A party to a suit can call another party as a witness under specific circumstances, but must provide a valid justification for doing so according to procedural rules.

ORDER :

1. This application is filed by the plaintiff to issue subpoena to first and third defendant to attend and give evidence in the suit C.S.No.68 of 2021.

2. Heard Mrs.S.Vaitheeswari, learned counsel for the Mr.S.Sundaresan, learned counsel for the Applicant and Mr.S.K.Rahul Vivek, learned counsel for the Respondents 1 to 4.

3. Mrs.S.Vaitheeswari, the learned counsel appearing for the applicant/plaintiff would submit that the suit had been filed for a specific performance of the contract. The parties had produced the list of witnesses, documents and schedule for recording of evidence. However, the defendants had not produced their list of witnesses and affidavit of documents, but, they had filed an application to recast the issue by framing additional issues which was allowed on 29.10.2024. Hence, the additional documents and the list of witnesses were filed by the plaintiff and in that list, the first and third defendants were shown as witnesses to be examined on the side of the plaintiff.

4. It is the case of the learned counsel for the applicant that even though the agreements were entered into by the defendants 1 & 3 along with the second defendant in which the fourth defendant was a confirming party, they had entered appearance only through the fourth defendant on the strength of a Power of Attorney given to him much prior to the execution of the sale agreements. She would further submit that the defendants were not served in the suit as, they have entered caveat and such caveat has also been filed by the fourth defendant based upon a Power of Attorney that had been given much prior to the agreement of sale which is the subject matter of the suit.

5. She would vehemently contend that if such a Power of Attorney was valid even on the date of entering the sale agreement, the defendants would have entered upon the sale agreements only through Power of Attorney and not individually by themselves. She would further submit that the fourth defendant, who claim to be a Power of Attorney agent alone had chosen to show himself as a witness on the side of the defendant. She would contend that it is well established principle of law that the Power of Attorney can only speak about his role and cannot speak to the acts committed by the principal.

6. She would contend that in this case, the alleged Power of Attorney is of the year 2015 and subsequently the sale agreements were entered into in the year 2016. The said sale agreements had been entered by the defendants 1 to 3 as owners and the fourth defendant who claims to be the Power Agent was also a party, that too as a confirming party only as an executor of the Will and not otherwise. Therefore, he may also not be a right person to depose on behalf of defendants 1 to 3. Utmost he could only depose about why he acted as confirming party and upon the limited role which he was performed as party to the agreement. She would rely upon Order XVI Rule 14 of the ORIGINAL SIDE RULES to contend that a party to suit can call upon an another party to a suit to be examined as a witness.

7. In support of her contention that the Power of Attorney can only speak about the act done by the Power of Attorney in exercise of the power granted under the instrument and cannot with regard to the acts done by the principals by themselves. In this context, she had relied upon a judgment of the Hon'ble Apex Court in the case of Man Kaur (Dead) by LRs. Vs. Hartar Singh Sangha, (2010) 10 SCC 512 and in the case of Janki Vashdeo Bhojwani and another Vs. Indusind Bank Ltd. and Others , (2005) 2 SCC 217 . She h