P.Kasiammal v. K.Ponniammal

IN THE HIGH COURT OF JUDICATURE AT MADRAS

DATED: 26.04.2016

CORAM:

THE HONOURABLE MR. JUSTICE D. KRISHNAKUMAR CRP (PD)No.2052 of 2012 and M.P. No.1 of 2012 P.Kasiammal .. Petitioner Vs 1.K.Ponniammal 2.K.Raja 3.K.Vijayan 4.K.Venkatesan 5.K.Kumar 6.Junior Engineer, Operation and Maintenance, Tamil Nadu Electricity Board, Singarapettai, Uthangarai Taluk, Krishnagiri - District.

.. Respondents PRAYER: Civil Revision Petition filed under Article 227 of the Constitution of India, against the Decree and Order passed in I.A.No.599 of 2011 in O.S.No.107 of 2009 dated 09.02.2012, on the file of District Munsif cum Judicial Magistrate, Uthangarai, Krishnagiri District and praying to set aside the order in the petition.

For Petitioner : Mr.D.Balachandran For Respondents : No Appearance (for R1 to R6)

O R D E R

This Civil Revision Petition arises against the order and decreetal passed in I.A.No.599 of 2011 in O.S.No.107 of 2009 dated 09.02.2012, on the file of District Munsif cum Judicial Magistrate, Uthangarai, Krishnagiri District. 2.The petitioner herein has filed Interlocutory Application in I.A.No.599 of 2011 in O.S.No.107 of 2009, on the file of the District Munsif Court, Uthangarai, seeking permission of the Court to conduct the case in favour of the husband of the revision petitioner / plaintiff for the reason set out in the affidavit.

3.According to the learned counsel appearing for the petitioner, one Pachaiappan / husband of the revision petitioner filed a suit in O.S.No.107 of 2009 for permanent injunction and pending the suit, the revision petitioner filed an Interlocutory Application in I.A.No.599 of 2011, seeking permission of the Court to conduct the case in favour of the plaintiff (husband of the revision petitioner) on the basis of the power of attorney. By order dated 09.10.2012, the trial Court dismissed the application for the permission of conducting the

suit in favour of the plaintiff (husband of the revision petitioner) by relying upon para-6 of a judgment of this Court reported in 2009 (5) CTC 620 in S.Natarajan v. V.Thirumavalavan, which is held as follows: "6.It was held by the Hon'ble Supreme Court and as followed by the Hon'ble High Court, the power of attorney holder cannot depose for principal, in respect of the matters of which only the principal can have personal knowledge and over which he is liable to be cross-examined. It is also seen that the word 'acts' as mentioned in Order 3, Rules 1 & 2 of the Civil Procedure Code would not include deposing in place and instead of the principal for the acts done by the principal. However, for the acts done by the power of attorney holder as a power agent, he can very well depose. Further, the power of attorney holder can conduct the case on behalf of the principal. Hence, this Court is of the opinion that the power attorney cannot give evidence over the matter which is exclusively to the personal knowledge of the principal."

4.In the aforesaid judgment, this Court relied upon the decision of the Hon'ble Supreme Court reported in 2005 (3) CTC 128 in Janki Vashdeo Bhojwani and another v. Indusind Bank Ltd. And others, which is also followed by this Court in R.Arjunan v. Arunachala Gounder in 2007 (5) CTC

133. In the aforesaid judgment, it has been categorically held that the power of holder cannot depose in respect of the matter which only the principal can

have a personal knowledge and in respect of which principal is entitled to be cross examined. This proposition has been settled by this Court. Therefore, the power of attorney can appear and act on behalf of the party, but, she cannot be allowed to act as a witness on behalf of the principal in the capacity of principal. The power agent can neither depose on his personal knowledge nor can be cross examined on those exclusively known to the personal knowledge of the principal. Hence, there is no warrant to interfere in the order passed by the trial Court. At this stage, the learned counsel for the petitioner requested to grant liberty to file fresh application in the light of the aforesaid decision.

5. Accordingly, the Civil Revision Petition is disposed with liberty to the revision petitioner to file appropriate application, if so advised before the trial Court in accordance with provision of law. No costs. Consequently, connected Miscellaneous Petition is closed.

26.04.2016 vs Index : Yes/No Internet : Yes/No

To 1.The District Munsif cum Judicial Magistrate, Uthangarai, Krishnagiri District.

2.The Junior Engineer, Operation and Maintenance, Tamil Nadu Electricity Board, Singarapettai, Uthangarai Taluk, Krishnagiri - District.

D.KRISHNAKUMAR,J., vs CRP(PD)No.2052 of 2012 and M.P. No.1 of 2012 26.04.2016