[ Usha Ranganathan v. N. K. V. Krishnan & Anr., AIR
2009 Madras 178]
The respondents are defendants, they were represented by
one Mr. C. Ramesh, who was conducting their case on their behalf, as their
power of attorney. The respondents filed application stating that the Power of
Attorney Mr. C. Ramesh suddenly left them, which necessitated to cancel the
power of attorney given to him and on the same day they executed Power of
Attorney deed in favour of one Mr. D. Nagarajan and hence he may be recognised
as power of attorney holder for the defendants and be permitted to give
evidence and prosecute the above case on the behalf of defendants by
substituting his name in the place of Mr. C. Ramesh. The said petition was
resisted by filing the counter application by the respondent/plaintiff. The
learned District Munsif allowed the application.
The petitioner contended that the prayer in the application
contains a request for examination of power of attorney in place of the
defendants, which is not recognised by law and the application ought to be
dismissed.
The Court while dealing with Order III Rules 1 and 2 of CPC
explained the scope of the phrase ‘to act’ and held that the word ‘act’ would
not include adducing oral evidence on behalf of his principal for the acts
done by the principal and not by him and that he cannot depose for the
principal in respect of the matter which only the principal can have a
personal knowledge.
Order III, Rules 1 and 2 CPC, empowers the holder of power
of attorney to ‘act’ on behalf of the principal. 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
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.
Thus the new power of attorney holder Mr. D. Nagarajan can
conduct the case on behalf of the respondents/defendants except giving oral
evidence on their behalf.
