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2008 DIGILAW 3781 (MAD)

A. Saraswathy v. Sundaresan & Another

2008-10-20

M.VENUGOPAL

body2008
Judgment :- 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. 2. The first Respondent/Temples Power Agent has stated before the Trial Court that the Temples 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). 3. 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 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 & Another v. Indusind Bank Ltd. & Others] and therefore prays for allowing the revision. 4. 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 & 3 others reported in (2006-4-L.W.520) and also cites a decision reported in (2008) 1 MLJ 354 [Sakunthala v. Anandarajan and another]. 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. 5. He also cites the decision of Honourable Supreme Court reported in 2005-3-L.W. 403 [Janki Ashdeo Bhojwani & Another v. Indusind Bank Ltd. & Others] wherein the Honourable Supreme Court has observed that the Power of Attorney holders right/duty to "act" on behalf of the principal would not include deposing in court in the place of Principal. 6. 5. He also cites the decision of Honourable Supreme Court reported in 2005-3-L.W. 403 [Janki Ashdeo Bhojwani & Another v. Indusind Bank Ltd. & Others] wherein the Honourable Supreme Court has observed that the Power of Attorney holders right/duty to "act" on behalf of the principal would not include deposing in court in the place of Principal. 6. 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 holders 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 v. Indira Devi reported in ( AIR 2003 AP 329 ). 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. 7. 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 & Another v. Indusind Bank Ltd. & Others] 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.