M.K. Kuruvilla vs S. Vasantha

H. Billappa, J.—This revision is directed against the judgment and decree dated 1.12.2014 passed by XV Additional Judge, Court of Small Causes, Bengaluru, in HRC No. 10047/2013.

By the impugned judgment and decree, the Trial Court has allowed the petition and has directed the petitioner to vacate and deliver vacant possession of the petition schedule premises to the respondent within two months.

Aggrieved by that, the petitioner has filed this revision petition.

Briefly stated the facts are:

"The respondent filed HRC No. 10047/2013 for eviction of the petitioner. The petitioner has contested the matter. The Trial Court by its judgment and decree dated 1.12.2014 has allowed the petition and directed the petitioner to vacate the premises and deliver vacant possession to the respondent within two months. Therefore, this revision petition." 5. The learned counsel for the petitioner contended that the impugned judgment and decree cannot be sustained in law. He also submitted that the Trial Court has erred while placing reliance on the evidence of P.W. 1 who is a power of attorney holder. The respondent has not stepped into the witness box. Therefore, adverse inference should have been drawn. Instead of that, the Trial Court has placed reliance on the evidence of P.W. 1 and has allowed the petition which is not correct. Therefore, the judgment and decree cannot be sustained in law. In support of his submission, he placed reliance on the decision of the Hon''ble Supreme Court reported in Man Kaur (dead) by LRS. Vs. Hartar Singh Sangha, .

As against this, the learned counsel for the respondent submitted that the impugned judgment and decree does not call for interference. He also submitted that the Trial Court on proper consideration of the material on record and rightly placing reliance on the evidence of P.W. 1 has allowed the petition. P.W. 1 is the competent witness. He has deposed regarding the requirement of the respondent from his personal knowledge. Therefore, the Trial Court was justified in placing reliance on the evidence of P.W. 1. Therefore, the impugned judgment and decree does not call for interference.

I have carefully considered the submissions made by the learned counsel for the parties.

I find considerable force in the submission of the learned counsel for the petitioner. The respondent has filed HRC No. 10047/2013 for eviction of the petitioner. In the course of proceedings, the respondent has given power of attorney to P.W. 1 to conduct the proceedings and also to give evidence. P.W. 1 has deposed on behalf of the respondent. Perusal of the affidavit evidence of P.W. 1 and his cross examination shows that P.W. 1 has deposed as substitute for the respondent. While it is true, a power of attorney holder can be a competent witness and give evidence as to the facts which are within his knowledge. In the present case, the power of attorney holder i.e., P.W. 1 has deposed as substitute for the respondent which is not permissible. The affidavit evidence clearly indicates that P.W. 1 has deposed as substitute for the respondent.

In the case of Man Kaur (dead) by LRS. Vs. Hartar Singh Sangha, it is observed as follows;

"17. In Shambhu Dutt Shastri v. State of Rajasthan it was held that a general power of attorney holder can appear, plead and act on behalf of the party but he cannot become a witness on behalf of the party. He can only appear in his own capacity. No one can delegate the power to appear in the witness box on behalf of himself. To appear in a witness box is altogether a different act. A general power of attorney holder cannot be allowed to appear as a witness on behalf of the plaintiff in the capacity of the plaintiff.

The aforesaid judgment was quoted with approval in Ram Prasad v. Hari Narain. It was held that the word ''acts'' used in Rule 2 of Order 3 CPC does not include the act of power of attorney holder to appear as a witness on behalf of a party. Power of attorney holder of a party can appear only as a witness in his personal capacity and whatever knowledge he has about the case he can state on oath but he cannot appear as a witness on behalf of the party in the capacity of that party. If the plaintiff is unable to appear in the court, a commission for recording his evidence may be issued under the relevant provisions of CPC."

It is clear, no one can delegate the power to appear in the witness box on behalf of himself. A general power of attorney holder cannot be allowed to appear as a witness on behalf of the party in the capacity of that party. If the party is unable to appear before the Court, a commission for recording the evidence may be issued under the relevant provisions of CPC.

In the present case, the P.W. 1 who is a power of attorney holder has deposed as a substitute for the respondent. Therefore, the Trial Court was not justified in placing reliance on the evidence of P.W. 1 and allowing the petition. Therefore, the impugned judgment and decree cannot be sustained in law. The matter requires reconsideration.

Accordingly, the revision petition is allowed and the impugned judgment and decree passed by the Trial Court in HRC No. 10047/2013 is hereby set-aside. The matter is remitted to the Trial Court with a direction to reconsider the same, by giving opportunity to the parties to lead further evidence. The parties shall appear before the Trial Court on 22.4.2015 without further notice from the Trial Court. Office is directed to send back the records forthwith. The Trial Court is directed to dispose of the matter by 31.8.2015. The parties shall co-operate without seeking unnecessary adjournments.

I.A. Nos. 1 and 2 of 2015 does not survive for consideration and accordingly, they are rejected.