A father holding a registered Power of Attorney from his son can depose as a witness for the son in a suit for permanent injunction, if he has personal knowledge of the facts of the case.

ORDER :

Heard the learned counsel for the revision petitioners. Though notices were served on Respondent Nos.1 and 2, no appearance has been made.

2. The revision petitioner filed a suit for permanent injunction, the first petitioner is represented by his father as Power of Attorney Holder under a registered document, dated 03.04.2010. When the father of the plaintiffs filed affidavit in chief examination, the trial Court upheld the objection raised by the counsel for the defendants that General Power of Attorney cannot be permitted to depose before the Court in place of the first plaintiff. Aggrieved by this same, this revision petition is filed.

3. Learned counsel for the revision petitioners submitted that the first plaintiff has been residing in Singapore and thus, gave his Power of Attorney to his father, who is looking after the affairs and thus, the father can give evidence as a witness for the plaintiffs. Both the plaintiffs are brothers.

4. Learned counsel for the revision petitioner placed reliance on decision of the Apex court in Man Kaur (Dead) by Lrs., Vs., Hartar Singh Sangha, (2010) 10 SCC 512, wherein the Apex Court has summarised where the evidence of Attorney Holder can be permitted, at Para 18, which reads as follows:

“18. We may now summarise for convenience, the position as to who should give evidence in regard to matters involving personal knowledge:

(a) An attorney-holder who has signed the plaint and instituted the suit, but has no personal knowledge of the transaction can only give formal evidence about the validity of the power of attorney and the filing of the suit.

(b) If the attorney-holder has done any act or handled any transactions, in pursuance of the power of attorney granted by the principal, he may be examined as a witness to prove those acts or transactions. If the attorney-holder alone has personal knowledge of such acts and transactions and not the principal, the attorney-holder shall be examined, if those acts and transactions have to be proved.

(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.

(d) Where the principal at no point of time had personally handled or dealt with or participated in the transaction and has no personal knowledge of the transaction, and where the entire transaction has been handled by an attorney-holder, necessarily the attorney-holder alone can give evidence in regard to the transaction. This frequently happens in case of principals carrying on business through authorized managers/ attorney-holders or persons residing abroad managing their affairs through their attorney-holders.

(e) Where the entire transaction has been conducted through a particular attorney-holder, the principal has to examine that attorney-holder to prove the transaction, and not a different or subsequent attorney-holder.

(f) Where different attorney-holders had dealt with the matter at different stages of the transaction, if evidences has to be led as to what transpired at those different stages, all the attorney-holders will have to be examined.

(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 (who may happen to be a close family member), it may be possible to accept the evidence