A power of attorney holder may only testify on matters within their own knowledge, not replace the principal's necessity for personal testimony.

JUDGMENT

Heard both sides. Government Pleader takes notice for respondents.

2. Petitioner filed O.S.No.39 of 2006 in the court of learned Munsiff, Devikulam seeking reliefs against the respondents. In the course of the case, a power of attorney executed in favour of her father was filed in that court. On the strength of that power of attorney, petitioner filed I.A.No.1373 of 2008 requesting that the power of attorney holder be permitted to represent the petitioner and to give evidence in lieu of oral evidence of petitioner. Learned Munsiff as per order dated 20.10.2008 received the power of attorney, permitted the power of attorney holder to represent the petitioner but refused permission to tender oral evidence in lieu of the oral evidence of the petitioner. That order is under challenge in this Writ Petition.

3. It is contended by learned senior counsel appearing for petitioner that, that part of the order by which it refused permission to the power of attorney holder to tender oral evidence in lieu of the oral evidence of petitioner is illegal in the sense that the power of attorney holder is entitled to give evidence on behalf of the petitioner with respect to the matters in his personal knowledge. Learned Government Pleader appearing for respondents contended that the request made in the court below was to permit the power of attorney holder to give evidence in lieu of the oral evidence of the petitioner which is not permissible.

4. Clause No.11 of the power of attorney (Ext.P1 in this proceedings)

enabled the power of attorney holder “ to appear, depose and to give evidence and file affidavits in evidence for and on my behalf and do all what is required for the effective conduct of the case as the plaintiff in the above case”. InUmmar Farooque v. Naseema ( 2005 (4) KLT 565 ), a Division Bench of this Court construing a power of attorney with reference to the provisions of Order III Rules 1 and 2 of the Code of Civil Procedure held that the power of attorney holder can give evidence only in respect of acts done by him in exercise of powers granted by the instrument, but he cannot depose for the principal in respect of the matter on which the principal alone can have personal knowledge.

5. In other words, power of attorney holder can give evidence with respect to the matters within her/his knowledge. What learned Munsiff has disallowed is power of attorney holder giving evidence 'in lieu of the oral evidence of the petitioner'. In the light of the relevant clause in the power of attorney executed and the decision of the Division Bench referred supra, power of attorney holder is entitled to give evidence in respect of matters within his personal knowledge. To that extent, the order under challenge is liable to be set aside. I do so.

Resultantly, this Writ Petition is allowed in the following lines:-

It is made clear that the power of attorney holder will be entitled to give oral evidence in respect of matters within his personal knowledge.

THOMAS P.JOSEPH, JUDGE.

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