Karnataka High Court
R Narasimha vs S P Sridhar on 30 August, 2013
Equivalent citations: AIR 2014 (NOC) 307 (KAR.), 2014 (1) AKR 352
Author: H.G.Ramesh
Bench: H.G.Ramesh
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W.P.No.26773/2013
IN THE HIGH COURT OF KARNATAKA AT BANGALORE
DATED THIS THE 30TH DAY OF AUGUST 2013 R
BEFORE
THE HON'BLE MR. JUSTICE H.G.RAMESH
WRIT PETITION No.26773/2013 (GM-CPC)
BETWEEN:
R. NARASIMHA
S/O LATE RAMAIAH
AGED ABOUT 43 YEARS
NO.1181, SRI GANGA PARAMESHWARI ROAD
K.P.PALYA, BEGUR, BEGUR HOBLI
BENGALURU - 560 068. ... PETITIONER
(BY SRI M J ALVA, ADVOCATE)
AND:
S.P.SRIDHAR
S/O PUTTASWAMY
AGED ABOUT 51 YEARS
No.366, 5TH CROSS
KUVEMPU NAGAR
MANDYA TOWN
MANDYA - 571 401 ... RESPONDENT
(BY SRI D.S.HOSMATH, ADVOCATE)
THIS WRIT PETITION IS FILED UNDER ARTICLES 226 &
227 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH THE
IMPUGNED ORDER DATED 12.12.2012 PASSED BY THE
LEARNED PRINCIPAL SENIOR CIVIL JUDGE AND C.J.M.
MANDYA IN O.S. No.57/2010 ON THE APPLICATION FILED BY
THE PETITIONER U/O III RULE 2(A) R/W SECTION 151 OF CPC
VIDE ANNX-A AND ETC.
THIS WRIT PETITION COMING ON FOR PRELIMINARY
HEARING IN 'B' GROUP, THIS DAY, THE COURT MADE THE
FOLLOWING:
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W.P.No.26773/2013
ORDER
H.G.RAMESH, J. (Oral):
Whether a party to a proceeding in Court could be represented by his Power-of-Attorney holder is the question that needs to be answered in this writ petition.
The answer is obviously in the affirmative. Whether a Power-of-Attorney holder could be examined as a witness in the case is altogether a different matter.
2. This writ petition is by the plaintiff in the suit in O.S.No.57 of 2010 and is directed against an interlocutory order dated 12.12.2012 passed by the Court of the Principal Senior Civil Judge, Mandya, dismissing his application filed under Order III Rule 2 of the Code of Civil Procedure, 1908 for leave to prosecute the suit through his Power-of-Attorney holder, who is his maternal uncle. Leave is refused by the trial Court on the ground that the attorney-holder cannot depose to the facts of the case as they are not within his personal knowledge.
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3. I have heard the learned counsel appearing for the parties and perused the impugned order.
4. The trial Court has examined the matter as if the prayer in the application was to examine the Power-of- Attorney holder as a plaintiff's witness. The approach is erroneous. It ought to have permitted the petitioner to prosecute the suit through his Power-of-Attorney holder as it is permitted in law.
5. There is no impediment in law for a party to prosecute his case through his Power-of-Attorney holder. Rules 1 & 2 of Order III of the Code of Civil Procedure permit a Power-of-Attorney holder of a party to appear, apply and act on his behalf in Court. This does not ipso facto mean that an attorney-holder could be examined as a witness in the case to give evidence or that he could address the Court. Both these matters are regulated by the Indian Evidence Act, 1872 and the Advocates Act, 1961 respectively. Some explanation on these two matters is necessary.
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6. Parties to a suit or proceeding are permitted to give evidence within the limits prescribed by S.5 of the Indian Evidence Act, 1872. A Power-of-Attorney holder of a party can be examined as a witness like any other witness, if he is competent in law to testify to the existence or non-existence of any fact in issue in any suit or proceeding or of such other facts as are declared to be relevant under the provisions of the Evidence Act, if such facts are within his personal knowledge, but he cannot appear as a witness in the capacity of that party i.e. himself as the plaintiff or the defendant. When and to what extent a Power-of-Attorney holder could give evidence is explained by the Supreme Court in Man Kaur v. Hartar Singh Sangha [(2010)10 SCC 512].
7. Rules 1 & 2 of Order III of the Code of Civil Procedure are subject to the provisions of the Advocates Act, 1961 and in particular Ss. 32 & 33. Hence, a Power-of-Attorney holder, who is not an Advocate, cannot be placed on the same footing as an Advocate. -5- W.P.No.26773/2013 A non-advocate cannot be permitted to address the Court on behalf of a party on the strength of the Power-of-Attorney. For that purpose, the party has to seek the leave of the Court. Grant of such leave is governed by S.32 of the Advocates Act, 1961. As held by the Supreme Court in Harishankar Rastogi vs. V. Girdhari Sharma (AIR 1978 SC 1019), a private person who is not an advocate, has no right to argue for a party without the prior permission of the Court, for which the motion must come from the party himself. It is open to the Court to grant or withhold permission in its discretion.
8. I may add that a Power-of-Attorney has to be construed strictly. It may not be out of place to refer to the following observations made by the Supreme Court in Suraj Lamp & Industries (P) Ltd. [(2012) 1 SCC 656] with regard to 'Power-of-Attorney':
"20. A Power of Attorney is not an instrument of transfer in regard to any right, title or interest in an immovable property. The Power- of-Attorney is creation of an agency whereby the grantor authorizes the grantee to do the acts -6- W.P.No.26773/2013 specified therein, on behalf of grantor, which when executed will be binding on the grantor as if done by him (see Section 1-A and Section 2 of the Powers of Attorney Act, 1882). It is revocable or terminable at any time unless it is made irrevocable in a manner known to law. Even an irrevocable attorney does not have the effect of transferring title to the grantee."
9. In view of the above, the order of the trial Court is liable to be set aside as it is contrary to Rules 1 & 2 of Order III of the Code of Civil Procedure and it is accordingly set aside. The application of the petitioner filed before the trial Court to prosecute his suit through his Power-of-Attorney holder is allowed. No order as to costs.
Petition allowed.
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JUDGE hkh.