This petition under Article 227 of Constitution of India assails the order passed on 24.09.2013 by the Court of Civil Judge Class II, Gohad, Distt. Bhind in case no. 5A/2012 whereby an application under Section 151 of CPC preferred by the plaintiff requesting for permitting the husband of plaintiff who is also her power of attorney holder to depose on behalf of the plaintiff who is a ‘Parda Nasheen Lady’, has been rejected on the basis of the Apex Court decision in case of Janki Vishdeo Bhojwani v. Indusind Bank Ltd. reported in (2005) 2 SCC 217.
The learned counsel for the petitioner is heard on the question of admission.
The learned counsel for the petitioner contends that Order 3 Rule 2 CPC provides for recognized agents of parties by whom appearance, application and acts can be made including the power of attorney holder and therefore the impugned order is not sustainable in law.
Since the sole reason for rejecting the application under Section 151 (Supra) of the plaintiff/petitioner herein is the law laid down by the Apex Court in Janki Vishdeo Bhojwani (Supra), it would be profitable to refer to the said decision.
In the said decision Janki Vishdeo Bhojwani (Supra), the Apex Court had laid down that matters relating to personal knowledge of the plaintiff cannot be deposed for the plaintiff by the power of attorney holder of the plaintiff. It is only those acts performed by the power of attorney holder in pursuance to the power bestowed upon him by the principal can be the matters in regard to which deposition can be made by the power of attorney holder for the principal (plaintiff herein).
Thus the view taken by the Court below cannot be termed to be erroneous as the deposition of the plaintiff would be in regard to various matters including matters which are in the personal knowledge of the plaintiff and which cannot be deposed about by the power of attorney holder.
Pertinently, the decision of the Apex Court in the case of Janki Vishdeo Bhojwani (Supra) received the stamp of approval by the Apex Court given in case of Man Kaur (Dead) By Lrs. v. Hartar Singh Sangha reported in (2010) 10 SCC 512 where the following principles of law are laid down by the Apex Court to be followed as regards the issue that in what circumstances the power of attorney holder can give evidence on behalf of the party involving personal knowledge:
a. An attorney-holder who has signed the plaint and instituted the suit, but has no personal knowledge of the transaction can only give formal evidence about the validity of power of attorney and the filing of the suit.
b. If the attorney-holder has done any act or handled any transactions, in pursuance of the power of attorney granted by the principal, he may be examined as a witness to prove those acts or transactions. If the attorney-holder along has personal knowledge of such acts and transactions and not the principal, the attorney-holder shall be examined, if those acts and transactions have to be proved.
c. The attorney-holder cannot depose or given evidence in place of his principle for the acts done by the principal or transactions or dealings of the principal, of which principal alone has personal knowledge.
d. Where the principal at no point of time had personally handled or dealt with or participated in the transaction and has no personal knowledge of the transaction, and where the entire transaction has been handled by an attorney-holder, necessarily the attorney-holder alone can given evidence in regard to the transaction. This frequently happened in case of principals carrying on business through authorized managers/attorney-holders or persons residing abroad managing their affairs through their attorney-holders.
e. Where the entire transaction has been conducted through a particular attorney-holder, the principal has to examine that attorney-holder to prove the transaction, and not a different or subsequent attorney-holder.
f. Where different attorney-holders had dealt with the matter at different stages of the transactions, if evidence has to be led as to what transpired at those different stages, all the attorney-holders will have to be examined.
g. Where the law requires or contemplated the plaintiff or other party to a proceeding, to establish or prove something with reference to his “state of mind” or “conduct”, normally the person concerned alone has to give evidence and not an attorney-holder. A landlord who seeks eviction of his tenant, on the ground of his “bona fide” need and a purchaser seeking specific performance who has to show his “readiness and willingness” fall under this category. There is however a recognized exception to this requirement. Where all the affairs of the party are completely managed, transacted and looked after by an attorney (who may happened to be a close family member), it may be possible to accept the evidence of such attorney even with reference to bona fides “readiness and willingness”. Examples of such attorney-holders are a husband/wife exclusively managing the affairs of his/her spouse, a son/daughter exclusively managing the affairs of an old and infirm parent, a father/mother exclusively managing the affairs of a son/daughter living abroad.
In view of the above, it is evident that the power of attorney holder is authorized to depose on behalf of the plaintiff only in regard to those matters which do not relates to personal knowledge of the plaintiff.
The aspect as to whether the permission being sought by the plaintiff herein for allowing her power of attorney holder(her husband) to depose on her behalf is in regard to matters which do not relates to her personal knowledge alone, has not been examined by the Court below.
The Trial Court thus has failed to exercise the jurisdiction vested in it under the law in regard to the above said aspects and therefore this Court allows this petition under Article 227 of Constitution of India. The impugned order dated 24.09.2013 passed by Civil Judge Class II, Distt. Bhind so far as it relates to rejection of application under Section 151 of CPC of the plaintiff, is set aside.
The Trial Court is hereby directed to reconsider the application u/S 151 of CPC filed by the plaintiff by taking into account the law laid down by the Apex Court in case of Man Kaur (Supra) as expeditiously as possible.