A Power of Attorney holder can only give formal evidence about the validity of the Power of Attorney and filing of a legal proceeding when he has no personal knowledge of the transactions of the principal. The Power of Attorney holder cannot depose or give evidence in place of the principal for the acts done or transactions undertaken by the principal, as the principal alone would have personal knowledge of such acts.

JUDGMENT

Manish Pitale, J. - The Petitioner is the original defendant and he is aggrieved by an order dated 06.04.2021 passed by the Court of Civil Judge, Junior Division, Mapusa, whereby an affidavit in evidence filed on behalf of the Petitioner by his Power of Attorney holder has been discarded. The Power of Attorney holder is the son of the Petitioner. The Court below has held that the Power of Attorney holder cannot depose in place of the principal because he has no personal knowledge about the facts, in respect of which statements have been made in the affidavit.

2. The Respondent has filed Regular Civil Suit No. 61/2010/D, against the Petitioner for eviction from the suit shop. The Petitioner has a proprietary concern and the business is carried out from the said shop.

3. In the said proceedings, the Petitioner through his Power of Attorney holder i.e. his own son, placed on record an affidavit in evidence of DW-1 dated 03.07.2019. The Respondent filed an application for discarding the said affidavit on the ground that the statements made in the affidavit could not be said to be in the personal knowledge of the Power of Attorney holder and that as per settled law, the affidavit did not deserve to be taken on record. The application was opposed on behalf of the Petitioner and as noted above, by the impugned order, the affidavit has been discarded.

4. Mr. S. D. Lotlikar, the learned Senior Counsel appearing for the Petitioner submitted that even if the entire affidavit of the Power of Attorney holder could not have been accepted, certain parts thereof could certainly be taken on record and that, in any case, the Respondent could discredit the said witness in cross-examination. It was submitted that the position of law as laid down by the Hon'ble Supreme Court in the case of Janki Vashdeo Bhojwani & Ors. vs. Indusind Bank Ltd. & Ors. (2005) 2 SCC 217 was not appreciated in the correct perspective by the Court below. Reliance was also placed on a Judgment of the Delhi High Court in the case of Durga Dass Banka vs. Ajit Singh & Ors. 2012 ILR IDelhi 607.

5. It was further submitted that the Petitioner himself is a Senior Citizen aged about 88 years and, in such circumstances, the affidavit in evidence of his Power of Attorney holder ought not to have been discarded.

6. Mr. Ramani, the learned Senior Counsel appearing for the Respondent, submitted that the Court below had correctly applied the position of law, as laid down by the Hon'ble Supreme Court in the case of Janki Vashdeo Bhojwani (supra) and reiterated thereafter in the case of Man Kaur (Dead) by Lrs. vs. Hartar Singh Sangha (2010) 10 SCC 512. It was submitted that in the present case, the Power of Attorney was executed on 03.07.2019, only for the purpose of the son of the Petitioner to take necessary steps in respect of the litigation. The Power of Attorney holder had no personal knowledge of statements made in his affidavit in evidence and, therefore, as per the settled position of law, the affidavit could not have been looked into and that the Court below was justified in discarding the same.

7. Before considering the facts of the present case and examining the correctness or otherwise of the impugned order, it would be appropriate to refer to the position of law as regards the extent to which a Power of Attorney holder can depose or lead evidence on behalf of the principal in Court proceedings.

8. In the case of Janki Vashdeo Bhojwani & Ors. (supra), the Hon'ble Supreme Court considered the question as to what acts the Power of Attorney holder could undertake on behalf of the principal in the context of legal proceedings. In that context, it was held at paras 13 and 14, as follows:

"13. Order III, Rules 1 and 2 CPC, empowers the holder of power of attorney to "act" on behalf of the principal. In our view the word "acts" employed in Order III, Rules 1 and 2 CPC, confines only in respect of "acts" done by the power of attorney holder in exercise of power granted by the instru