Kerala High Court
Sumitha Rahim vs Rajeev on 16 February, 2021
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE T.V.ANILKUMAR
TUESDAY, THE 16TH DAY OF FEBRUARY 2021 / 27TH MAGHA,1942
OP(C).No.1525 OF 2020
AGAINST THE ORDER IN IA NO.1/2020 IN OS 1678/2015 OF III
ADDITIONAL MUNSIFF COURT & RENT CONTROLLER, EKM
PETITIONER/PETITIONER/DEFENDANT:
SUMITHA RAHIM
AGED 43 YEARS
DAUGHTER OF ABDUL RAHIM M.A AND WIFE OF SAIJU
MOHAMMED, NOW RESIDING AT SANTHI VIEW, THEVARA,
ERNAKULAM, KOCHI - 682013.
BY ADVS.
SRI.S.VINOD BHAT
KUM.ANAGHA LAKSHMY RAMAN
RESPONDENT/RESPONDENT/PLAINTIFF:
RAJEEV
AGED 57 YEARS
S/O. SIVARAMAN, PALLATHUPADI, PALARIVATTOM,
POONITHURA VILLAGE, NOW RESIDING AT RUTH BHAVAN,
MANATHPADAM, KOONAMTHAI, EDAPPALLY P O,
KOCHI - 682024.
BY ADV. SRI.N.RATHEESH
THIS OP (CIVIL) HAVING BEEN FINALLY HEARD ON
16.02.2021, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
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Dated this the 16th day of February, 2021
J U D G M E N T
Ext.P6 order passed by the court below in
O.S.No.1678/2015 dismissing I.A.No.1/2020 filed by
the petitioner is challenged by her in this
proceedings instituted under Article 227 of the
Constitution of India.
2. The suit was filed by the respodnent for
setting aside a document before the IVth Additional
Munsiff's Court, Ernakulam. Formerly the defendant
was represented in the proceedings by a power of
attorney holder. Later, she engaged her father-in-
law as power of attorney holder and sought
permission of the court below for prosecuting the
proceedings through the power of attorney holder.
The petition was objected to by the respondent
herein and it was dismissed by Ext.P6 order. The
finding entered into by the court below in Ext.P6
O.P.(C)No.1525/2020
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order is challenged by the learned counsel for the
petitioner contending that it was absolutely within
the right and liberty of the petitioner to have
executed the document authorising the attorney to
prosecute the proceedings.
3. I heard the learned counsel appearing on
either side.
4. After hearing both sides, I am of the
opinion that there is no justification for the
court below having dismissed the application in as
much as a person is within his right and authority
to execute a power of attorney authorising anybody
whom he chooses to be fit and proper to represent
his interests. In other words, it was quite
unnecessary for the defendant to have approached
the court and sought permission.
5. Looking at the impugned order of the court
below, the view that has been taken is to the
O.P.(C)No.1525/2020
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effect the power of attorney holder cannot be
allowed to give evidence on behalf of the principal
in respect of matters of which he has no personal
knowledge at all. The legal position adverted to is
absolutely correct. But I doubt as to how that
legal position could be canvassed at a time when
permission to prosecute the proceedings is sought.
Objection to admissibility of evidence is to be
taken only at the time when the evidence is sought
to be tendered. That stage has not reached so far.
6. I am told that plaintiff has only begun to
proceed with his evidence. The petitioner's
evidence is yet to start. When petitioner's
evidence starts, it will be open to the respondent
to raise objection to the power of attorney holder
giving evidence on behalf of the petitioner,
provided the evidence being tendered relates to
matters of which he has no personal knowledge. I do
O.P.(C)No.1525/2020
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not want to express any opinion on merits of the
contentions made by parties in relation to their
case in the pleadings. The question as to whether
the power of attorney holder of the petitioner has
personal knowledge of the facts sought to be proved
is a matter of fact which cannot be prejudged now.
It suffices to say that the impugned order passed
by the court below refusing permission to prosecute
the proceedings is legally not sustainable.
In the result, petition succeeds and it is
allowed setting aside impugned Ext.P6 order. The
petitioner will prosecute the proceedings through
her power of attorney holder appointed by her. It
is made clear that it will be open to the
respondent/plaintiff to raise objections to
admissibility of evidence canvassing the principles
in Mohinder Kaur v. Sant Paul Singh (AIR 2019 SC
4780) in a situation where power of attorney holder
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seeks to depose matters which are not within his
personal knowledge. I.A.No.1/2020 is allowed. This
being an old suit of 2015, the court below is
directed to dispose of the suit within a period of
six months from the date of receipt of certified
copy of this judgment.
All pending interlocutory applications are
closed.
Sd/-
T.V.ANILKUMAR
JUDGE
ami/
O.P.(C)No.1525/2020
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APPENDIX
PETITIONER'S EXHIBITS:
EXHIBIT P1 COPY OF THE PLAINT OS NO.1678/2015 OF
MUNSIFF'S COURT, ERNAKULAM.
EXHIBIT P2 COPY OF THE WRITTEN STATEMENT IN OS
1678/2015 OF MUNSIFF'S COURT, ERNAKULAM.
EXHIBIT P3 COPY OF THE ADDITIONAL WRITTEN STATEMENT
IN OS 1678/2015 OF MUNSIFF'S COURT,
ERNAKULAM.
EXHIBIT P4 COPY OF THE PETITION I.A 1/2020 IN OS
1678/2015 OF MUNSIFF'S COURT, ERNAKULAM.
EXHIBIT P5 COPY OF THE COUNTER AFFIDAVIT IN IA
1/2020 IN OS NO.1678/2015 OF MUNSIFF'S
COURT, ERNAKULAM.
EXHIBIT P6 COPY OF THE ORDER DATED 23.09.2020 IN IA
1/2020 IN OS 1678/2015 OF MUNSIFF'S
COURT, ERNAKULAM.
