Patna High Court
Rajmuni Devi vs Smt. Shyama Devi And Ors. on 20 February, 2007
Equivalent citations: AIR2007PAT142, AIR 2007 PATNA 142, 2007 (6) ABR (NOC) 959 (PAT) 2007 A I H C (NOC) 519 (PAT), 2007 A I H C (NOC) 519 (PAT), 2007 A I H C (NOC) 519 (PAT) 2007 (6) ABR (NOC) 959 (PAT), 2007 (6) ABR (NOC) 959 (PAT)
Author: Chandramauli Kr. Prasad
Bench: Chandramauli Kr. Prasad
ORDER Chandramauli Kr. Prasad, J.
1. Plaintiff-petitioner being aggrieved by the order dated 9-11-2005 passed by the Munsif, Bikaramganj in T.S. No. 113 of 1994 allowing the application dated 15-12-2004 filed by defendant No. 2 to permit her husband and the power of attorney holder to depose on her behalf, has preferred this application.
2. Short facts giving rise to the present application, are that defendant No. 2 opposite party No. 1 Shyama Devi filed petition dated 15-12-2004 praying to permit her husband to depose on her behalf, inter alia, contending that she had executed a power of attorney in favour of her husband Mangal Singh to look after the proceeding, to adduce witness, to depose on her behalf and to do all the needful in the suit.
3. By reason of the impugned order, said prayer has been allowed.
4. Mr. Sidharth Harsh, learned Counsel appearing on behalf of the petitioner, contends that the power of attorney holder cannot be allowed to depose on behalf of the Principal and in support of the submission, he has placed reliance on a judgment of the Supreme Court in the case of Janki Vashdeo Bhojwani and Anr. v. Induslnd Bank Ltd. and Ors. and my attention has been drawn to paragraph Nos. 17 and 21 of the said judgment which read as follows:
17.--On the question of power of attorney, the High Courts have divergent views. In the case of Shambhu Dutt Shastri v. State of Rajasthan 1986 (2) WLL 713 it was held that a general power of attorney holder can appear, plead and act on behalf of the party but he cannot become a witness on behalf of the party. He can only appear in his own capacity. No one can delegate the power to appear in witness box on behalf of himself. To appear in a witness box is altogether a different act. A general power of attorney holder cannot be allowed to appear as a witness on behalf of the plaintiff in the capacity of the plaintiff.
21.--We hold that the view taken by the Rajasthan High Court in the case of Shambhu Dutt Shastri (supra) followed and reiterated in the case of Ram Prasad (supra) is the correct view. The view taken in the case of Floriano Armmando Luis (supra) cannot be said to have laid down a correct law and is accordingly overruled.
5. Mr. Uma Shankar Singh, learned Counsel appearing on behalf of opposite party No. 1, however, contends that a power of attorney holder may not be allowed to depose on behalf of the principal but certainly he can appear as a witness. He has also placed reliance on the aforesaid judgment of Janki Vashdeo Bhojwani (supra) and my attention has been drawn to papragrah No. 13 thereof which reads as follows:
13.--Order III, Rules 1 and 2, C.P.C. empowers the holder of power of attorney to "act" on behalf of the principal. In our view the word "acts" employed in Order III, Rules 1 and 2 CPC, confines only in respect of "acts" done by the power of attorney holder in exercise of power granted by the instrument. The term "acts" would not include deposing in place and instead of the principal. In other words, if the power of attorney holder has rendered some "act" in pursuance to power of attorney, 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 Similarly, he cannot depose for the principal in respect of thed matter which only the principal can have a personal knowledge and in respect of which the principal in entitled to be cross-examined.
6. Having appreciated the reval submission, I find substance in the asubmission of Mr. Harsh. In view of the authoritative pronouncement of the Supreme Court in the judgment referred to above, the power of attorney holder cannot depose in place of defendant No. 2. However, in case, he intends to appear as witness, noting shall prevent him from doing so.
7. In view of aforesaid, the impugned order allowing the husband of defendant No. 1 and her power of attoney holder to appear as a witness in the capacity of defendant No. 1 can not be allowed to stand. The power of attorney holder, however may be qllowed to depose for the acts done by him allowed to depose for the acts done by him and not in place and instead of defendant No. 1 In the result, the application is allowed with the modification aforesaid.