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The power of attorney holder cannot depose the principal for the acts done by the principal and not by him : Madhya Pradesh High Court

The Madhya Pradesh High Court in the case of Kamlesh Kushwaha vs Vibha Kumar (SECOND APPEAL No. 1342 of 2018) upheld that the power of attorney holder cannot depose the principal for the acts done by the principal and not by him.

Facts of the case : The respondent – plaintiff through her power of attorney holder filed a suit for declaration of title and permanent injunction and also for getting vacant possession by demolishing the construction made over the disputed plot against the appellant – defendant inter-alia contending that the respondent – plaintiff was the owner and title holder of the suit property. She purchased the said plot from one Manohar Lal Babbar through registered sale deed dated 30.11.1968 and she had transferred all her rights with regard to disputed plot to one Purshottam Raghuwanshi, through power of attorney dated 8.12.2011 and a copy whereof was attached with the plaint. It was also averred in the plaint that the husband of the appellant – defendant is in police service having great influence in the area and therefore, the local administration is not having courage to initiate any action against him. The husband of the appellant – defendant had put the building material on the subjective plot on 20.12.2011. The power of attorney tried to talk with the appellant – defendant then only she learnt that the appellant is having a spurious registered sale deed whereas Firoz Badami is not having any title of the subjective plot and therefore, the registered sale deed is not having any force. It was further the case of the respondent – plaintiff that the appellant-defendant had started construction of wall in between the pillars from 21.12.2011, sought relief of declaration and permanent injunction and also sought temporary injunction during the pendency of the civil suit. It was further the case of the respondent – plaintiff that the cause of action arose on 21.12.2011 when the appellant – defendant tried to encroach upon the plot of the respondent – plaintiff. The appellant – defendant filed written statement denying the averments made by the respondent – plaintiff in the plaint. The trial court dismissed the suit which was reversed by the First Appellate Court and the judgment was passsed in favor of plaintiffs.

Learned counsel for the appellant-defendant submited that  on the basis of the pleadings or the documents placed on record, no decree could have been passed unless the such documents and the pleadings are proved by reliable evidence by examining the relevant witnesses. Further submited that the documents and other papers are not admissible unless the same is proved by the concerning witnesses as per provision of the Evidence Act. The power of attorney holder was not authorized to depose the evidence in place of principal. 

The respondent / plaintiff herself had not entered into the witness box even the plaint and the verification along with the affidavit is signed by the Power of Attorney Holder not by the respondent – plaintiff. The power of attorney holder namely Purushottam Raghuwanshi (PW-1) has deposed in respect of the acts done by the principal plaintiff in her personal capacity prior to the execution of the alleged power of attorney which is barred under the law

Judgment : The court held that the parties are bound to prove those facts which they know. According to the pleadings of the plaint, the respondent-plaintiff had knowledge about the dispute as pleaded by her and she herself has not entered in witness box to prove such facts in support of her pleadings as such she have not discharged her burden to prove her case as per provision of sections 101 and 102 of the Evidence Act. 

Order 3 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 “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 to 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 in which only the principal can have personal knowledge and in respect of which the principal is entitled to be cross examined.

Having regard to the directions in the order of remand by which the 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. The appellants had not approached the Court with clean hands. From the conduct of the parties it is apparent that it was a ploy to salvage the property from sale in the execution of Decree.Purushottam Raghuwanshi (PW-1) who is power-of-attorney holder cannot depose in place of principal plaintiff. 

The second appeal was allowed and the impugned judgment and decree passed in previous Civil Appeal was set-aside.

JUDGMENT REVIEWED BY : SHUBHANGI CHAUDHARY

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