The holder of a power of attorney can only testify about acts done by him, not on behalf of the principal regarding matters requiring personal knowledge.

ORDER

This petition under Article 226 of Constitution of India has been filed against the order dated 17.8.2022 passed by 7th District Judge, Satna in Civil Suit No.5-A/2022 by which the objection raised by the petitioner with regard to the affidavit filed by Ashish Tiwari, who is the son-in-law of plaintiff no.1(A) in the capacity of holder of power of attorney of plaintiff no.1(A) has been rejected.

2. By relying upon the judgment passed by SSuupprreemmee CCoouurrtt iinn tthhee case of Janki Vashdeo Bhojwani and another Vs. Indusind Bank Limited and others, reported in (2005) 2 SCC 217, it is submitted by counsel for petitioner that power of attorney holder cannot depose for and on behalf of principal but he can depose only to the extent of acts done by him. It is submitted that in the present case there is nothing on record to suggest that anything was done by the holder of power of attorney and, therefore, the documents, which he wants to get them exhibited, cannot be permitted. Exhibiting a document is not a mere formality and the person exhibiting the documents has to prove the existence as well as admissibility of those documents.

3. Per contra, it is submitted by counsel for the respondents that a suit for eviction is pending. The suit was filed by the landlord, who has expired and his legal representatives are prosecuting the suit. The widow of the original landlord is an infirm and old lady and, therefore, she had appointed Shri Ashish Tiwari, her son-in-law as holder of power of attorney and, therefore, the trial court has rightly rejected the application filed by the petitioner by holding that the holder of power of attorney can depose for and on behalf of the plaintiff.

4. Heard the learned counsel for the parties.

5. The Supreme Court in the case of Janki Vashdeo Bhojwani (supra) has held as under :-

“12. In the context of the directions given by this Court, shifting the burden of proving on to the appellants that they have a share in the property, it was obligatory on the appellants to have entered the box and discharged the burden by themselves. The question whether the appellants have any independent source of income and have contributed towards the purchase of the property from their own independent income can be only answered by the appellants themselves and not by a mere holder of power of attorney from them. The power-of-attorney holder does not have personal knowledge of the matter of the appellants and therefore he can neither depose on his personal knowledge nor can he be cross-examined on those facts which are to the personal knowledge of the principal.

13. Order 3 Rules 1 and 2 CPC empower the holder of power of attorney to “act” on behalf of the principal. In our view the word “acts” employed in Order 3 Rules 1 and 2 CPC confines only to in respect of “acts” done by the power-of-attorney holder in exercise of power granted by the instrument. The term “acts” would not include deposing in place and instead of the principal. In other words, if the power-of-attorney holder has rendered some “acts” in pursuance of power of attorney, he may depose for the principal in respect of such acts, but he cannot depose for the principal for the acts done by the principal and not by him. Similarly, he cannot depose for the principal in respect of the matter of which only the principal can have a personal knowledge and in respect of which the principal is entitled to be cross-examined.”

6. Thus, it is clear that the holder of power of attorney can depose in respect of acts done by him and not for and on behalf of the principal.

7. However, It is submitted by counsel for petitioner that Supreme Court in the case of Man Kaur (Dead) by legal representatives Vs. Hartar Singh Sangha reported in (2010) 10 SCC 512 after considering the law laid down by the Supreme Court in the case of Janki Vashdeo Bhojwani (supra) has summarized the law and the case in hand is covered by Clause (g) of paragraph 18 of the aforesaid judgment.

8. The S