A. Saraswathy vs Sundaresan and Pollachi Municipality

M. Venugopal, J.—The Revision Petitioner is the second respondent/second defendant in I.A. No. 1032 of 2008 in O.S. No. 321 of 2005

on the file of the learned District Munsif, Pollachi. The first respondent/plaintiff has filed O.S. No. 321 of 2005. The Revision Petitioner aggrieved

against the Order in I.A. No. 1032 of 2008 passed by the learned District Munsif, Pollachi, allowing the application under Order 3 Rule 1, 2 of

C.P.C.

The first Respondent/Temple''s Power Agent has stated before the Trial Court that the Temple''s Managing Trustee has suffered illness and

therefore he was not in a position to conduct the case and that he has given the power deed dated 07.04.2008 enabling the power agent to

conduct the case on his behalf (viz., the principal).

The said application has been resisted by the revision petitioner/respondent/2nd defendant submits that the order of the Trial Court in allowing

I.A. No. 1032 of 2008 suffers from illegality in the eye of law and that the Power Agent has to depose only about that had taken place after

7.4.2008 and that the trial Court has not taken into consideration of the principles laid down by the Supreme Court reported in the decision

reported in 2005 3 L.W. 403 [Janki Ashdeo Bhojwani and Anr. v. Indusind Bank Ltd. and Ors.] and therefore prays for allowing the revision.

In support of his contention that the application in I.A. No. 1032 of 2008 is not maintainable, learned Counsel for the revision petitioner cites a

decision of this Court in R. Arjunan v. Arunachala Gounder and Ors. reported in 2006 4 L.W. 520 and also cites a decision reported in Mrs.

Sakunthala Vs. Anandarajan, . The tenor of the above two decisions only point out to the legal principle that it is not permissible to permit to

represent the principal to appear or let in evidence in respect of acts of personal knowledge.

He also cites the decision of Honourable Supreme Court reported in 2005 3 L.W. 403 [Janki Ashdeo Bhojwani and Anr. v. Indusind Bank

Ltd. and Ors.] wherein the Honourable Supreme Court has observed that the Power of Attorney holder''s right/duty to ""act"" on behalf of the

principal would not include deposing in court in the place of Principal.

Giving anxious consideration to the respective submissions made on behalf of the revision petitioner and after bearing in mind the settled

principles of law in regard to Power of Attorney holder''s right to act on behalf of the Principal this Court opines that the Power of Attorney does

not have the personal knowledge of the temple and therefore he can neither depose on his personal knowledge nor can he be cross examined on

those facts which are to the personal knowledge of the principal and in that perspective, this Court partly allows the Civil Revision Petition with no

costs. However, when the Power of Attorney holder enters the witness box in place of plaintiff and deposes only with respect to documents; such

documents can be relied upon as per decision in Secretary to Government of India, Ministry of Defence and Another Vs. Indira Devi and Another,

. Resultantly, the order passed by the trial Court in I.A. No. 1032 of 2008 in O.S. No. 321 of 2005 dated 02.07.2008 stands modified.

Further, the Trial Court is directed to keep in mind of the principles laid down by the Supreme Court reported in 2005 3 L.W. 403 [Janki

Ashdeo Bhojwani and Anr. v. Indusind Bank Ltd. and Ors.] as mentioned supra and to act accordingly. Added further, it is open to the first

defendant/Temple to adduce evidence in the case through their Managing Trustee who is conversant with its affairs, since by this time he would

have recovered from his illness.