Kerala High Court
Jortin Antony vs Sree Padmanabha D. Marthanda Varma on 21 December, 2000
Author: M.R. Hariharan Nair
Bench: M.R. Hariharan Nair
ORDER M.R. Hariharan Nair, J.
1. What is under challenge is the permission granted to His Highness Marthanda Varma of the Travancore Royal Family by the II Additional Sub Judge, Thiruvananthapuram, to examine his nominee one S. Parameswaran Nair as his agent on behalf of the defendants I to 5 in O.S. No. 1170/95 of the II Additional Sub Court, Thiruvananthapuram. The civil suit was instituted by the present revision petitioners based on an agreement to sell executed by the members of the Royal Family including the 1st defendant - His Highness Marthanda Varma agreeing to convey 20 acres forming part of the Kowdiar Palace Compound at Thiruvananthapuram. Overruling the objections of the plaintiffs, the court below held that I.A. No. 56/99 seeking permission for examination of Sri. _S. Parameswaran Nair on behalf of the defendants 1 to 5 was maintainable and granted that relief.
2. Sri. P. Sukumaran Nair, who represented the revision petitioners, submitted that the impugned order is illegal and works out gross injustice. He points out that in the nature of the case, it is essential that the 1st defendant himself should be examined in so far as the relevant aspects to be brought out are matters within the knowledge of the 1st defendant alone personally. It is also pointed out that this is of utmost importance because the defendants have failed to answer properly the interrogatories served on them and a viva voce examination as allowed under O. 11 R. 11 of the Code of Civil Procedure is essential in the circumstances. Yet another contention is that the agent - Sri. S. Parameswaran Nair admittedly is a person who has knowledge about the affairs of the Royal Family only from the year 1997 and as such one totally incompetent to speak about the details relating to the agreement to sell executed between the parties on 4.7.1993 and of subsequent events of vital importance. The learned counsel further submits that the Power-of-Attorney originally executed by the defendants 2 to 5 in favour of the 1st defendant having been subsequently revoked, the 1st defendant himself was not competent to represent the defendants 2 to 5 and that as such the question of Sri. S. Parameswaran Nair deposing on behalf of the defendants 2 to 5 does not arise at all. All the same, the plaintiffs have no objection in the said Parameswaran Nair being examined as a witness for the defendants; but as made clear at the Bar, that is not what the defendants want. They want examination of the said person as their agent for and on their behalf.
3. The learned counsel for the respondents, at the outset, challenged the maintainability of the revision based on the decision in Ittoop v. Venkittan Embrandiri (2000 (2) KLJ 244) where it was provided that no revision would He from an interim order passed in exercise of discretion available with court and without adjudicating the rights of the parties and that it cannot be taken 'as a case decided' for the purpose of S. 115 of the CPC. There is no merit in this contention. It is well settled that an order passed under S. 151 of the CPC is subject to the re visional jurisdiction under S. 115 of the CPC. The impugned order substantially affects the rights of the parties and is not appealable. It is not a purely discretionary order as involved in the decision cited. In the circumstances, I am of the view that the revision is maintainable.
4. The contention of the defendants that they have a right under S. 2 of the Powers-of-Attorney Act, 1882 to nominate any person for the purpose of conduct of the case including deposition on their behalf does not appear to be fully correct. The said section provides that the Power-of-Attorney holder may, if he thinks fit, execute any instrument or do any thing in and with his own name and signature and own seal; where sealing is requited, by the authority of the donor of the power, and every instrument and thing so executed and done shall be as effectual in law as if it had been executed or done by the donee of the power in the name and with the signature and seal of the donor thereof.
5. The learned counsel for the revision petitioner heavily relied on the decision in Ravulu Subba Rao A Ors. v. I.T. Commissioner (AIR 1956 SC 604) in support of the contention that the Power-of- Attorney holder obtains a right as against the donor though by the execution of a Power of Attorney the donor does not get a right to be represented by a Power-of-Attorney holder. The facts involved in the aforesaid case were entirely different. What was considered there was whether one of the two partners of a firm can represent the other by virtue of a general power-of-attorney in the matter of registration sought on behalf of the firm before the Income Tax Officer. It was with reference to the special provisions in S. 26-A of the Income Tax Act that it was held that notwithstanding the execution of power-of-attorney, the power holder is incompetent to represent the other partners in the registration proceeding. The findings in the said decision, as such, cannot therefore be applied to the facts of the present case. The only principles applicable is that the section does not confer a right on any one to insist that he has a right under the section to insist that be would not do a thing directly and that it could always be got done through the donee utilising the power given by him.
6. The scope of the term 'Power-of-Attorney' may be considered. In Stroud's 'Judicial Dictionary', power-of-attorney is defined as an authority whereby one is set in the turne, stead or place of another to act for him. In Black's 'Law Dictionary', the term is defined as the instrument by which a person is authorised to act as an agent of me person granting it. In S. 2 of the Power-of-Attorney Act, as already referred to earlier a Power-of-Attorney empowers the donee of a power to do anything in and with his own name and Signature by the authority of the donor of the power. Once such authority is granted, the Act recognises everything done by the donee as effectual in law as if it had been done by the donee of the power in the name and with the signature and seal of the donor thereof.
7. Mathai v. District & Sessions Judge (1999 (2) KLT 156) is authority for the proposition that S. 2 of the Power-of-Attorney Act cannot override the specific provision of a statute which requires that a particular act should be done by a party in person. The question considered there was whether a Power-of-Attorney holder can appear on behalf of an accused and make plea in a criminal case. It was found that when the Cr.P.C. requires the appearance of an accused in a court in person, it is no compliance with it if a power-of-attorney holder appears for him.
8. The question whether a Power-of-Attorney holder can give evidence for and on behalf of a defendant has therefore to be considered independently and with reference to the provisions concerned available in the C.P.C. and the Evidence Act. O.19 R. 1 of the C.P.C. provides that any court may, at any time, for sufficient reason, order that any particular fact or facts may be proved by affidavit or that the affidavit of any witness may be read at the hearing on such conditions as the Court thinks reasonable. O.19 R. 2 further provides that upon an application evidence may be given by affidavit; but the Court may, at the instance of either party, order the attendance for cross-examination of the deponent. Under R. 2(2) such attendance shall be in court, unless the deponent is exempted from personal appearance in court or the court otherwise directs.
9. The learned counsel for the revision petitioners has correctly pointed out that the 1st defendant, though a member of the erstwhile royal family, does not come within any of the categories of exempted persons under S. 133 of the CPC. As such, he is a person who can be compelled to appear before the Court in person in case need arises therefor applying O. 19 R. 2 of the CPC. The fact that 0.6 R. 14 of the CPC allows pleadings to be signed by any person duly authorised by him to sign the same or to sue or defend on his behalf does not in any way mitigate against the other special provisions in the CPC intended to meet particular contingencies one of which is what is provided under O. 19 R. 2.
10. Reliance was placed on S. 60 of the Evidence Act to contend that the oral evidence must always be direct and that should be from the person concerned itself. A perusal of S. 60 of the Evidence Act, as a whole, would show that the reference to 'direct evidence' in the section is in contradistinction to hearsay evidence and not that only the person impleaded as a party can give evidence on his behalf But it is another matter whether person who deposes on behalf of another is really competent to do so. If it is found that he does not have knowledge about the relevant aspect, it is always open to the court to insist at any stage that the party should himself appear and give evidence and in case of failure draw an adverse inference.
11. Rr. 1 and 2 of O. 3 of the CPC provides as follows:
"1. Appearances, etc. may be in person, by recognised agent or by pleader.- Any appearance, application or act in or to any court, required or authorised 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 recognised agent, or by a pleader appearing, applying or acting, as the case may be, in his behalf:
Provided that any such appearance shall, if the Court so directs, be made by the party in person.
2. Recognised agents.- The recognised agents of parties by whom such appearances, applications and acts may be made or done are-
(a) persons holding powers of attorney, authorising 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 the appearance, application or act is made or done, in matters connected with such trade or business only, where no other agent is expressly authorised to make and do such appearances, applications and acts".
12. By virtue of O. 3 R. 2 CPC aforementioned, a power-of-attorney holder is certainly recognised agents who can, under R. 1 act in any court on behalf of a party, the only limitation being that where it is expressly provided by any law that the party should himself do the act, it has to be so done.
13. The learned counsel for the revision petitioner took me through the thoroughly unsatisfactory nature of answers given to the interrogatories served on the defendants and emphasised the need to make the defendants face a viva voce examination under O. 11 R. 11 CPC which provision provides as follows:
11. Order to answer or answer further.-Where any person interrogated omits to answer, or answers insufficiently, the party interrogating may apply to the court for an order requiring him to answer, or to answer further, as the case may be. And an order may be made requiring him to answer or answer further either by affidavit or by viva voce examination, as the court may direct."
14. There is no doubt at all that if motion is made under O.11 R. 11 CPC and the court is convinced that there is unsatisfactory answers to the interrogatories served and in spite of further opportunity to answer further, the same situation continues, it can direct the 1st defendant to appear in person for viva voce examination. However, that is not a matter which can be collaterally gone into in the present revision. That is an aspect which is to be dealt with as and when the plaintiffs move under O. 11, R. 11 of the CPC. The liability to appear for viva voce examination will not in any way be erased or eclipsed by the grant of permission to give evidence in the case on behalf of the donor to the Power-of-Attorney holder.
15. It is true that the Power-of-Attorney in favour of Sri. S. Parameswaran Nair was executed by the 1st defendant only on 9.3.1999 and presented in court on 10.3.1999 whereas the application which resulted in the impugned order had been filed as early as on 14.1.1999. All the same, it is a fact that as on the date when the question of granting permission was considered by the Court, the Power-of-Attorney was actually in court. Such being the case, there was nothing irregular on the part of the court below to have considered the impact of the Power-of-Attorney in the matter of granting the relief prayed for in the petition.
16. During hearing, reference was made to the provision in the relevant Power-of-Attorney executed on 9.3.1999 to the effect that Sri. S. Parameswaran Nair has actively dealt with the subject matter of the suit eversince 1997, whereas the circumstances in which the relevant agreement to sell was executed in 1993, the aspect of subsequent measurement of the property, etc., on which evidence is required relate to the period before 1997. But then, if on examination of the said S. Parameswaran Nair, it is seen that his evidence is not useful, the court can always direct the 1st defendant to appear in person and in case of failure, draw an adverse inference. Such an order cannot be taken as a prohibited matter where the donee and the donor simultaneously prosecute one and the same suit.
17. As held in Hamsa v. Ibrahim (1993 (2) KLT 698) when the act to be performed is personal in character, or when the act to be performed is annexed to a public office, or to an office involving any fiduciary obligation, the doner has necessarily to act directly. But apart from such exceptions, the law is well settled that whatever a person can do himself, he can do through an agent/Power-of-Attorney holder as well. The power-of-attorney holder can do everything empowered by the donor and all such acts done by the donee shall get legal recognition and acceptance as though such acts were done by the donor himself.
18. To sum up, the 1st defendant can certainty be allowed to be represented in the suit through his Power-of-Attorney holder who will also be competent to-give evidence on behalf of the 1st defendant. All the same, the 1st defendant will continue to be liable to appear in court in person whenever specific orders are passed by the court to that effect in exercise of powers under the relevant provisions. Viewed from this perspective, the impugned order does not deserve to be set aside. However, the Power-of-Attorney originally granted by the defendants 2 to 5 in favour of the 1st defendant being no more in existence, it cannot be said that the same situation will prevail as between the Power-of-Attorney holder and the defendants 2 to 5. In the absence of any Power-of-Attorney having been given by the defendants 2 to 5 in favour of Sri. S. Parameswaran Nair he cannot appear or give evidence for and on behalf of the defendants 2 to 5. Of course, if the defendants 2 to 5 so choose, they can examine Sri. S. Parameswaran Nair as a witness in the case, but that will be different from his examination as a representative of those defendants. The direction contained in the impugned order that Sri. S. Parameswaran Nair will have authority to give evidence on behalf of the defendants 2 to 5 is hence set aside. As already mentioned, the right to examine Sri. S. Parameswaran Nair on behalf of the 1st defendant also will be subject to the 1st defendant's liability to appear in person as and when the court so orders whether it be for facing the viva voce examination contemplated in O. 11 R. 11 of the CPC or otherwise.
With the aforesaid modification in the impugned order, the Civil Revision Petition is disposed of.