S. Natarajan vs V. Thirumavalavan

M.M. Sundresh, J.—The Revision has been filed by the petitioner, who is the defendant in the Suit challenging the order passed in I.A. No.

137 of 2007 in O.S. No. 95 of 2004 dated 18.09.2007, on the file of the learned Principal Subordinate Judge, Kumbakonam, wherein, the Trial

Court has ordered the Application under Order 3, Rule 1 and 2 of the CPC to appoint the respondent as plaintiff''s power agent to give evidence

and contest the case. The said Application was allowed by the Court below and being aggrieved of the same, the petitioner herein, has filed the

present Revision Petition.

The learned counsel for the revision petitioner submitted that the power agent cannot depose for the principal against the power agent and he

cannot substitute himself in respect of the matters in which the principal alone can have personal knowledge and also, in respect of the above facts,

the principal is liable to be cross examined. Further, the learned counsel for the petitioner contended that the word ''acts'' as mentioned in Order 3,

Rules 1 & 2 would only mean the deposition in respect of the acts done by the power of attorney holder in exercise of power granted by the

instrument. Hence, according to the learned counsel, the word would not include deposing in, instead of the principal for acts done by the principal

and not by the power of attorney holder. The learned counsel has also relied upon the judgment of the Hon''ble Supreme Court reported in Janki

Vashdeo Bhojwani and Another Vs. Indusind Bank Ltd. and Others, which is also followed by the judgment of the Hon''ble High Court reported

in R. Arjunan Vs. Arunachala Gounder, Thirumalaisami, Chennimalaisami and Thangaraj,

On the contrary, the learned counsel for the respondent submitted that it is true that the above two judgments clearly say that the power of

attorney holder cannot depose for the principal in respect of the matters of which the principal alone can have personal knowledge. But, according

to the learned counsel for the respondent in view of the specific power given to the respondent, he can prosecute the case and also, he can depose

about the facts which he has done in pursuant to the power given.

I have heard the learned counsel for the petitioner as well as the learned counsel for the respondent.

It was held by the Hon''ble Supreme Court and as followed by the Hon''ble High Court, the power of attorney holder cannot depose for

principal, in respect of the matters of which only the principal can have personal knowledge and over which he is liable to be cross-examined. It is

also seen that the word ''acts'' as mentioned in Order 3, Rules 1 & 2 of the CPC would not include deposing in place and instead of the principal

for the acts done by the principal. However, for the acts done by the power of attorney holder as a power agent, he can very well depose.

Further, the power of attorney holder can conduct the case on behalf of the principal. Hence, this Court is of the opinion that the power attorney

cannot give evidence over the matter which is exclusively to the personal knowledge of the principal. However, the petitioner can always give

evidence for the acts done by him in pursuant to the power given to him. It is mentioned by the learned counsel for the respondent, the petitioner,

power of attorney holder is also an attestor. It is made clear in such a case, as an attestor he can very well depose as a witness in the Suit.

With the above observation, this Civil Revision Petition is disposed of. Consequently, connected Miscellaneous Petition is closed. There shall be

no orders as to costs.