Madras High Court
Thangavel vs A.K.Velusamy on 19 September, 2014
Author: R.Mala
Bench: R.Mala
IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED :19.09.2014 CORAM : THE HONOURABLE MS.JUSTICE R.MALA C.R.P(PD).Nos.3436 and 3437 of 2014 and M.P.Nos.1,1 of 2014 Thangavel .. Petitioner in CRP.No.3436 of 2014 Savithiri .. Petitioner in CRP.No.3437 of 2014 Vs. A.K.Velusamy .. Respondent in both CRPs. Prayer:- Civil Revision Petitions filed under Article 227 of the Constitution of India, against the fair and decreetal order dated 05.07.2014 made in I.A.Nos.125 and 126 of 2014 in O.S.No.834 of 2013 and O.S.No.424 of 2012 respectively on the file of the III Additional Sub-Court, Coimbatore. For Petitioner : Mr.V.Vijayakumar for in both Mr.Udaya P.S.Menon For Respondent : Mr.K.M.D.Muhilan in both C O M M O N O R D E R
Civil Revision Petitions are filed against the fair and decreetal order dated 05.07.2014 made in I.A.Nos.125 and 126 of 2014 in O.S.No.834 of 2013 and O.S.No.424 of 2012 respectively on the file of the III Additional Sub-Court, Coimbatore.
C.R.P.(PD)No.3436 of 2014 (I.A.No.125 of 2014)
2.One Krishna Gounder as a plaintiff filed a suit in O.S.No.834 of 2013 on the file of the District Munsif Court, Coimbatore for directing the defendant/Thangavel/revision petitioner herein to remove the encroachment into the plaintiff's property as shown in yellow colour in the plaint plan immediately by decree of mandatory injunction, on his failure to do so, the encroachment at the costs of the defendant through process of the Court. The revision petitioner herein has filed a written statement and contested the same.
C.R.P.(PD)No.3437 of 2014 (I.A.No.126 of 2014)
3.Savithri/revision petitioner herein as a plaintiff filed a suit in O.S.No.424 of 2012 to pass a decree by cancelling the alleged deed of partition dated 18.06.2009 and by dividing the suit properties into 18 equal shares and to allot one such share to the plaintiff. Krishna Gounder, who is the eighth defendant in the suit, has filed a written statement and contested the same.
4.During pendency of both the suits, power agent of Krishna Gounder namely, A.K.Velusamy, who is the respondent herein, has filed the applications in I.A.Nos.125 and 126 of 2014 under Order III Rule 2(a) of C.P.C. for recognizing him as the power agent of Krishna Gounder and allow him to act and proceed with the suit on behalf of him. The trial Court, after hearing both sides, allowed the applications, against which, the present revision petitions have been preferred.
5.Learned counsel for the revision petitioners submitted that the power agent has not entitled to depose evidence on behalf of the Principal, because he has no personal knowledge about the case. To substantiate his arguments, he relied upon the decision of the Apex Court reported in 2010 (10) SCC 512 (Man Kaur (Dead) by Lrs. v. Hartar Singh Sangha), in clause-(c ) of para-18, it was held that the attorney-holder cannot depose or give evidence in place of his principal for the acts done by the Principal or transactions or dealings of the principal, of which principal alone has personal knowledge. He further submits that on 07.01.2014, the respondent/power agent has filed his proof affidavit and he is son-in-law of Krishna Gounder and the same was objected and then only, the respondent herein came forward with the applications after power of attorney deed came into existence on 21.01.2014. That factum was not considered by the trial Court and hence, prayed for allowing of the revision petitions.
6.Resisting the same, learned counsel for the respondent submitted that the power of attorney, who is the son-in-law of Krishna Gounder, married 25 years ago and he is residing with Krishna Gounder and that he has personal knowledge about the facts of the case. Hence, he prayed for dismissal of the revision petitions. To substantiate his arguments, he relied upon the following decisions:
(i) 2010-2-L.W. 357 (Standard Literature Company Pvt. Ltd. Vs. Padma and others);
(ii)AIR 2014 SC 630 (A.C.Narayanan v. State of Maharashtra and another);
7.Considered the rival submissions made on both sides and perused the typed set of papers.
8.One Krishna Gounder as a plaintiff filed a suit in O.S.No.834 of 2013 on the file of the District Munsif Court, Coimbatore for directing the defendant/Thangavel/revision petitioner in C.R.P.(PD)No.3436 of 2014 to remove the encroachment into the plaintiff's property as shown in yellow colour in the plaint plan immediately by decree of mandatory injunction, on his failure to do so, the encroachment at the costs of the defendant through process of the Court.
9.Savithri/revision petitioner in C.R.P.(PD)No.3437 of 2014 as a plaintiff filed a suit in O.S.No.424 of 2012 to pass a decree by cancelling the alleged deed of partition dated 18.06.2009 and by dividing the suit properties into 18 equal shares and to allot one such share to the plaintiff.
10.The defendants in both the suits filed the written statement and contested the same. It is true, when the power agent filed his proof affidavit on 07.01.2014, objection has been filed by the revision petitioners herein and that the respondent herein was not appointed as power of attorney. As per the document dated 21.01.2014, which was attested by the Notary Public, power of attorney deed was executed in favour of the power agent and on that basis, the power agent/respondent herein has filed the applications under Order III Rule 2(a) of C.P.C. for recognising him as power agent and permit him to act and proceed with the suit on behalf of Krishna Gounder/Principal.
11.Now it is appropriate to incorporate Order III Rule 2 of C.P.C., which is as follows:
3. Service of process on recognized agent (1) Processes served on the recognized agent of a party shall be as effectual as if the same had been served on the party in person, unless the Court otherwise directs.
(2) The provisions for the service of process on a party to a suit shall apply to the service of process on his recognized agent. Thus, from the above extract, at any stage, power of attorney can be filed the application after recognising himself as a party to the proceedings. So I am of the view, order passed by the trial Court in the application for recognising Velusamy/respondent herein as power of attorney to Krishna Gounder is sustainable and it cannot be set aside.
12.Furthermore, learned counsel for the revision petitioners has not questioned about the appointment of power of attorney and his only grievance is that he shall not be permitted to adduce evidence on behalf of Krishna Gounder, since he has no personal knowledge about the transaction.
13.Learned counsel for the revision petitioners relied upon the clause(c ) of para-18 of the Apex Court decision reported in 2010 (10) SCC 512 (Man Kaur (Dead) by Lrs. v. Hartar Singh Sangha), wherein it was held as follows:
(c ) The attorney-holder cannot depose or give evidence in place of his principal for the acts done by the Principal or transactions or dealings of the principal, of which principal alone has personal knowledge.
14.Learned counsel for the respondent has relied upon clause (g) in para-18 of the above decision, in which, it was held as follows:
(g) Where the law requires or contemplated the plaintiff or other party to a proceeding, to establish or prove something with reference to his state of mind or conduct, normally the person concerned alone has to give evidence and not an attorney-holder. A landlord who seeks eviction of his tenant, on the ground of his bona fide need and a purchaser seeking specific performance who has to show his readiness and willingness fall under this category. There is however a recognised exception to this requirement. Where all the affairs of a party are completely managed, transacted and looked after by an attorney (who may happen to be a close family member), it may be possible to accept the evidence of such attorney even with reference to bona fides or readiness and willingness. Examples of such attorney-holders are a husband/wife exclusively managing the affairs of his/her spouse, a son/daughter exclusively managing the affairs of an old and infirm parent, a father/mother exclusively managing the affairs of a son/daughter living abroad. In the above decision, it was held that a close relative has been permitted to depose about the case. But that close relative has not been mentioned as son-in-law, it was specifically mentioned that spouse, son, daughter, father and mother. In such circumstances, I am of the view, it is the duty of the trial Court to look into the matter as per the settled dictum of the Apex Court that whether the power of attorney is entitled to let in evidence about the case and whether the power of attorney has personal knowledge about the case. Under such circumstances, the power agent is not permitted to let in evidence, only Principal is a competent person to speak about the facts before he was appointed as power of attorney, since he has no personal knowledge about the same.
15.The above factum was also considered by AIR 2014 SC 630 (A.C.Narayanan v. State of Maharashtra and another), in para-26(ii), it was specifically mentioned as follows:
26. (i) .. ..
(ii) The Power of Attorney holder can depose and verify on oath before the Court in order to prove the contents of the complaint. However, the power of attorney holder must have witnessed the transaction as an agent of the payee/holder in due course or posses due knowledge regarding the said transactions. In the above decision it was held that the power agent can support the case of the petitioner, but the person who himself has personal knowledge about the transaction alone is a competent person to give evidence.
16.The above said view has been taken by the learned Single Judge of this Court in 2010-2-L.W. 357 (Standard Literature Company Pvt. Ltd. Vs. Padma and others), in para-12 it was held as follows:
12.In view of the settled legal position, it is observed that the power of attorney can depose on behalf of his principal but he cannot reveal the matters which are in the personal knowledge of the principal. In this case oral evidence of P.W.1, with regard to the physical features of the demised premises and the means possessed by the landlords as borne out by record can be considered. To this extent, the authorisation of first respondent to P.W.1 is valid.
17.Considering the aforestated circumstances of the case along with the above decisions, I am of the view, the order passed by the trial Court in respect of appointment of power agent/Velusamy is hereby confirmed. However, the trial Court is directed to record the evidence only in respect of personal knowledge of power agent in the suit transaction not the acts done by the Principal, which the Principal alone is having personal knowledge.
18.With the above direction, the Civil Revision Petitions are disposed of. No costs. Consequently, connected Miscellaneous Petitions are closed.
19.09.2014 Internet:Yes kj To III Additional Sub-Court, Coimbatore.
R.MALA,J.
Kj C.R.P(PD).Nos.3436 and 3437 of 2014 and M.P.Nos.1,1 of 2014 19.09.2014