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2022 DIGILAW 470 (AP)

V. Gopi Krishna Reddy v. V. Roshiah

2022-04-29

B.S.BHANUMATHI

body2022
ORDER : Heard the learned counsel for the revision petitioners. Though notices were served on Respondent Nos.1 and 2, no appearance has been made. 2. The revision petitioner filed a suit for permanent injunction, the first petitioner is represented by his father as Power of Attorney Holder under a registered document, dated 03.04.2010. When the father of the plaintiffs filed affidavit in chief examination, the trial Court upheld the objection raised by the counsel for the defendants that General Power of Attorney cannot be permitted to depose before the Court in place of the first plaintiff. Aggrieved by this same, this revision petition is filed. 3. Learned counsel for the revision petitioners submitted that the first plaintiff has been residing in Singapore and thus, gave his Power of Attorney to his father, who is looking after the affairs and thus, the father can give evidence as a witness for the plaintiffs. Both the plaintiffs are brothers. 4. Learned counsel for the revision petitioner placed reliance on decision of the Apex court in Man Kaur (Dead) by Lrs., Vs., Hartar Singh Sangha, (2010) 10 SCC 512 , wherein the Apex Court has summarised where the evidence of Attorney Holder can be permitted, at Para 18, which reads as follows: “18. We may now summarise for convenience, the position as to who should give evidence in regard to matters involving personal knowledge: (a) An attorney-holder who has signed the plaint and instituted the suit, but has no personal knowledge of the transaction can only give formal evidence about the validity of the power of attorney and the filing of the suit. (b) If the attorney-holder has done any act or handled any transactions, in pursuance of the power of attorney granted by the principal, he may be examined as a witness to prove those acts or transactions. If the attorney-holder alone has personal knowledge of such acts and transactions and not the principal, the attorney-holder shall be examined, if those acts and transactions have to be proved. (c) The attorney-holder cannot depose or give evidence in place of his principal for the acts done by the principal or transactions or dealings of the principal, of which principal alone has personal knowledge. (c) The attorney-holder cannot depose or give evidence in place of his principal for the acts done by the principal or transactions or dealings of the principal, of which principal alone has personal knowledge. (d) Where the principal at no point of time had personally handled or dealt with or participated in the transaction and has no personal knowledge of the transaction, and where the entire transaction has been handled by an attorney-holder, necessarily the attorney-holder alone can give evidence in regard to the transaction. This frequently happens in case of principals carrying on business through authorized managers/ attorney-holders or persons residing abroad managing their affairs through their attorney-holders. (e) Where the entire transaction has been conducted through a particular attorney-holder, the principal has to examine that attorney-holder to prove the transaction, and not a different or subsequent attorney-holder. (f) Where different attorney-holders had dealt with the matter at different stages of the transaction, if evidences has to be led as to what transpired at those different stages, all the attorney-holders will have to be examined. (g) Where the law requires or contemplated the plaintiff or other party to a proceeding, to establish or prove something with reference to his “state of mind” or “conduct”, normally the person concerned alone has to give evidence and not an attorney-holder. A landlord who seeks eviction of his tenant, on the ground of his “bona fide” need and a purchaser seeking specific performance who has to show his “readiness and willingness” fall under this category. There is however a recognised exception to this requirement. Where all the affairs of a party are completely managed, transacted and looked after by an attorney (who may happen to be a close family member), it may be possible to accept the evidence of such attorney (who may happen to be a close family member), it may be possible to accept the evidence of such attorney even with reference to bona fides or “readiness and willingness”. Examples of such attorney-holders are a husband/ wife exclusively managing the affairs of his/her spouse, a son/daughter exclusively managing the affairs of an old and infirm parent, a father/ mother exclusively managing the affairs of a son/ daughter living abroad.” Learned counsel for the revision petitioners has drawn attention of this Court to the observations made particularly at point (d) in the above Para. 5. 5. A perusal of the Affidavit filed by the Power of Attorney Holder shows that he has not given evidence just ‘for the first plaintiff’, but as a witness, who claims to have well acquaintance with the facts of the case and is also holding the Power Attorney of the first plaintiff i.e., his son. As the Power of Attorney Holder is no other than the father of the plaintiffs and claims to have knowledge of the facts of the case, nothing prevents him from giving evidence of facts within his knowledge. It is nowhere observed in the record that the plaintiffs claim that they alone have knowledge nor is it made explicit that the Attorney Holder has no knowledge of the facts deposed. If at all there is any such statement made without knowledge, that can be pointed during the cross-examination and its veracity can be appreciated like the evidence of any other witness. 6. The trial Court committed error in observing that as per the pleading of the plaint, the plaintiffs alone have personal knowledge with regard to the matter in dispute and so in respect of it, the General Power of Attorney cannot depose for the principal and therefore, he cannot be permitted to depose for the first plaintiff. The observation of the trial Court is contrary to the material on file. The trial Court has placed reliance on the decision of the Supreme Court in S. Kesari Hanuman Goud Vs., Anjum Jehan and others, 2013(4) ALD 150 (SC) in support of legal position that Power of Attorney cannot depose in place of principal. This legal position does not go in contrast with the decision now cited by the learned counsel for the revision petitioners. In fact, the decision of the Apex Court Man Kaur’s case (supra) has been referred to and relied in the subsequent decision in S. Kesari Hanuman Goud’s case (supra). The contention of the revision petitioners/plaintiffs squarely falls under the scope as summarised by the Apex Court in the above cited decision. Thus, the impugned order is liable to be set aside. 7. Admittedly, he is the first witness to be examined on behalf of the plaintiffs. The contention of the revision petitioners/plaintiffs squarely falls under the scope as summarised by the Apex Court in the above cited decision. Thus, the impugned order is liable to be set aside. 7. Admittedly, he is the first witness to be examined on behalf of the plaintiffs. At the most, as per the Order 18 Rule 3(A) of C.P.C., the party to the suit, if at all wants to appear as a witness after the examination of witness(es) on his behalf, permission of the Court is required. But, that does not prohibit or preclude examination of witness(es) before the examination of party to a suit. The question whether such permission is required to be taken prior to or subsequent to the evidence of witness(es) is settled by various decisions and the same need not be discussed here as the same question is not before this Court now. 8. In the result, the CR.P., is allowed and the impugned order, dated 27.12.2017 passed in O.S.No.514 of 2012 is set aside. The revision petitioners/ plaintiffs are permitted to proceed with the affidavit which was already filed into Court. 9. As a sequel thereto, the miscellaneous petitions, if any, pending in this C.R.P., shall stand closed.