This Civil Revision Petition is filed against the order and decree dated 10.4.2008 made in IA.No.96/2008 in OS.No.590/2004 passed by the District Munsif, Thanjavur, rejecting the request made by the petitioner to allow the Power of Attorney Agent to proceed with the suit on behalf of the plaintiff as his Power of Attorney.
2. The brief facts, which are essential for the disposal of this Civil Revision Petition, are as follows:-
The plaintiff had filed the above suit against the respondents for specific performance of the agreement of sale dated 26.1.2003 and for permanent injunction restraining the defendants from interfering with the peaceful possession and enjoyment of the suit property or in the alternative for recovery of a sum of Rs.5,000/- along with interest from the 1st defendant.
3. According to the plaintiff, the suit property originally belonged to one Govindarajulu Naidu, the grand father of the plaintiff having acquired the same from his father under the Will dated 1.7.1950, who in turn had executed a Will dated 21.3.1984 bequeathing the property in favour of his two sons the respondents herein. After the death of their father, the respondents had become the absolute owners and in a partition effected between the brothers, the father of the 1st respondent became the owner of the northern portion and the other portion was allotted to the 2nd respondent. The 1st respondent had executed an agreement of sale dated 26.1.2003 in favour of the plaintiff and agreed to sell his northern portion of the property and as the 1st respondent failed to execute the sale deed after receiving the sale consideration, the plaintiff had filed the above said suit for the aforesaid reliefs.
4. The Power of Attorney holder is the mother of the plaintiff and is also one of the attestors to the sale agreement dated 26.1.2003. Since the plaintiff is a B.E. Student and would always be away from the Thanjavur Town, he has executed a power deed appointing his mother as his Power of Attorney Agent to conduct the case on behalf of the plaintiff. At the time of trial during evidence, the plaintiff has filed an application in IA.NO.96/2008 under Order 3 Rules 1 and 2 read with Sections 94 and 151 of CPC to allow the Power of Attorney Agent to depose on behalf of the plaintiff, which was resisted by the respondents. After consideration of the contentions put forth on either side, the court below dismissed the petition, as against which, this Civil Revision Petition has been filed by the plaintiff.
5. Mr.D.Rajagopal, the learned counsel for the petitioner assailed the impugned order on the ground that though the Power of Attorney cannot give evidence as to the personal knowledge of the plaintiff, but she can represent the plaintiff for all purposes. He would contend that the rejection of the petition by the court below on the ground that the Power of Attorney Agent cannot give evidence in dual capacity as the plaintiff and as an attestor is not sustainable in law.
6. The learned counsel for the petitioner would rely on the decision of this court rendered in the case of M/s.RDS Project Limited Vs. Mariyu Abdul Azeez [AIR-2009-Madras-101], wherein it is observed by this court that when examination of the plaintiff in person was not required, the holder of Power of Attorney could be treated as a witness examined on the side of the plaintiff.
7. Per contra, Ms.Padmaavathi Devi, the learned counsel for the respondents would contend that the Power of Attorney holder can appear only as a witness in his personal capacity and whatever the knowledge she has about the case, she can state orally and she cannot appear as a witness on behalf the party in the capacity of that party. She would place reliance on the decision of this court rendered in the case of Sakunthala Vs. Anandarajan and another [2008-1-MLJ-354], wherein this court referring to another decision of this court rendered in the case of Janki Vashdeo Bhojwani and another Vs. Indusland Bank Ltd and others [2005-3-MLJ-109] has held thus:-
"The Supreme Court has considered the judgement of the Rajasthan High Court in Shambhu Dutt Shastri Vs. State of Rajasthan [Air-1998-Raj-185], wherein it was held that the word "act" under Order 3 Rule 2 of CPC does not include the act of power of attorney holder to appear as witness on behalf of the party. It was further held that the Power of Attorney holder can appear only as a witness in his personal capacity and whatever knowledge he has about the case, he can state orally and he cannot appear as witness on behalf of the party in the capacity of that party. It was further observed that even if the plaintiff is not able to appear before the Court, the plaintiff is not left in the lurch. There is a provision for appointment of commissioner for recording evidence under CPC."
8. The word "act" occurring under Rule 2 of Order 3 of CPC does not include the act of Power of Attorney holder to appear as a witness on behalf of the petitioner. The Power of Attorney holder of a party can appear only as a witness in his personal capacity to speak about the facts, which are within his or her personal knowledge about the case, but she cannot appear as a witness on behalf of a party in the capacity of that party.
9. In this case, the Power of Attorney holder has signed the agreement of sale as an attestor and if she is examined instead of the principal, then definitely it would amount to permitting her to depose regarding the facts, which are not within her personal knowledge that too both as an attestor and the plaintiff of the case. There is every force in the contention of the learned counsel for the respondents that the Power of Attorney holder is not competent to adduce evidence with regard to the execution of the sale agreement dated 26.1.2003 on behalf of the plaintiff, as it is an event, which had taken place before the execution of the Power of Attorney in favour of the petitioner by the plaintiff. Therefore, the Power of Attorney holder cannot act as a witness on the side of the plaintiff and depose in dual capacity, which not only would handicap the respondents in cross examining her during adduction of evidence, but it will also be adverse to the interest of the parties.
10. At this juncture, it is relevant to refer to the observations made by the Honourable Supreme Court in the decision rendered in the case of Vidhyadhar Vs. Manikrao and another [1999-3-SCC-573] that "where a party to the suit does not appear in the witness box and state his own case on oath and does not offer himself to be cross examined by the other side, a presumption would arise that the case set up by him is not correct."
11. In view of the said categorical legal position of law and also the factual situation in this case, the Power of Attorney holder can appear, plead and act on behalf of the plaintiff, but she cannot become a witness on behalf of the plaintiff. The court below has rightly dismissed the petition. I do not find any irregularity or illegality in the impugned order passed by the court below.
12. In the result, Civil Revision Petition fails and deserved to be dismissed and accordingly, it is dismissed. No costs. Consequently, the connected MP is closed.
Srcm To:
The District Munsif, Thanjavur