ORDER

By the present petition, the petitioners have challenged the order passed by Second Civil Judge, Senior Division Bareli District-Raisen in RCSA No. 37- A/2019 on 22.02.2024, whereby the application moved on behalf of petitioners under Section 151 of CPC was dismissed and the respondent was permitted to examine the power-of-attorney holder in her place.

2. Learned counsel for petitioners submits that as per the provision of Order III Rule 1 of CPC, the power-of-attorney holder can act only and is not competent to give evidence in a capacity of party. He further submits that power-of-attorney holder may appear before the Court as a witness but cannot be appeared as a party and, therefore, order passed by learned Trial Court is contrary to the provisions of law and is liable to be set aside.

3. Learned counsel for petitioners relied on the order passed by Co- ordinate Bench in M.P. No. 5277 of 2019 (Rameshchandra and Ors. vs. Rajesh Kumar Sharma and Ors.) on 05.04.2022, whereby the Co-ordinate Bench has held that power-of-attorney can appear in the witness box in his personal capacity and not on behalf of principal who has to depose and to be cross-examined before the trial Court. It is further held by Co-ordinate Bench, if the principal is not in a position to appear before the trial Court, a commission for recording his evidence may be issued under the relevant provisions of CPC.

4. Co-ordinate Bench considering the judgment delivered by Apex Court in the case of Shalini Shyam Shetty vs. Rajendra Shankar Patil reported in (2010) 8 SCC 329 declined to interfere in the order passed by trial Court, whereby the application moved on behalf of power-of-attorney holder was dismissed.

5. In the present matter, the trial Court has permitted the power-of- attorney holder to appear and depose as witness and the objection raised by petitioners have been rejected.

6. After considering the arguments raised by learned counsel for petitioners and considering the law laid down by Apex Court in the matter of Janki Vahdeo Bhojwani and another vs. Indusind Bank Ltd. and others reported in (2005) 2 SC 217, it appear that the power-of-attorney holder may appear and depose before the Court only in respect of the facts, those are in his personal knowledge and he cannot give statement in respect of facts, those are exclusively in the knowledge of principal. The relevant paragraphs of the judgment of Apex Court reads as under :

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.

14. Having regard to the directions in the order of remand by which this Court placed the burden of proving on the appellants that they have a share in the property, it was obligatory on the part of the appellants to have entered the box and discharged the burden. Instead, they allowed Mr Bhojwani to represent them and the Tribunal erred in allowing the power-of-attorney holder to enter the box and depose instead of the appellants. Thus, the appellants have failed to establish that they have any independent source of income and they had contributed for the purchase of the property from their own independent income. We accordingly hold that the Tribunal has erred in holding that they have a share and are