Dr. D. Vetrichelvan vs Samarasam

S. Palanivelu, J.—This Civil Revision Petition has been against the order, dated 12.11.2010, passed in I.A. No. 508 of 2010 in O.S. No. 327 of 2004, by the file of the District Munsif Court, Pattukkottai.

The Petitioners herein are the Plaintiffs in O.S. No. 327 of 2004 on the rile of the District Munsif Court, Pattukkottai, seeking for the relief of declaration and permanent injunction, for themselves and also on behalf of the worshippers of Sri Kathavaraya Swami Temple, Pattukkottai in respect of Suit pathway. The Defendant had executed a Power of Attorney in favour of his daughter, by name, Poonguzhali, for giving evidence. She filed proof Affidavit and during the chief examination, narrating the facts of the case, she has stated therein that she was familiar with the facts of the case by means of records and the information given by her father as well. She has sought to mark records on the side of the Defendant under Exs.B12 to B42 & Exs.B1 to B11 were marked during the cross-examination of PW1. At this juncture, the Plaintiffs have filed an application under Section 151 of C.P.C praying to delete paragraphs 2 to 15 in the Proof Affidavit filed by DW1, as the Power Agent of the Defendant and consequently, delete the marking of the Documents as Exhibits through her.

It is the stand taken by the Petitioners that as per well settled Principles of law, a Power Agent cannot depose evidence which are within the personal knowledge of the Principal and hence, D.W.1 is prevented from deposing the contents of the proof Affidavit, which are within the personal knowledge of the Defendant and hence, they seek to virtually strike off entire proof Affidavit filed by DW1.

The Petitioners were participated by the Respondent/Power Agent by filing Affidavit by stating that the evidence pertains only to the avers known by the Power Agent/mother in the Documents produced on behalf of the Defendant and she is not competent to speak about the matters, which are within the personal knowledge of the Principal of her mother.

The learned District Munsif, Pattukkottai, after hearing both parties, has dismissed the Application and hence, the Plaintiffs have come forward with this Revision.

Mr. V. Ramamoorthy, learned Counsel appearing for the Petitioners would contend that the very drafting of the proof Affidavit would show that she came to know the facts of the case from her mother and if so, she proposes to depose for the mother, then she will adduce evidence winch would be Written the knowledge of her mother and the same is barred by law.

Repelling the contention, Mr. A. Arumugam, learned Counsel for the Respondent would submit that the records which are sought to be marked by the Defendant, are all almost Revenue records and deposing about them is not written the personal knowledge of her mother.

In support of his contention, the learned Counsel appearing, for the Petitioners would place reliance on the decision of the Hon''ble Supreme Court in Janki Vashdeo Bhojwani v. Indusind Bank Ltd., 2005 (3) CTC 128 (SC), wherein it is observed that a Power of Attorney holder cannot enter witness box and depose instead of persons Claiming such share and such persons have to show that they have got independent source of income and they contributed for purchase of property from such independent income.

The learned Counsel appearing for the Petitioners argues that the tenor of the proof Affidavit would clearly show that all the evidence to be adduced on behalf of the Defendant are as per the proof Affidavit and it would indicate that they are within the personal knowledge of the Principal and that the Power Agent cannot be permitted to depose as per the settled proposition of law.

The same Judgment, was relied on by the learned Counsel appearing for the Respondent. He states that a mere holder of Power of Attorney cannot adduce evidence as to the independent sources of income and their contribution towards the purchase of the property from their own independent income which has to be clarified by the parties themselves and the mere Power of Attorney holder cannot be expected to have the personal knowledge.

It is submission of the learned Counsel, appearing for the Respondent that as mentioned in the Citation, the present Power of Attorney holder is not a mere holder of Power of Attorney and she is the daughter of the Defendant and further, she is residing near the suit property and Hence, the evidence which comes from her could be very relevant to the subject.

The learned Counsel for the Petitioners garnered support from following decision of this Court and other High Courts for the proposition that a Power of Attorney holder cannot speak or depose the aspects which are within the personal knowledge of the Principal. The said Judgments are as follows:

(i) R. Sundar v. R. Viswananthan, order of this Court dated 19.12009 in CRP.(PD). No. 16 of 2009;

(ii) Sakunthala v. Anandarajan, 2008 (1) MLJ 354;

(iii) S. Natarajan v. V. Thirwnavalavan, 2009 (5) CTC 620;

(iv) R. Arjunan v. Arunachala Gounder, 2007 (5) CTC 133;

(v) Usha Ranganmmn v. N.K.V. Krishnan, 2009 (4) LW 673; and

(vi) Ramasamy alias Admajothi v. Sirpi M. Raja, dated 21.2.2006.

In K. Rani v. Poorani Ammal (died), 2002 (1) MLJ 180, the learned Judge of this Court has held that on the sole ground that the witness happens to be a Power of Attorney, the evidence of the Power of Attorney cannot be rejected.

The Counsel appearing for the Respondent placed reliance on the bench decision of Andhra Pradesh High Court in Secretary to Government of India v. Indra Devi, AIR 2003 AP 329, wherein it is observed that when the Power of Attorney holder deposing with regard to the Documents, no personal knowledge required to be pressed into service establish case of the party. Further, the learned Judge have observed thus:

"Therefore, the requirement it that when GPA holder is representing the party the judge is required to record in Writing that he is permitted to appear and act on behalf of the party. In the instant case, the procedure prescribed under Rule 32 of Civil Rules of Practise has been followed. The case dealt with by the learned Single Judge of Rajasthan High Court was on a different footing. Apart from that, when once a person files a Suit on behalf of the party, as a G.P.A. holder he enters into the shoes of that party and except to the extent of personal knowledge, he is entitled to depose on other facts. In the instant, case, what was relied upon by the Plaintiffs is entirely Documentary evidence, which are public Documents and no personal knowledge was required to be pressed into service to establish the case of Plaintiff."

In the above said decision, certain guidelines have been provided for appreciating the evidence of Power of Attorney holder i.e., to say, to what extent there are admissible in evidence.

In Kailashi Devi v. Matadeen Agrawal, AIR 2001 Raj 306, the Jaipur Bench of Rajasthan High Court has observed that the evidence of Power of Attorney holder is to be evaluated as per his deposition before the Court and the Court finds that evidence of such Power of Attorney Joes, not repose confidence, die Court is at liberty to evaluate the same and there is no jurisdiction of the Court to say that the evidence of such person shall not be read at all and that the Plaintiff must appear in the case in her support.

In another decision of this Court in John Kennady @ Murugan v. V. Bhagavathi, 2008 (7) MLJ 646, rendered by S. Rajeswaran, J., it is observed that how far the evidence of Power of Attorney is valid is to be considered only at the time of disposing of the Suit.

I am in respectful agreement with the above said opinion expressed by the learned Judge, whatever may be the evidence, which are coming in this regard from the mouth of the Power of Attorney holder, have to be appreciated at the time of final disposal of the case and at the threshold, the Power of Attorney cannot be shut from furnishing evidence on the basis of the Documents and the knowledge which she is haying with regard to the facts of the case, which of-course, if the Court is able to pursue anything in the evidence of Power of Attorney to the effect that they would have only within the personal knowledge of the Principal, then it is for the Court to eschew it.

In the light of the above said observation, I am of the opinion that the Power of Attorney holder cannot be prevented from entering into the box by deleting paragraphs 2 to 15 in the proof Affidavit. If anything is found not to have been within the personal knowledge of the Principal, the Plaintiffs are always at liberty to agitate and to establish the same before the Court.

In such view of the matter, there is no valid ground made out to interfere with the order challenged before this Court. Hence, this Civil Revision Petition deserves dismissal as devoid of merits and the order, dated 12.11.2010 passed by the learned District Munsif Court, Pattukkottai, is confirmed.

In line, the Civil Revision Petition is dismissed as devoid of merits and the order, dated 12.11.2010 passed in I.A. No. 508 of 2012 in O.S. No. 327 of 2004 by the District Munsif Court, Pattukkottai is confirmed. Consequently, connected Miscellaneous Petition is also dismissed. No costs.

C.R.P. Dismissed - No Costs.