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AMICUS AI
Citation Codes
Equivalent Citations
citation codes
Case Number
Advocates
  • T.Dhanya Kumar
  • S.S.Swaminathan
  • Pradeep Kumar
Judges
  • Mr. Justice P. Jyothimani
Acts
  • Order III Rules 1 and 2 of the Code of Civil Procedure
  • Order III Rule 2 of the Code of Civil Procedure
  • Section 151 of the Code of Civil Procedure
  • provision of Order III Rule 1 and 2 of CPC,
  • ARTICLE 227 CONSTITUTION OF INDIA
  • Order III, Rules 1 and 2, CPC,
  • Order III Rule 2, CPC
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Cites
Cited by
Citation Codes
Equivalent Citations
citation codes
Case Number
Advocates
  • T.Dhanya Kumar
  • S.S.Swaminathan
  • Pradeep Kumar
Judges
  • Mr. Justice P. Jyothimani
Acts
  • Order III Rules 1 and 2 of the Code of Civil Procedure
  • Order III Rule 2 of the Code of Civil Procedure
  • Section 151 of the Code of Civil Procedure
  • provision of Order III Rule 1 and 2 of CPC,
  • ARTICLE 227 CONSTITUTION OF INDIA
  • Order III, Rules 1 and 2, CPC,
  • Order III Rule 2, CPC
See more information ...
Smart Summary

Structured Summary of the Opinion

Factual and Procedural Background

The revision petitioner, who was the plaintiff in the suit, filed this revision under Article 227 of the Constitution of India challenging an order of the learned District Munsif, Alandur. The impugned order allowed an application by the 5th defendant under Section 151 of the Code of Civil Procedure to reject a proof affidavit(s) presented by the plaintiff's power agent (the opinion refers to "Mrs. Sakunthala" in one place and to the plaintiff's brother "Ramalingam" as the power agent in other places).

The underlying suit sought specific performance of an alleged oral contract of sale dated 20.04.1994, a direction for the defendants to execute and register a sale deed upon receiving an additional sale consideration of Rs.15,000/-, and a permanent injunction. The defendants denied that any oral contract was entered on 20.04.1994 and denied the fixation of the sale price at Rs.15,000/-. They asserted that a power had been given in favour of the 4th defendant who sold the land to one Sabeena Beevi, and alleged that the plaintiff had been set up by her brother Ramalingam.

It was not disputed at trial that the plaintiff was permitted to appear through her brother Ramalingam as her power agent, and that the power to him was given after the plaintiff had been partly examined in chief. The 5th defendant filed I.A. No. 2776 of 2006 seeking rejection of the proof affidavit filed by the plaintiff's power of attorney agent on the ground that a power granted after the alleged transaction could not be expected to give evidence about an oral agreement said to have been executed years earlier (the suit was filed in 1995 while the power was alleged to have been executed in 2003). The trial Judge allowed that application and rejected the proof affidavit. The plaintiff then filed the present revision under Article 227 challenging that order.

Legal Issues Presented

  1. Whether a recognised power of attorney holder (a power agent), who was given the power after the date of an alleged oral agreement, can be permitted to depose on behalf of the principal about the terms and existence of that prior oral agreement.
  2. Whether the trial Judge committed irregularity or illegality in allowing the application under Section 151 CPC to reject the power agent's proof affidavit and in refusing to permit the agent to give evidence about the 1994 oral agreement.

Arguments of the Parties

Petitioner's (Plaintiff's) Arguments

  • The petitioner's counsel contended that Ramalingam (the plaintiff's brother and the power agent) was the proper person to give evidence about the alleged oral agreement because the defendants themselves had admitted that it was Ramalingam who set up the plaintiff to file the suit.
  • Implicit in the contention was that the defendants' written statement acknowledged Ramalingam's central role, making him a necessary witness for the plaintiff's case regarding the oral agreement dated 20.04.1994.

Respondent's (5th Defendant's) Arguments

  • The respondent's counsel argued that since the power of attorney was given several years after the alleged agreement, the power agent could not be expected to speak about the earlier agreement which involved the principal's personal knowledge.
  • The respondent relied on the Supreme Court judgment in Janki Vashdeo Bhojwani & another v. Indusland Bank Ltd. (AIR 2005 SC 439) holding that a person who obtains power much after a transaction cannot depose on behalf of the principal when the matter requires the principal's personal knowledge.
  • The respondent also relied on Rajmuni Devi v. Smt. Shyama Devi & others (AIR 2007 Patna 142), which referred to the said Supreme Court judgment and applied the same principle.

Table of Precedents Cited

Precedent Rule or Principle Cited For Application by the Court
Janki Vashdeo Bhojwani and another v. Indusland Bank Ltd. (AIR 2005 SC 439) Holds that a person who obtained power of attorney much after the transaction cannot be expected to depose on behalf of the principal where the evidence depends on the principal's personal knowledge; the power to "act" does not include deposing in place of the principal. The court relied on this Supreme Court authority to conclude that the power agent could not be permitted to speak about the oral agreement of 20.04.1994, especially where the power was executed years after the alleged transaction.
Rajmuni Devi v. Smt. Shyama Devi and others (AIR 2007 Patna 142) Refers to and applies the principle in the Supreme Court judgment (AIR 2005 SC 439) regarding the limitations on a power agent deposing for a principal when the matter is within the principal's personal knowledge. The respondent relied upon this Patna High Court judgment which referred to the Supreme Court decision; the court treated it as supportive of the principle that a later-appointed power agent cannot depose about earlier personal knowledge of the principal.
Shambhu Dutt Shastri v. State of Rajasthan (AIR 1998 Rajasthan 185) Holds that the word "act" in Order III Rule 2, CPC, does not include the power of attorney holder appearing as a witness on behalf of the party; such holder can only be a witness in his personal capacity and cannot appear as witness for the party as the party; also notes alternative procedure of recording evidence by commissioner. The Supreme Court considered this Rajasthan High Court view and the opinion relied on it to reinforce the interpretation that a power agent cannot depose in place of the principal about matters that require the principal's personal knowledge.

Court's Reasoning and Analysis

The court began by identifying the statutory framework in Order III, Rules 1 and 2 of the Code of Civil Procedure, which authorises appearances by recognised agents including holders of powers of attorney. The statutory text was set out to show the scope of "appearances" and "recognised agents."

The court then examined Supreme Court authority construing the phrase "an act" in the provision. The cited Supreme Court decisions were read to hold that empowerment of an agent to do "an act" does not extend to the agent deposing in place of the principal when the evidence sought to be given is based on the principal's personal knowledge.

The court noted the specific reasoning in the Supreme Court authority that matters such as whether an appellant had an independent source of income to contribute to the purchase of property are questions answerable only by the principal and not by a mere holder of a power of attorney, since the power holder lacks the personal knowledge and cannot be cross-examined on facts exclusively within the principal's knowledge.

The court further relied on the Rajasthan High Court view in Shambhu Dutt Shastri, where it was held that the "act" under Order III Rule 2 does not include appearing as a witness on behalf of the party; the power agent may give evidence only in his personal capacity and any knowledge he has can be stated personally but not in lieu of the principal. The judgment also observed that where the plaintiff cannot appear, a commissioner may be appointed to record evidence.

Applying these principles to the facts at hand, the court observed that the power agent (though the plaintiff's brother) could not be expected to speak about an oral agreement allegedly entered on 20.04.1994 when the power of attorney was granted in 2003. The court treated the gap in time and the nature of the evidence (requiring personal knowledge of the principal) as decisive.

On the combined statutory construction and precedential authorities, the court concluded that there was no illegality or irregularity in the trial Judge's order rejecting the proof affidavit of the power agent and disallowing him to depose in place of the principal on the subject of the 1994 oral agreement.

Holding and Implications

Holding: The revision petition fails and is dismissed. The court found no irregularity or illegality in the order of the trial Judge which had allowed the application to reject the proof affidavit of the power agent and thereby disallowed the agent from deposing about the alleged oral agreement. The court ordered no costs and closed the connected miscellaneous petition.

Implications:

  • The direct effect is that the trial Judge's order rejecting the power agent's proof affidavit and disallowing the agent to depose on behalf of the principal is sustained.
  • The decision applies established precedent on the limits of a power agent's ability to give testimony for a principal when the evidence involves the principal's personal knowledge; the opinion does not purport to create a new legal principle beyond those precedents.
Show full summary ...

    Mrs.Sakunthala v. Anandarajan

    The revision petitioner, who is the plaintiff in the suit, filed this revision under Article 227 of the Constitution of India, against the order of the learned District Munsif, Alandur in allowing the application filed by the 5th defendant in the suit under Section 151 of the Code of Civil Procedure for rejecting the proof affidavit filed by the Power Agent of the plaintiff, Mrs.Sakunthala.

    2. The petitioner filed the suit for specific performance of a contract of sale stated to have been entered orally on 20.04.1994 and for a direction against the defendants to execute and register sale deed after receiving the additional sale consideration of Rs.15,000/- and also for permanent injunction. The defendants have filed written statement denying categorically that no contract or oral agreement was entered on 20.04.1994 to sell the suit property to the plaintiff. Further, the fixation of sale price at Rs.15,000/- is also denied. However, the defendants have stated that they have given power in favour of the 4th defendant, who, on his behalf and as power of attorney agent, sold the land in favour of one Sabeena Beevi. It is the definite case of the defendants in the written statement that the plaintiff has set up her brother Ramalingam to claim as if a sale agreement was entered into on 20.04.1994. It is the further case of the defendants in the written statement that Ramalingam, the brother of the plaintiff approached the defendants and insisted them to sell the property and it is the said Ramalingam, who has set up the plaintiff to issue notice.

    3. It is not in dispute that the plaintiff was permitted to appear through her brother Ramalingam as her power agent. It is also not in dispute that the said power was given to the said Ramalingam after the plaintiff was examined in chief partly. When the said Ramalingam was intended to give evidence about the alleged oral agreement dated 20.04.1994 between the plaintiff and the defendants, the 5th defendant has filed an application in I.A.No.2776 of 2006 as stated above for rejecting the proof affidavit filed by the power of attorney agent of the plaintiff Mrs.Sakuntha. The said application was filed on the basis that the power agent of the plaintiff cannot be allowed to speak about the oral agreement for sale stated to have been executed between the plaintiff and the defendants on 20.04.1994. Further, it was the case of the 5th defendant that when the suit was filed on 20.04.1995 based on the oral agreement, the power stated to have been given by the plaintiff to her brother Ramalingam is of the year 2003 and therefore, the power of attorney cannot be expected to speak about the contract stated to have been entered seven years prior to the power executed.

    4. The learned trial Judge has allowed the said application and rejected the proof affidavit filed by the power of attorney on behalf of the plaintiff. Against that, the plaintiff has filed this revision under Article 227 of the Constitution of India.

    5. The contention raised by the learned counsel for the petitioner against the order of the trial Judge is that admittedly the power of attorney agent, Ramalingam is the brother of the plaintiff and even as per the contention in the written statement, the defendants have admitted that it was the said Ramalingam, who has set up the plaintiff to file the suit and therefore, the said Ramalingam is the proper person to give evidence about the oral agreement entered between the plaintiff and defendants on 20.04.1994.

    6. On the other hand, learned counsel appearing for the respondent would contend that when the power was given several years after the agreement alleged to have been executed between the plaintiff and the defendants, the power of attorney agent is not expected to speak about the agreement. He would rely upon the latest judgment of the Supreme Court rendered in Janki Vashdeo Bhojwani and another vs. Indusland Bank Ltd., and others (AIR 2005 SC 439), wherein the Supreme Court in similar circumstances has held that a person, who got power much after the transaction, cannot be expected to depose on behalf of the principal since it was a personal knowledge of the principal. He would also rely upon the judgment of the Patna High Court rendered in Rajmuni Devi vs. Smt.Shyama Devi and others (AIR 2007 Patna 142) wherein the judgment of the Supreme Court in AIR 2005 SC 439 (cited supra) was referred.

    7. Order III Rule 2 of the Code of Civil Procedure authorises a recognised power of attorney holder to appear in a case and act on behalf of the original person. The said provision also contemplates that any person who has connection with trade or business or commercial transaction, can also appear and give evidence, if so expressly authorised. Order III Rules 1 and 2 of the Code of Civil Procedure state as follows:

    "Order 3: Recognised Agents and Pleaders:

    1. Appearances, etc., may be in person, by recognised agent or by pleader - Any appearance, application or act in or to any Court, required or authorised by law to be made or done by a party in such Court may, except where otherwise expressly provided by any law for the time being in force, be made or done by the party in person, or by his recognised agent, or by a pleader appearing, applying or acting, as the case may be, on his behalf;

    Provided that any such appearance shall, if the Court so directs, be made by the party in person.

    2.Recognised agents - The recognised agents of parties by whom such appearances, applications and acts may be made or done are -

    (a) persons holding powers of attorney, authorising them to make and do such appearances, applications and acts on behalf of such parties;

    (b) persons carrying on trade or business for and in the names of parties not resident within the local limits of the jurisdiction of the Court within which limits the appearance, application or act is made or done, in matters connected with such trade or business only, where no other agent is expressly authorised to make and do such appearances, applications and acts."

    8. It was while construing the said provision of the Code of Civil Procedure authorising an agent to represent a party, the Supreme Court has held that empowerment of the agent to do "an act" would not include deposing in place and instead of the principal. The Supreme Court has held that in cases where the evidence is to be given based on the personal knowledge of the principal such agent authorised cannot be permitted to give evidence. The Supreme Court has further held that in cases where the power of attorney came into existence, later cannot be expected to speak about the previous conduct. That was a case wherein evidence was given by the agent in respect of an independent source of purchase of a property, and the Supreme Court has held that the fact as to whether the amount of purchase had come from independent income of the party is the personal knowledge of the party and that cannot be deposed by a power agent. In that view of the matter, the term "act" was construed by the Supreme Court as follows:

    "12.In the context of the directions given by this Court, shifting the burden of proving on 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 the 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 III, Rules 1 and 2, CPC, empowers the holder of power of attorney to "act" on behalf of the principal. In our view the word "acts" employed in Order III, Rules 1 and 2, CPC, confines only in respect of "act" 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 to power of attorney, he may depose for the principal in respect of such acts but he cannot depose for the principal for him. Similarly, he cannot depose for the principal in respect of the matter which only the principal can have a personal knowledge and in respect of which the principal is entitled to be cross-examined."

    9. The Supreme Court has also considered the judgment of the Rajasthan High Court in Shambhu Dutt Shastri vs. State of Rajasthan (AIR 1998 Rajasthan 185), wherein it was held that the word "act" under Order III Rule 2, CPC does not include the act of power of attorney holder to appear as witness on behalf of the party. It was further held that the power of attorney holder can appear only as a witness in his personal capacity and whatever knowledge he has about the case, he can state orally and he cannot appear as witness on behalf of the party in the capacity of that party. It was further observed that even if the plaintiff is not able to appear before the Court, the plaintiff is not left in the lurch. There is a provision for appointment of commissioner for recording evidence under CPC.

    10. Therefore, as per the judgment of the Supreme Court and also the construction of the provision of Order III Rule 1 and 2 of CPC, it is very clear that the power agent of the plaintiff, though he being her brother, cannot be expected to speak about the oral agreement stated to have been entered between the plaintiff and the defendants on 20.04.1994. Further, the person who has been appointed as power agent in the year 2003 cannot be expected to know the normal course of business which is stated to have happened in the year 1994.

    11. In view of the said categorical legal position and also on the factual situation, I do not see any irregularity or illegality in the order impugned. Accordingly, the revision petition fails and the same is dismissed. No costs. Consequently, connected miscellaneous petition is closed.

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    Comments

    Mrs.Sakunthala v. Anandarajan
    (Nov 5, 2007)