The power of attorney holder cannot depose for the principal in matters of which the principal alone can have personal knowledge.

JUDGMENT

Ashok S. Kinagi, J. - Defendants No. 1 to 6, aggrieved by the order on I.A. 14 dated 3.12.2018 passed by the learned Senior Civil Judge and JMFC, Holalkere, have filed the present writ petition.

2. Brief facts leading rise to filing of this petition are as under:

Respondent No. 1 filed a suit in O.S. No. 26/2015 for the relief of partition and separate possession. Defendants filed written statement denying the averments made in the plaint. The Trial Court framed issues. Thereafter, respondent No. 1 filed an affidavit in lieu of examination-in-chief. Thereafter, respondent No. 1 filed a memo to discard the evidence of PW1 on the ground that PW1 is aged about 85 years and he is unable to attend the Court. The Trial Court vide order dated 11.9.2018 discarded the evidence of PW1. Thereafter, respondent No. 1 filed an application seeking permission to examine through power of attorney.

The said application was opposed by the defendants. The Trial Court after hearing the parties, allowed the application filed by respondent No. 1. Hence, this writ petition by defendants No. 1 to 6.

3. Heard learned counsel for petitioners and learned counsel for respondent No. 1.

4. Learned counsel for the petitioners submits that the Trial Court has committed an error in passing the impugned order. He further submits that the alleged power of attorney holder is not having any personal knowledge about the facts of the case. He further places reliance on the judgment of the Hon'ble Apex court in Janki Vashdeo Bhojwani & Another v. Indusind Bank Ltd. and Others reported in (2005) 2 Supreme Court Cases 217. Hence, he submits that the Trial Court without considering the law laid down by the Hon'ble Apex Court has proceeded to pass the impugned order. Hence, on these grounds, he prays to allow the writ petition.

5. Per contra, learned counsel for the respondent No. 1 submits that respondent No. 1 is aged about 85 years, is suffering from old age ailments and hence he is unable to attend the Court. He further submits that the Trial Court was justified in passing the impugned order. Hence, on these grounds, he prays to dismiss the writ petition.

6. Perused the records and considered the submissions made by learned counsel for the parties.

7. It is not in dispute that respondent No. 1 filed a suit for partition and separate possession. The petitioners filed written statement. The Trial Court framed issues. Thereafter, the matter was posted for recording evidence of the plaintiff i.e. respondent No. 1. Respondent No. 1 examined himself as PW1. PW1 was partially cross examined. When the matter was posted for further cross examination of PW1, respondent No. 1 filed a memo to discard the evidence of PW1 on the ground that PW1 is aged about 85 years and suffering from old age ailments. The Trial Court allowed the memo and discarded the evidence of PW1. Thereafter, respondent No. 1 filed an application seeking permission of the Court to proceed with the case through power of attorney on the ground that respondent No. 1 is aged about 85 years and he is suffering from old age ailments.

7.1. However, in order to prove the said contention, respondent No. 1 has not produced any records to show that he is suffering from old age ailments. Further the petitioner has not produced any material that the power of attorney has got personal knowledge about the facts of the case. It is not the case of the petitioner that power of attorney has personal knowledge of the case. It is well established principles of law that a power of attorney holder cannot depose for the principal in respect of matters of which the principal alone can have personal knowledge and in respect of which the principal is entitled to be cross examined.

7.2. The said fact has been overlooked by the Trial Court and proceeded to pass the impugned order. Further, the impugned order passed by the Trial Court is contrary to the law laid down by the Hon'ble Apex Court in Janki Vashdeo supra. The impugned order pass