2. Subsequently third respondent was added as the third defendant. The General Power of Attorney of the revision petitioner was examined in part as a witness on her behalf. Meanwhile, respondents filed a petition under Rules 1 and 2 of Order III read with Section 151 CPC to eschew the evidence of the General Power of Attorney of the revision petitioner on the ground that he cannot depose on behalf of the revision petitioner, which was allowed by the order under revision. Hence, this revision.

(2.) The main contention of the learned Counsel for revision petitioner is that the only embargo placed on the General Power of Attorney giving evidence is in respect of the facts which are exclusively in the knowledge of the donor of the Power of Attorney but not with regard to the facts which are within his personal knowledge, and so a Power of Attorney also is a competent witness in view of Section 118 of the Evidence Act. It is his contention that since the question whether the evidence of a witness can be taken into consideration or not has to be decided at the time of disposal of the suit, Court cannot shut out the evidence of a person merely because he happens to be the General Power of Attorney of a party, because even a Power of Attorney can give evidence as a witness on behalf of a party. Relying on Janki Vashdeo Bhojwani v Indusind Bank Ltd., 2005 (3) ALD 43 (SC) = AIR 2005 SC 439 he contended that if a General Power of Attorney holder has rendered some acts' in pursuance of Power of Attorney he may depose, for the principal, in respect of such acts. Relying on Gangawa v. Arjunsa, AIR 2001 Kar. 231, he contended that inasmuch as the CPC does not debar the Power of Attorney being examined as a witness on behalf of the parties to the proceedings, and since a party can even without examining himself as a witness establish his case by examining witnesses who are competent to testify, and would only run the risk of the Court drawing an adverse inference for non examination of the party depending on the facts and circumstance of the case. Power of Attorney also is a competent witness. He also relied on Naseem Moorulaiah v. Abdul Salem, 2002 (3) ALD 326 = 2002 (1) DT (AP) 438, where it is held that the Court can draw an adverse inference if a competent witness is not examined by any of the parties in the suit without valid or justifiable ground, and that there is no need for any party to file a petition and seek permission of the Court to examine a particular witness in a case; and on Kailashi Devi v Matadeen Agrawal, AIR 2001 Raj. 306, where it is held that Power of Attorney is a competent witness and is entitled to appear as such and his statements in the Court cannot be ignored and his evidence has to be evaluated as per his deposition before the Court and if the Court finds the evidence of such Power of Attorney does not inspire confidence, it may not rely of his evidence and that the Court has no jurisdiction to say that the evidence of such person shall not be read at all, and that the party alone should appear as a witness in support of his case, and contended that the order under revision eschewing the evidence of PW. 1 is unsustainable.

(3.) The contention of the learned Counsel for respondents is that respondents had to file the petition before the trial Court because the General Power of Attorney of the revision petitioner who has no locus standi to conduct the proceedings on behalf of the revision petitioner without appointing an advocate was conducting the proceedings on behalf of the revision petitioner and as the Power of Attorney of revision petitioner cannot give evidence as a substitute for the revision petitioner- respondent has to file the petition. Relying on Hari Om Rajender Kumar v. Chief Rationing Officer of Civil Supplies A.P., AIR 1990 AP 340, he contended that the Power of Attorney of the revision petitioner, who is not an advocate, cannot plead or argue on the strength of the Power of Attorney in view of Section 32 of the Advocates Act, and on K. Bharathi v. Labour Officer, 1999 (3) ALT 428, where it is held that the Power of Attorney holder of a party cannot appear as a witness in the capacity of that party on behalf of the donor party and that the party to a suit cannot stay back without entering into witness box and subjecting himself to cross-examination. He also relied on Ram Prasad v. Hari Narain, AIR 1998 Raj. 185, where it is held that Power of Attorney is not entitled to appear as a witness for a party appointing him as Power of Attorney holder and can appear only as a witness in his personal capacity and whatever knowledge he has about the case, he can state those facts on oath. He also relied on the observations in Pars 12 of Janki Vashdeo Bhojwani 's case (supra), reading Order III Rules 1 and 2 CPC, empowers the holder of Power of Attorney to "act" on behalf of the principal. In our view the word "acts" employed in Order III Rules 1 and 2 CPC, confine only in respect of "acts" done by the Power of Attorney holder in exercise of power granted by the instrument. The term "acts" would not include deposing in place and instead of the principal. In other words, if the Power of Attorney holder has rendered some "acts" in pursuance to Power of Attorney, he may depose for the principal in respect of such acts, but he cannot depose for the principal for the acts done by the principal and not by him. Similarly, he cannot depose for the principal in respect of the matter which only the principal can have a personal knowledge and in respect of which the principal is entitled to be cross-examined. and on S. Padmavathamma v. S. Sudha Rani, 2004 (3) ALD 547, where it is held that a General Power of Attorney holder of a party in a suit can give evidence deposing to the facts which are only within his personal knowledge but cannot speak about the facts within the exclusive knowledge of his principal and contended that the well reasoned order of the trial Court needs no interference.