The petitioner is third defendant in O.S.No.3046 of 2000 on the file of XIII Assistant Judge, City Civil Court, Chennai. The respondent filed a suit for partition and division of 1/5th share in the suit property through his power agent by name Mr.K.J. Nithyanandam. Excepting this petitioner, other three defendants remained exparte. This petitioner filed an application before the trial Court under Section 151 of C.P.C. to reject the proof affidavit filed by the Power of Attorney Agent by alleging that as per the procedure, the Power Agent cannot depose on behalf of the plaintiff as to his personal knowledge and that he can only depose with regard to the facts known to him personally.
2. The application was resisted by the respondent by filing a counter stating that both the plaintiff and the Power Agent are co-brothers and that the petitioner has not dealt with the shares available to the respondent and the petition is not maintainable.
3. Learned Trial Judge dismissed the application by observing that the witness of the respondent side viz., P.W.1 is only deposing in his personal capacity and not on behalf and in the place of the plaintiff and there is absolutely no merit in the contention of the petitioner.
4. Mr.M. Sridhar, learned counsel for the petitioner would submit that inasmuch as the law does not permit the power of attorney holder to depose anything which is within the knowledge of the party, he cannot be permitted to depose.
5. Conversely, Mr. Pothiraj, learned counsel for the respondent would submit that it has been the consistent view of this Court that the power agent can appear as witness in his personal capacity and he cannot be permitted to give evidence where the evidence is based on personal knowledge of the principal.
6. The Court below has relied upon the decision of the Apex Court reported in AIR 2005 Supreme Court 435 [Janaki Vashdeo Bhojwani v. Inudsind Bank Ltd.] wherein Their Lordships have held thus:
"Order 3 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 3 Rules 1 and 2 CPC confines only to 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 of 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 of which only the principal can have a personal knowledge and in respect of which the principal is entitled to be cross-examined."
7. In AIR 1998 Rajasthan 185 [Ram Prasad v. Hari Narain and others] it has been held that the power of attorney holder of a party can only appear as witness in his personal capacity and whatever he has knowledge about the case, he can say but he cannot appear as a witness on behalf of the party in the capacity of that party. Identical view has been taken by a Division Bench of Andhra Pradesh High Court in a decision reported in AIR 2003 Andhra Pradesh 329 [Secretary to Govt. of India v. Indira Devi and Others] wherein it is held that while the plaintiff is relying entirely on documentary evidence, which are public documents and no personal knowledge required to be pressed into service to establish the case of plaintiff and the evidence of the power of attorney holder can be relied on.
8. Learned counsel for the respondent draws attention of this Court to a recent decision of this Court in 2008 (3) L.W. 840 [John Kennady @ Murugan v. Bhagavathi Rep. By her Power of Attorney P. Cholarajan] wherein the learned Judge has followed the decision of Janaki Vashdeo Bhojwani's case (supra) and also other decision of this Court and observed that the power of attorney holder can appear as witness in his personal capacity.
9. In view of the decision arrived by this Court on earlier occasion and also following the decision of the Apex Court, it is held that the power of attorney holder can be permitted to appear as witness to depose about the facts which are within his knowledge in personal capacity and his evidence as to the factors which are expected to be within the personal knowledge of the plaintiff namely, the principal, cannot be looked into.
10. Such being the position, this Court does not find any illegality or infirmity in the order passed by the Court below which deserves to be confirmed and accordingly confirmed. The Civil Revision Petition is devoid of merits. Accordingly the Civil Revision Petition is dismissed. No costs. Consequently, connected M.P. is also dismissed. The trial Court is directed to dispose of O.S.3046 of 2000 preferably within three months from the date of receipt of this Order.