Madras High Court
John Kennady @ Murugan vs V.Bhagavathi on 10 June, 2008
Author: S.Rajeswaran
Bench: S.Rajeswaran
In the High Court of Judicature at Madras Dated: 10.06.2008 Coram The Honourable Mr.JUSTICE S.RAJESWARAN C.R.P.(PD).No.1768 of 2008 and M.P.No.1 of 2008 John Kennady @ Murugan .... Petitioner Vs. V.Bhagavathi Rep. By her Power of Attorney P.Cholaraja .... Respondent. Civil Revision Petition filed under Article 227 of the Constitution of India against the fair and decretal order dated 16.2.2008 passed in I.A.No.20126 of 2007 in O.S.No.19 of 2005 passed by the VII Assistant Judge, City Civil Court, Chennai. For Petitioner : Mr.L.Dhamodaran For Respondent: Mr.M.V.Muralidharan O R D E R
The defendant in the suit is the revision petitioner before this Court.
2. The suit, O.S.No.19 of 2005 has been filed by the respondent /plaintiff for permanent injunction restraining the defendant from in any manner throwing garbage and interfering with the plaintiff's peaceful possession and enjoyment of the plaint schedule mentioned property. A written statement has been filed by the petitioner/defendant. The defendant took an application in I.A.No.10895/2005 for appointment of Advocate Commissioner to note down the physical features of the plaint schedule property. The trial Court declined to entertain the said application. The same was challenged by way of Civil Revision Petition before this Court in C.R.P.PD.No.634/2007 and the same was allowed and the order of the trial Court was set aside. The respondent herein challenged the order passed in the Civil Revision Petition by way of S.L.P. before the Honourable Supreme Court and the same was dismissed. Thereafter, the trial Court appointed the Advocate Commissioner who had inspected the property and filed a report. Thereafter, the Power Agent filed the proof affidavit on behalf of the plaintiff in respect of the documents relating to the plaint schedule property prior to the execution and appointment of power agent. Since the proof affidavit is totally contrary to provisions of Order III Rule 1 and 2 of the C.P.C., an application was filed by the petitioner/ defendant in Application No.20126/2007 to reject the proof affidavit filed by the Power of Attorney representing the plaintiff. A counter was filed resisting the said application. The trial Court passed an order dated 16.2.2008 dismissing the application. Aggrieved by the same, the above revision has been filed by the petitioner/defendant.
3. I have heard the learned counsel for the petitioner. I have also gone through the documents filed in support of his submission.
4. Learned counsel for the petitioner submits that the application in I.A.No.20126/2007 was filed by him for rejecting the proof affidavit as the same runs contrary to the provisions of Order III Rule 1 and 2 of C.P.C. The Power Agent can adduce evidence on behalf of the principal only in respect of the acts done by him in exercise of the power granted by the instrument. While so, in the proof affidavit he had referred to certain registered documents which are much prior to the execution of the power of attorney for which obviously he has no knowledge. Therefore, he seeks indulgence of this Court by setting aside the order passed by the trial Court. In support of his submission, he relied on the judgments reported in (2005) 3 M.L.J. 109 (S.C) (Janki Vashdeo Bhojwani v. Indusind Bank Limited) and (2008) 1 M.L.J 354 (Sakunthala v. Anandarajan).
5. I am unable to accept the contention putforth by the learned counsel for the petitioner. As rightly pointed out by the trial Court, the suit itself has been filed by the Power of Attorney after obtaining leave from the Court. At that point of time, there was no objection raised by the petitioner/defendant. Moreover, the proof affidavit has been filed by the Power of Attorney on behalf of the plaintiff. Therefore, as found by the trial Court, in the proof affidavit , he has referred to certain registered documents executed by the parties prior to the date of execution of the Power of Attorney. Further, there is no legal bar for a power agent to give evidence on behalf of the principals and how far that evidence is valid is to be considered only at the time of disposing of the suit.
6. In the decision relied on by the learned counsel for the petitioner namely (2005) 3 M.L.J. 109 (S.C) (Janki Vashdeo Bhojwani v. Indusind Bank Limited), the Honourable Supreme Court has only stated that the power of attorney holder has rendered some "acts" in pursuance to power of attorney and he may depose for the principal in respect of such acts, but he cannot depose for the principal for the acts done by the principal and not by him. Therefore, in this case, the power of attorney being the plaintiff has only filed the proof affidavit and relied on certain registered documents which has been executed by the parties. Therefore, he is only going to depose in respect of the documents which are in existence and it is always open to the petitioner/defendant to cross examine the power agent with regard to the documents.
7. Regarding the judgment relied on by the learned counsel for the petitioner reported in (2008) 1 M.L.J 354 (Sakunthala v. Anandarajan), here also a learned Judge of this Court held that the power holder can appear as a witness in a personal capacity and he cannot be permitted to given evidence where the evidence is based on personal knowledge of the principal. The learned Judge has followed the order of the Supreme Court reported in 2005(3) MLJ 109 (cited supra). Therefore, the judgments relied on by the learned counsel for the petitioner would not render any assistance to the petitioner.
8. In the result, I do not find any infirmity or illegality in the order passed by the trial Court warranting interference under Article 227 of the Constitution of India. Hence, the Civil Revision Petition is dismissed. No costs. Consequently, connected M.P.No.1/2008 is also dismissed.
10.06.2008 vsi Index:Yes/No Internet: Yes/No To The VII Assistant Judge, City Civil Court, Chennai.
S.RAJESWARAN,J.
Vsi C.R.P.(NPD).No.1768 of 2008 10.6.2008