The revision petitioner is the plaintiff in O.S.No.282 of 2004 on the file of the learned District Munsif Court, Udumalpet.
2.The above suit was filed by the plaintiff through his power agent who is none other than the son of the plaintiff. The suit was filed against the respondents herein for the relief of declaration and permanent injunction.
3.Further it reveals from the records that there was no objection raised by the defendant/respondent herein in respect of appointment of power of attorney agent to act on plaintiffs behalf. When trial was commenced, the power agent was in witness box, filed his proof affidavit to seeking to be examined as PW-1 on behalf his principal, whereas before cross examination the defendants took out an application in I.A.No.1755 of 2010 under Order 3, Rule 2(a) of C.P.C. to expunge the evidence of PW-1 on the ground that he is not empowered to depose in the place of principal and more so he cannot depose the personal knowledge of his principal.
4.The said petition was resisted by the revision petitioner, contending that the power of attorney being the son of the principal he have personal knowledge as to that of principal who being the father.
5.It is his further contention that it is always open to the defendants to dispute the same during the cross examination. Thereafter it is for the trial court to decide the issue after trial was over, accordingly he contended that PW-1 need not be expunged. However, the Learned Trial Judge allowed the application filed by the respondents herein by the impugned order dated 05.08.2011 and thereby expunged the evidence of PW-1. The said Order is under challenge by the revision petitioner in this Civil Revision Petition.
6.I have heard Mr.S.Arjun for Mr.S.Gunalan, learned counsel for the petitioner and Mr.P.Mathivanan, learned counsel for the respondents 2 to 4 and perused the entire materials available on record. No representation on behalf of the 1st respondent.
7.The record disclose that out of two questions posed before the Trial Court, one question was answered in favour of the revision petitioner that power agent of plaintiff is entitled to give evidence on behalf of his principal.
8.The next question was answered against the revision petitioner by the trial court that evidence of PW-1 should be eschewed on the ground that he has filed proof affidavit containing the personal knowledge of his principal which he is not supposed to aver in the proof affidavit.
9.It is not in dispute over the proposition of law that the power of attorney cannot depose over the facts of which he has no personal knowledge and the same can be deposed only by his principal.
10.At the same time it is to be decided whether the evidence of PW-1 could be expunged even before he was cross examined in respect of the documents he mentioned in the proof affidavit.
11.In this context it is useful to refer the judgment of our High Court reported in 2008 (3) L.W 840, holding as following that:
5. I am unable to accept the contention put forth by the learned counsel for the petitioner. As rightly pointed out by the trial Court, the suit itself has been filed by the Power of Attorney after obtaining leave from the Court. At that point of time, there was no objection raised by the petitioner/defendant. Moreover, the proof affidavit has been filed by the Power of Attorney on behalf of the plaintiff. Therefore, as found by the trial Court, in the proof affidavit, he has referred to certain registered documents executed by the parties prior to the date of execution of the Power of Attorney. Further, there is no legal bar for a power agent to give evidence on behalf of the principals and how far that evidence is valid is to be considered only at the time of disposing of the suit.
6. In the decision relied on by the learned counsel for the petitioner namely (2005) 3 M.L.J. 109 (S.C) (Janki Vashdeo Bhojwani v. Indusind Bank Limited), the Honourable Supreme Court has only stated that the power of attorney holder has rendered some "acts" in pursuance to power of attorney and 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. Therefore, in this case, the power of attorney being the plaintiff has only filed the proof affidavit and relied on certain registered documents which has been executed by the parties. Therefore, he is only going to depose in respect of the documents which are in existence and it is always open to the petitioner/defendant to cross examine the power agent with regard to the documents.
12.In yet another Judgment of our High Court reported in 2015 (1) CTC 480, wherein it is held as follows:
3. The short point that arises for consideration in this Revision is:
whether the testimony of a person, who figures as a witness can be rejected or struck off on the sole ground that he ventured to depose not only about the facts regarding which he got personal knowledge but also regarding the facts, which he came to know on information?
4.The answer to the said question shall be an emphatic 'No'. What credence can be attached to such part of the evidence pertains to the realm of appreciation of evidence. Though such a Witness would have chosen to speak about the facts, which are not within his direct knowledge, unless and until it is elicited from him that he is speaking about those facts not on personal knowledge but on information, to classify such part of the evidence to be hearsay, we cannot jump to the conclusion that any part of his testimony shall be inadmissible as hearsay evidence. The judicial propriety requires not to scuttle the same at the inception and leave it to the appreciation of the Court after noting the objections raised by the opposite party. In this case, admittedly the Petitioner has raised an objection in respect of certain portions of the testimony of D.W. 4 and the same has also been noted by the Trial Court. In view of the fact that such objections have been raised, it shall be open to the Petitioner to raise the point at the time of advancing arguments to disregard or not to give any credence to those parts of the evidence of D.W.4.
13.In the present case on hand, admittedly the power agent is none other than the son of the plaintiff and therefore he might have some personal knowledge of the subject matter of the issue involved in the suit.
14.Further, it is seen from the impugned order that in the proof affidavit filed by him on behalf of the plaintiff, he has averred certain documents, mainly a partition deed dated 26.05.1951 which was said to have entered into between his father and the family members of the 1st respondent herein.
15.According to the Learned Counsel appearing for respondents herein that the power agent could not have the personal knowledge of the facts which said to have been done above 50 years back, therefore the Learned Counsel contented that the power agent cannot be permitted to depose the facts of which the principal alone have personal knowledge as per the dictum laid down by the Honble Apex Court in the case of Janki Vashdeo Bhojweni and another Vs Industries Bank Limited and others, reported in 2005 (2) SCC, 217.
16.I have carefully considered the proposition of law laid down by this Court in respect of the issue involved in this civil revision petition. From the above judgements cited supra, this Court has categorically held that though in the proof affidavit, the power agent had referred certain registered document which are much prior to the execution of the power of attorney for which obviously he has no personal knowledge, but in as much evidentiary purpose, the same to be considered only at the time of disposing of the suit.
17.In the above said decisions it is also further held that pertaining to documents referred by the power agent he can be subjected for cross examination by the other side.
18.In the present case on hand, the power agent has filed the proof affidavit as PW-1 wherein he has referred to partition deed dated 26.05.1951 and oral partition entered into between the plaintiff and the family members of the 1st defendant.
19.The principle of law laid down in the above judgements of this Court squarely applicable to the facts of present case. The power agent of the revision petitioner can be subjected for cross examination by the defendants in respect of the partition deed and oral partition referred by him in the proof affidavit.
20.Apart from that, though issues related to the documents which are in the personal knowledge of the principal, the same could be gone into only at the time of disposal of the suit by the Trail Court, not at this stage.
21.In view of the discussion made above, I am inclined to allow this Civil Revision Petition as the order passed by the Trail Court suffers from material irregularity and so it is liable to set aside.
22.In the result:
(a) this Civil Revision Petition is allowed , by setting aside the Order passed in I.A.No.1755 of 2010 in O.S.No.282 of 2004 dated 05.08.2011 on the file of the learned District Munsif Court, Udumalpet;
(b) The Trial Court is directed to take up the suit on day to day basis, without giving any adjournment to either parties and to dispose of the same within a period of two months from the date of receipt of a copy of this order. Both the parties are directed to give their fullest co-operation for early disposal of the suit. No Costs. Consequently, connected miscellaneous petition is closed.
20.06.2017 Note:Issue order copy on 08.10.2018 vs Index : Yes Internet : Yes To The District Munsif Court, Udumalpet.
M.V.MURALIDARAN, J.
vs Pre-delivery order made in C.R.P.(PD) No.2438 of 2012 and M.P.No.1 of 2012 20.06.2017