THE HON’BLE SRI JUSTICE T. VINOD KUMAR CIVIL REVISION PETITION No. 1935 of 2023

ORDER

The present Civil Revision Petition is preferred against the order dated 18.01.2023 in I.A. No. 1106 of 2022 in O.S. No. 41 of 2016 passed by the Principal Junior Civil Judge, Medchal Malkajgiri, at Medchal.

2. The revision petitioners herein are the Defendants in the main Suit filed by the respondent herein as plaintiff vide O.S. No. 41 of 2016 under Order VII Rule 1 r/w Section 26 of CPC for recovery of possession of immovable property and mandatory injunction.

3. The petitioner herein had filed an interlocutory application vide I.A. No. 1106 of 2022 in O.S. No. 41 of 2016 under rule 33 of Civil rules of procedure (for short ‘CRP’) to permit the Special Power of Attorney (for short ‘SPA’) holder of the Petitioner/Defendant No.1 i.e. the Petitioner/Defendant No.3 to represent on her behalf in the Suit Proceedings.

4. The brief facts of the case are that the Respondent/Plaintiff has filed the subject suit against the Petitioners herein seeking delivery of possession by removal of structures and for other consequential reliefs. The petitioner No.1 and 2 have filed a written statement denying the claims made in the suit. The petitioner No.1 has executed a SPA dated 28.10.2022 in favour of petitioner No.3, thereby authorizing him to represent the petitioner no.1 in the above-mentioned suit proceedings. Thereafter the petitioners filed the underlying interlocutory application to permit the SPA holder, i.e., Petitioner No.3, to represent the Petitioner No.1 in the suit proceedings.

5. The Respondent in the underlying interlocutory application filed a counter affidavit denying the averments made by the Petitioners and contended that the SPA executed by Petitioner No.1 in favour of Petitioner No.3 suffers from procedural irregularities. The respondent specifically contended that the signatures of the attesting witnesses are not accompanied by their respective names and addresses, thereby casting doubt on the authenticity and validity of the document; that proper execution of such a document mandates attestation by competent witnesses in the presence of the executant, and preferably before a duly authorized official such as a Notary, and failure to adhere to the said essential legal formalities, renders the said instrument legally unenforceable.

6. The respondent contended that a Power of Attorney holder cannot depose in respect of matters which lie within the exclusive personal knowledge of the principal. The expression “acts” under Order III Rule 2 CPC does not extend to appearing as a witness in place of the principal; that the law mandates that parties must subject themselves to cross-examination, and in the event of genuine inability to appear, a Commission may be appointed to record such evidence.

7. The Trial Court upon hearing both the parties and perusing the record, observed that the SPA holder cannot depose on behalf of the principal regarding facts that are within the exclusive personal knowledge of the principal. Therefore, the SPA holder may represent petitioner No.1 in the proceedings whereas he cannot be permitted to give evidence on matters that require the personal knowledge of petitioner No.1.

8. Heard Sri M.S. Achyuth Bharathwaj, learned counsel for the petitioners and Sri Krishna Kishore Kovvuri, learned counsel for the respondent and perused the record.

9. The petitioners contend that the trial court while allowing the interlocutory applications filed by Petitioner No.1, has erroneously imposed a rider that Petitioner No.3 cannot depose on behalf of Petitioner No.1 regarding the facts within her personal knowledge; that the said condition is contrary to the settled position of law that an attorney holder is competent to depose about facts and transactions which are within his own personal knowledge or which he has handled in the capacity of agent; that the SPA is well acquainted with the business affairs and maintenance of the suit prop