The respondents are defendants in O.S.No.251 of 2008. At the outset they were represented by one C. Ramesh, who was conducting their case on their behalf, as their Power of Attorney. They filed application in I.A.No.1440 of 2008 stating that the Power of Attorney Mr.C. Ramesh suddenly left them, which necessitated to cancel the Power of Attorney given to him on 19.09.2008 and on the same day they executed Power of Attorney deed in favour of one Mr. D. Nagarajan and hence he may be recognised as Power of Attorney for the defendants and be permitted to give evidence and prosecute the above case on the behalf of defendants by substituting his name in the place of Mr.C. Ramesh.
2. The said petition was resisted by filing the counter by the respondent/plaintiff by stating that on various hearings the defendants did not come forward to adduce evidence, even though they were afforded with ample opportunity; that the perusal of the notes paper would go to show that they have obtained various adjournments to let in evidence; that only to drag on the proceedings they filed the application and the Power of Attorney cannot be substituted in the place of Mr.C. Ramesh and he can speak only to the acts subsequent to his appointment as Power of Attorney and hence the petitioner has to be dismissed.
3. Learned District Munsif, Madhuranthakam, has allowed the application by recording observation that even though it could be understood that the present petition has been filed to protract the proceedings, still in order to provide an opportunity to the defendants also to expedite the trial of the suit, the petition has to be allowed, by which the plaintiff would not be put to prejudice.
4. Learned counsel for the petitioner would contend that the prayer in the Interlocutory Application contains a request for examination of Power of Attorney in place of the defendants, which is not recognised by law and the petition has to be dismissed.
5. The learned counsel for the petitioner placed much reliance on a decision of Supreme Court reported in 2005 (3) L.W. 403 [Janki Vashdev Bahojwani & Another v. Indusind Bank Limited and others] wherein Their Lordships while dealing Order 3 Rules 1 and 2 of C.P.C explained the scope of the phrase "to act" and held that the word "act" would not include adducing oral evidence on behalf of his principal for the acts done by the principal and not by him and that he cannot depose for the principal in respect of the matter which only the principal can have a personal knowledge. The relevant portion of the judgment is as follows:
"13. 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, confines 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 the matter which only the principal can have a personal knowledge and in respect of which the principal is entitled to be cross-examined."
6. Following the ratio laid down in the above said decision, it is held that though the Power of Attorney may be permitted to conduct the case on behalf of his principal, while the stage of the case reaches recording of evidence, he is precluded from deposing on behalf of his principal as to matters which would be within his personal knowledge.
7. In such view of this matter, it is observed that a new Power of Attorney Mr.D. Nagarajan can conduct the case on behalf of the respondents/defendants except giving oral evidence on their behalf.
8. With the above said observation, the Civil Revision Petition is disposed of. No costs. Connected M.P. is closed.
ggs To The District Munsif, Maduranthakam