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2006 DIGILAW 2908 (MAD)

Pachai Muthu & Others v. B. P. Prasad

2006-10-31

S.ASHOK KUMAR

body2006
Judgment :- Civil Revision Petition filed under Article 227 of the Constitution of India against the fair and decreetal order made in I.A.No.705 of 2006 in O.S.No.2480 of 1997 dated 17.04.2006 on the file of the District Munsif, Alandur. Aggrieved over the fair and decreetal order made in I.A.No.705 of 2006 in O.S.No.2480 of 1997 dated 17.04.2006 on the file of the District Munsif, Alandur this civil revision petition has been filed. 2. Brief facts of the case are as follows: The petitioners are defendants in O.S.No.2480 of 1997. The suit was filed by the plaintiff for the relief of recovery of vacant possession of the B schedule property and permanent injunction to restrain the defendant from interfering with the plaintiffs' peaceful possession and enjoyment of the 'C' schedule property. Issues were framed and the suit was taken up for trial. 3. A perusal of the record would show that the cross examination of P.W.1 was commenced on 4.3.1999. Subsequently it was adjourned several times because the defendant has taken time to cross examination of P.W.1 and at last the cross-examination was over on 7.3.2000. Thereafter P.W.2 was examined on 4.4.2000 and subsequently the matter was adjourned for cross examination of P.W.2. Merely 40 adjournments were taken by the defendant and at last it was over only on 9.12.2002. D.W.1 and D.W.2 were examined. 4. At that stage the plaintiff filed a petition to eschew the evidence of D.W.1 as he was the power of attorney of the defendants and he cannot take place for the principal. The power of attorney cannot depose with regard to the facts of the principal. Reliance was placed by an order passed by the Honourable Supreme court of India reported in 2005-3-LW 403 (91). 5. Therefore the learned District Munsif, Alandur allowed the I.A.No.705 of 2006 and eschewed the evidence of D.W.1. 6. Aggrieved over the same this civil revision petition is filed. 7. The Supreme Court of India in its judgment cited above has held as follows: "C.P.C. Order 3 Rule 1 and 2/ power of attorney holder's right/duty to "act" on behalf of Principal would not include deposing in court in the place of principal. 6. Aggrieved over the same this civil revision petition is filed. 7. The Supreme Court of India in its judgment cited above has held as follows: "C.P.C. Order 3 Rule 1 and 2/ power of attorney holder's right/duty to "act" on behalf of Principal would not include deposing in court in the place of principal. Agency/meaning of the word "to act" in O.3 R.2.Scope, Foreign Exchange (Immunity) Scheme (1991) Disclosure of sources, protection, nature and immunity, scope of-finding rendered by the DRT (Debt Recovery Tribunal), called, for, earlier by the Supreme Court(pursuant to its direction made in judgment reported in (2004) 3 SCC 584 ), set aside, observing that Tribunal erred in allowing the power of attorney holder to enter the witness box and depose instead of the appellants. Expression "acts" in O.3, R.2 would not include deposing in place and instead of the principal-If the power of attorney holder has rendered some "acts" in pursuance to power of attorney, he depose for the principal in respect of such acts, but he cannot depose for the principal for the acts done by the and not by him- He cannot depose for the principal in respect of the matter which only the principal can have a personal knowledge. "Agency/meaning of the word" to act" in O.3, R.2-Scope – Sec. C.P.C., Order 3, Rule 1 and 2/Power of Attorney holder's right/duty to "act" on behalf of principal would not include deposing in court in the place of principal." 8. From the above rulings it is clear that the power of attorney cannot depose for the principal for the acts done by the principal and he cannot depose for the principal in respect of the matter which only the principal can have a personal knowledge. 9. In view of the above I do not find anything is wrong in the order of the learned District Munsif passed in I.A.No.705 of 2006 eschewing the evidence of D.W.1. In fact by passing that order the trial court has given liberty to the defendants to cross examine the witness if necessary, if they choose to do so. 10. In the above circumstance I do not find any merit in this civil revision petition and the civil revision petition is dismissed. No costs. Consequently the connected M.P.No.1 of 2006 is also dismissed. However the personal act done by D.W.1 can be retained.