A Power of Attorney holder may manage proceedings but cannot testify on behalf of the principal for acts beyond their knowledge or where the principal must be cross-examined.

ORDER :

Milind Ramesh Phadke, J.

The present petition, under Article 227 of the Constitution of India , has been filed assailing the order dated 25.03.2023 passed by V Civil Judge, Junior Division, Morena in Civil Suit No.161-A/2021 whereby, the application filed by the respondent/plaintiff under Order 3 Rule 2 read with Section 151 of the Code of Civil Procedure, 1908 seeking permission to record the evidence through his registered Power of Attorney i.e. his nephew, namely, Rohit was rejected.

FACTS

2. Short facts of the case are that the respondent No.1/plaintiff had filed a civil suit for declaration and permanent injunction with the pleading that father of the plaintiff/respondent No.1 Ramcharan had purchased the land bearing Survey No.520, ad-measuring 0.6580 hectares situated at Village Devari, Tehsil and District Morena vide registered sale deed dated 30.10.1982 from one Mayaram, S/o Manohar and on the basis of said sale deed, his name has been mutated in the revenue records. On summons being issued, the petitioner/defendant No.1 appeared in the civil suit and filed his written statement denying all the averments made in the plaints and it was averred therein that father of the petitioner Ramcharan had sold the disputed land to Maujilal, Munnalal, Damodar, Banwari, Mohan, Ss/o Ramprasad vide registered sale deed dated 12.07.1985, as such the plaintiff had no share left in the disputed land. It was also averred that without relief of possession, the suit was not maintainable and ultimately, prayed for dismissal of the plaint.

3. During the pendency of the civil suit, the plaintiff/respondent No.1 executed a registered Power of Attorney in favour of his nephew Rohit pointing out that he is aware of all the aspects of the land in question and the dispute going on between the parties and as power of attorney holder is his nephew; therefore, he is in a position to depose before the learned Trial Court. On the basis of such registered Power of Attorney, the application had been filed before the Trial Court praying for conducting the proceedings of the Civil Suit through the Power of Attorney holder i.e. his nephew and further prayed to record his and other evidence through his Power of Attorney who knew everything about the dispute and the disputed property, but the said application was allowed. Hence, the present petition.

ARGUMENTS

4. Learned counsel for the petitioners had argued that the learned Trial Court had erred in passing the impugned order herein, as under Order 3 Rule 2 of CPC which empowers the Power of Attorney holder to act on behalf of the principal plaintiff and it is only with respect to conducting the act or proceedings which are being carried out before the learned trial Court but so far as deposition or entering into the witness box is concerned, the same is different act and can only be done by the principal plaintiff.

5. It was further argued that a power of attorney holder can only depose for the act which he has done and not for the act which the principal has done. Therefore, he cannot depose for the principal in respect of the matter which only the principal can have personal knowledge and in respect of which the principal is entitled to be cross- examined. The learned trial Court has thus allowed the application which is per se illegal, therefore, it needs interference.

6. While placing reliance upon the judgment passed by the Hon'ble Supreme Court in the matter of Janki Vashdeo Bhojwani Limited and others reported in (2005) 2 SCC 217 , it was argued that the power of attorney though can depose on behalf of principal but only to the extent of acts done/known by him, b