Andhra HC (Pre-Telangana)
Podelly Chinna Chinnanna vs Bandari Pedda Bhumanna And Ors. on 29 December, 2003
Equivalent citations: 2004(1)ALD241A, 2004(1)ALT585
JUDGMENT B. Prakash Rao, J.
1. This case, arising out of a reference made by one of us (Justice B. Prakash Rao), involves a question of law as to whether a person holding General Power of Attorney on behalf of a party to the suit can be examined as a witness on its behalf.
2. Before dwelling into the question, the facts in brief are that this revision is filed at the instance of the defendant No. 10 aggrieved against the orders rejecting an application filed by him under Rule 32 of the Civil Rules of Practice seeking permission to prosecute the case through his General Power of Attorney, who is none other than his own son.
3. The respondent filed the suit for partition and separate possession of 1/10th share in the schedule properties, claiming that he along with the defendants 1 to 9 are joint purchasers and the defendant No. 10 is in illegal occupation in collusion with them and constructed a house and the other defendants 11 to 13 are illegal encroachers without any valid purchase. The defendants 1 to 9 admitted the joint purchase but however attributed mischief against the plaintiff in pursuing the layout and permission from the concerned authorities. The petitioner (defendant No. 10) along with defendants 11 and 12 claimed purchase under regular deeds and construction of houses. Similar is the claim on behalf of the defendant No. 14.
4. The petitioner who appeared through his Counsel filed the written statement and filed the present application on the ground that he is 70 years old and due to his old age, he executed a General Power of Attorney in favour of his son on 22-9-1999 to prosecute the case on his behalf. Contesting the application, the respondent in his counter stated that the petitioner is not so old and is hale and healthy attending to his business in plywood, milk and attending to agriculture and there are no bona fides as he is being shielded from giving evidence in the Court, apart from denying the signature on the deed. The Court below by looking into the contents of the deed, rejected the application on the ground that there is variation in the ages shown in the affidavit and the deed viz., 76 and 70 years respectively. Further in view of the objection raised in the counter and on the sole ground of age, the Court below held that he is not entitled to be represented through a General Power of Attorney and it lacks bona fides.
5. It is relevant to take note of the Order III Rules 1 and 2 of the Code of Civil Procedure, which reads as follows:
"1. Appearances, etc., may be in person, by recognized agent or by pleader :--Any appearance, application or act in or to any Court required or authorized by law to be made or done by a party in such Court, may, except where otherwise expressly provided by any law for the time being in force, be made or done by the party in person, or by his recognized agent or by a pleader appearing, applying, acting, as the case may be, on his behalf:
Provided that any such appearance shall, if the Court to directs, be made by the party in person.
2. Recognized agents:--The recognized agents of parties by whom such appearances, applications and acts may be made or done are--
(a) persons holding power of attorney, authorizing them to make and do such appearances, applications and acts on behalf of such parties;
(b) persons carrying on trade or business for and in the names of parties not resident within the local limits of the jurisdiction of the Court within which limits appearance, application or act is made or done, in matters connected with such trade or business only where no other agent is expressly authorized to make and do such appearances, applications and acts."
Under the aforesaid Rule 1, appearance is contemplated by a party primarily by himself or by any recognized agent or pleader on his behalf. As per Rule 2 the recognized agents include the persons holding Power of Attorney and also certain other persons carrying on the avocation for and in the names of parties who are not resident within the local limits for the jurisdiction etc. Thus, on a bare reading of the provisions, a party to the proceedings can appear and apply and act through recognized agent viz., the person holding power of attorney, which authorizes him to make such appearance or application or to act. The expressions used are 'appearance' 'application' or 'act' are quite comprehensive enough to include every step taken in the process of pursuing the case either as plaintiff or defendant. It has thus no restricted applicability nor exclude any particular act specifically. The only requirement for a person to act as recognized agent is to hold a valid authority duly conferring all such powers.
6. On behalf of the respondent, the decision of this Court reported in K. Bharathi v. Labour Officer, , is sought to be relied on. In this decision, while considering a case arising under the provisions of the Andhra Pradesh Shops and Establishments Act and placing reliance on the provisions of Rule 2 of Order III of the Code of Civil Procedure and Rule 32 of the Civil Rules of Practice and following the decision of the Rajasthan High Court in Ramprasad v. Harinarayan and Ors., AIR 1988 Raj. 185, it was held that the word 'acts' in Rule 2 or Order III CPC does not include the act of power of attorney holder to appear as a witness on behalf of the party and he can only act as a witness in his physical capacity to speak about the facts which are within his personal knowledge about the case but he cannot appear as a witness on behalf of a party in the capacity of that party. Relying on Section 118 of the Evidence Act, it was further held that testimonial compulsion is the very foundation of the Law of Evidence for without such compulsion every refusal to give evidence will render administration of justice impossible. It is not a legal fetish. It is a necessity and also the general rule. The party cannot stay back without entering the witness box and subject itself to cross-examination.
7. In the case of Ramprasad (supra), it was held that the word 'acts, used in Rule 2, Order III CPC does not include the act of power of attorney holder to appear as witness on behalf of a party an he can only be a witness in his personal capacity and can speak from his personal knowledge. Another decision of the same Court reported in Shambu Dutt Shastri v. State of Rajasthan, 1986 (2) WLN 713, was relied on which proceeds on the same principle. However, in these two cases from the Rajasthan High Court, the provisions of the Powers of Attorney Act nor the expression used in Rule 2 of Order III CPC and Rule 32 of the Civil Rules of Practice especially as to the applications and acts have come up for consideration.
8. Before going into the scope and limitations on a party to appear through General Power of Attorney, statutory coverage needs a peep into. Rule 32 of the Civil Rules of Practice framed under Section 126 of the Code of Civil Procedure, reads as follows:
"32. Party appearing by Agent:--(1) When a party appears by any agent, other than an advocate, the agent shall, before making of or doing any appearance, application, or act, in or to the Court, file in Court the power of attorney, or written authority thereunto authorizing him or a properly authenticated copy thereof together with an affidavit that the said authority still subsisting, or, in the case of an agent carrying on a trade or business on behalf of a party, without a written authority, an affidavit stating the residence of his principal, the trade or business carried on by the agent on his behalf and the connection of the same with the subject-matter of the suit, and that no other agent is expressly authorized to make or do such appearance, application or act.
(2) The Judge may thereupon record in writing that the agent is permitted to appear and act on behalf of the party; and unless and until the said permission is granted, no appearance, application, or act, of the agent shall be recognized by the Court."
9. The Rule contemplates that where a party wishes to appear through an agent, it should file the power of attorney with an authenticated copy along with his own affidavit stating that the authority is still subsisting. Whereupon, the Judge has to simply record in writing that the agent is permitted to appear. Thus the scope is very limited to the extent of the authority and the validity of the power so granted. The Court cannot embark on any enquiry into the reasons and correctness thereof in executing a power of attorney.
10. Order III of the Code of Civil Procedure, contemplating the mode of appearance of parties, under Rule 2, allows ecognized agents, who include power of attorney to appear, apply and act on behalf of party. There is no embargo as such in making appearance through power of attorney except to the extent of the requirement of prior permission from the Court.
11. Section 1-A of the Powers of Attorney Act, 1882 defines 'power of attorney', which in an inclusive definition, as any instrument empowering a specified person to act for and in the name of the person executing it. Section 2(21) of the Indian Stamp Act, 1899 also defines power of attorney, which is again an inclusive definition and borrows the very same expressions from Section 1-A of the Powers of Attorney Act. Thus it is the declaration of power to act for and in the name of executor. In fact, Rule 2 of Order m CPC and Rule 32 of the Civil Rules of Practice in their procedural ambit, contemplate appearance, application and act. Though the very expression 'act' is sufficiently wide enough, the procedural format extends to appearance and application. This is because every party has to appear and it is only to enable the power of attorney to surrogate by stepping into his shoes that the apt connotations are brought in. Section 85 of the Evidence Act envisages presumption of execution and authentication of the document where it is authenticated by Notary public, or any Court, Judge, Magistrate, Indian Consul etc. In view of such presumptions, the initial part of proof of document is dispensed with. The document does not require registration, except for the purposes of presentation and registration of documents as provided for under Section 32 of the Registration Act. Section 118 of the Evidence Act envisages as to who may testify. All persons are competent unless the Court considers incapacity for situations contemplated therein. Thus, incompetence is only an exception. The competence does not take in the compellability, though certain witnesses like officer of bank are exempted under Banker Books Evidence Act, 1891. It also does not bring a power of attorney in its fold of competency nor specifically prohibits. Therefore, there is no bar for a power of attorney to represent the principal unless the law does not intend, either expressly or impliedly. The provisions of Powers of Attorney Act have to be read with the aforesaid provisions of the Code of Civil Procedure and the Civil Rules of Practice, which amply substitutes the power of attorney in the place of a party. Section 60 of the Evidence Act insists oral evidence to be direct viz., the best evidence available should be brought before the Court. However, while weighing the evidence, Court can certainly take note of absence or withholding of best evidence and can draw inference. There is no doubt that parties to the proceedings have to appear and give evidence. A Power of Attorney surrogates a party in all aspects, including giving of evidence. As contemplated under Section 18 of the Evidence Act, statements made by an agent constitute a valid admission. However, in a given case, depending on facts and circumstances, due credits, presumptions and inferences can be drawn if the power of attorney is examined but not the party. But there is no bar completely against the power of attorney being examined on behalf of the party.
12. In Punishottam and Company v. Manilal and Sons, , the Supreme Court, while considering a case where the plaint is filed and verified by power of attorney, held that the same is valid. In Syed Kazim Sahab v. Sayeed Bakaran Sahab, 1990 (1) An.WR 256, this Court while considering Rules 32 and 33 of the Civil Rules of Practice held that presentation of plaint signed and verified by the power of attorney alone with the deed of power of attorney does not require any permission from the Court and even the absence of affidavit does not invalidate the same. In Tukaram v. Bheem Rao, , this Court considering the provisions of Order III, Rules 1, 2(a) and 6(2) CPC has held that the reasons for appointing a General Power of Attorney and to prosecute the litigation are irrelevant and the Court cannot probe into the propriety or otherwise of the party in executing such G.P.A. In M. Laxma Reddy v. Baqur All Baquri, 1977 (1) APLJ 32 (NRC), a Division Bench of this Court while considering Rules 16(2) and 17 of the Civil Rules of Practice and Rules 2(a) and 4 of Order m CPC held that in the absence of permission in writing by the Judge, there is no provision to dismiss the suit on the ground that the said provisions are not complied with.
13. In Hari Om Rajender Kumar v. Chief Rationing Officer of Civil Supplies, A.P., , this Court while considering Order III, Rules 1 and 2 and Section 119 of the CPC held that a non-advocate cannot be permitted to address the Court on the strength of power of attorney since the right to plead and practice in Courts for a principal is subject to the provisions of the Advocates Act. Similar is the view expressed by the Supreme Court in T.C. Mathai v. District and Sesions Judge, Thiruvananthapuram, holding that an agent with a power of attorney who is not authorized by a Court cannot become pleader and cannot appear before a Criminal Court. In Subba Rao v. IT. Commr, a case arising under the provisions of the Income Tax Act, 1922 which contemplates that the partners have to sign personally, the Supreme Court held that it does not include any such exercise by an agent on behalf of a partner and thus invalid. It was a case where the law specifically prohibited any such act by the agent in spite of the provisions of the Powers of Attorney Act and such exclusion of common law rule as to agents is held to be valid.
14. In view of the aforesaid principles and the provisions, it cannot be said that any restrictions can be imported which are not contemplated under the law. The very expression 'act' takes in every step by the G.P.A., on behalf of the executant and further it gets buttressed by the preceding expressions 'appearance' and 'applications'. However, the extent of credence to be given to the statement of a General Power of Attorney is totally a different consideration and it turns on each individual case. In a given circumstance, the non-examination of the principal or withholding himself may be fatal but the Court cannot throw out the evidence of a power of attorney on behalf of the principal, which has to be tested on the same lines as any witness subject to the principles under the law of evidence. In a given case, if the statement of a power of attorney cannot be relied on as not being a direct evidence, necessary presumption can always be drawn against the party for not coming before the Court. There is also no bar, if the circumstances warrant, to examine the party himself in the Court on a commission if he is otherwise disabled. But it cannot be said that there is any such total bar under law for examining a power of attorney on behalf of the executant. In the decision of this Court in K.Bharathi's case (supra), the attention of the learned Judge was not drawn to the provisions of the Power of Attorney Act and also as to the scope of the expressions used 'appearance' and 'applications' along with 'acts'. Even the other decisions considering the very provisions under Order III CPC and the Civil Rules of Practice have not been brought to the notice of the Court.
15. Therefore, the only requirement for a person to come into the witness box to speak in regard to any facts and circumstances of the case is that he should be competent enough to testify i.e., to speak. The competency as contemplated is a very wider in its connotation. There is distinctive feature between one who is said to be competent on behalf of the person to speak and another how far and to what extent the person can speak. These two aspects cannot be mixed up to reject a person from entering the witness box. As long as one holds proper authority under a Power of Attorney or otherwise, he is fully competent to come as witness on behalf of the said party. The competency as provided for further gets extended under Section 120 there of providing that in any civil proceedings the husband or wife of a party to a suit shall be a competent witness. Therefore, it cannot be said that the Power of Attorney holder cannot be said to be a incompetent as witness on behalf of the party/executant. Neither the decisions reported in Ramprasad's case (supra) or K. Bharathi's case (supra) considered these aspects and as such it has to be held that the aforesaid decision is not correct. It is thus held answering the reference that a Power of Attorney holder is a competent witness on behalf of the party/ executant and further that the effect and relevancy of such evidence has to be considered from proper perspective on the facts and circumstances of each case.
16. The office is accordingly directed to post the revision before the Single Judge for final disposal after obtaining necessary permission from the Hon'ble Chief Justice.