A power of attorney cannot substitute for an examination of a party with personal knowledge, but plaintiffs retain the right to call witnesses in their case, ensuring fairness in evidence presentation.

ORDER

This Civil Revision Petition has been filed challenging the order passed by the Trial Court, allowing the plaintiffs to examine the 4^th plaintiff as a witness, after examination of power of attorney of the plaintiffs as PW1, by over ruling the objection raised by the petitioner/ first defendant.

2. The respondents 1 to 4 herein/plaintiffs filed a suit in O.S.No.77 of

2018 seeking partition and separate possession of the property against the petitioner/ 1^st defendant and other defendants. The trial in the suit has been commenced and the Power of Attorney of the plaintiffs was examined as PW1. Thereafter, the plaintiffs wanted to examine the 4^th plaintiff as PW2 and his proof affidavit was filed. The said proof affidavit filed by the 4^th plaintiff was objected to by the petitioner/1st defendant on the ground that after examination of power of attorney of the plaintiffs as PW1, one of the plaintiffs cannot be examined as a witness. The trial court overruled the objection raised by the petitioner and allowed the 4^th plaintiff to examine himself as PW2. Aggrieved by the same, the petitioner/1st defendant has come before this court.

3. The learned counsel for the petitioner would submit that in order to withdraw the admissions made by the power of attorney during his cross examination, the plaintiffs wanted to examine the 4^th plaintiff as PW2 and the same is not permissible in law.

4. It is seen from the typed set of papers that the 4^th plaintiff was in France, when the power of attorney was examined as PW1 and now he returned to India. It is settled law that the power of attorney is not entitled to give evidence in respect of the facts, which are within the personal knowledge of the principal. In the case on hand, the power of attorney was already examined as a witness and he cannot be treated as a third party. The defendants cannot object to the rights of plaintiffs to examine any one of the plaintiffs as one of the witnesses on their behalf. If there is any inconsistency in the evidence of PW1 and PW2, it is always open to the petitioner to point out the same before the Trial court at the time of final disposal and argue about its impact on final outcome of the suit. Therefore, allowing examination of one of the plaintiffs as a witness will not cause any prejudice to the petitioner/1st defendant. Hence, I do not find any error in the impugned order passed by the Trial Court.

5. The learned counsel for the petitioner brought to the notice of this court that the evidence of PW2 was already closed, without cross examination of petitioner. Therefore, the petitioner may be permitted to cross examine the PW2. The petitioner, as an opposite party, is entitled to cross examine the PW2. Therefore, the Trial Court is directed to reopen the case and afford opportunity to the petitioner to cross examine the PW2.

6. With the above clarification, this civil revision petition is dismissed.

There shall be no order as to costs. Connected miscellaneous petition is closed.