Madan Singh Raghuvanshi vs Reena Raghuvanshi
2022 Latest Caselaw 6774 MP

                              1
         IN THE HIGH COURT OF MADHYA PRADESH
                      AT GWALIOR
                             BEFORE
                HON'BLE SMT. JUSTICE SUNITA YADAV
                       ON THE 6th OF MAY, 2022

                MISC. PETITION No. 4692 of 2019

       Between:-
       MADAN SINGH RAGHUVANSHI S/O SHRI
       KALYAN SINGH RAGHUVANSHI , AGED
       ABOUT     45     YEARS, OCCUPATION:
       AGRICULTURE    VILLAGE    BAGRODA
       PRESENT R/O NEAR KABRISTAN LINK
       ROAD SIRONJ (MADHYA PRADESH)

                                                       .....PETITIONER
       (BY SHRI S.K. SHRIVASTAVA, ADVOCATE)

       AND

1.     REENA RAGHUVANSHI W/O SHRI BADRI
       RAGHUVANSHI D/O SHRI RAGHUNATH
       SINGH RAGHUVANSHI , AGED ABOUT 34
       YE A R S , STATION ROAD GANJBASODA
       (MADHYA PRADESH)

2.     RAGHUNATH SINGH S/O SHRI KAMMOD
       SINGH RAGHUVANSHI , AGED ABOUT 55
       YEARS, TYONDA ROAD BASODA (MADHYA
       PRADESH)

3.     NAVED ALI S/O SHRI VILAYAT ALI , AGED
       ABOUT 40 YEARS, MOHALLA TALAIYA
       SIRONJ (MADHYA PRADESH)

                                                     .....RESPONDENTS
       (BY SHRI P.S RAGHUVANSHI, ADVOCATE)



                               ORDER

The present petition is filed assailing the order dated 29.08.2019 passed in Civil Suit No.RCS A/100003/2016 by First Additional District

Judge, Sironj District Vidisha.

The facts in brief to decide the petition are that the plaintiff has filed a civil suit for declaration, possession and for grant of mesne profit on the ground that the plaintiff is the owner of the property which he has purchased vide registered sale-deed dated 23.02.2000 from Ravi Rai S/o Shri Babulal and Suraj Bai W/o Shri Babulal. It was further pleaded by the plaintiff that defendant No.2 namely Raghunath Singh is father of the plaintiff and he wanted to start a business of selling and purchasing of tractor and therefor he took the property in question. It was further pleaded that defendant No.1/petitioner used to work with defendant No.2 and since he was not having any place to reside in Sironj, therefore,

defendant No.2 allowed defendant No.1 to reside on the first floor and consequently since February 2011 defendant No.1 along with his family is residing in the disputed property. It was further pleaded that since August 2013, defendant No.2 has closed down the business of selling and purchasing of tractor. However, despite of closing down the business, the defendant No.1/petitioner is not vacating the property, therefore, the instant civil suit has been filed.

Defendant No.1/petitioner filed its written statement and denied the plaint pleadings. It is the case of the defendant No.1/petitioner that defendant No.2 had assured the present petitioner that the property is of defendant No.2. Defendant No.2 is having partnership of 50 % of the petitioner and accordingly one current account was opened which was operated by the present petitioner/defendant No.2. It was further pleaded by defendant that from the year 2009-2012, defendant No.1 and 2 earned

profit of Rs.1,55,05,000/- in which the share of petitioner/defendant No.1 comes to Rs.77,75,000/-. It is the case of the defendant No.1 that in his share Rs.98,17,000/- was to be recovered from defendant No.2 and since defendant No.2 did not return the same, he allowed the defendant No.1/petitioner to retain the property in dispute. Thereafter, daughter and father are in collusion with each other and filed the instant suit.

During pendency of the suit, the plaintiff executed registered power of attorney in favour of her brother Girraj Raghuvanshi and thereafter, the affidavit of examination-in-chief under Order 18 Rule 4 of CPC was filed by power of attorney holder Girraj Raghuvanshi. Upon which the petitioner herein defendant No.1 filed an application under Section 151 of CPC challenging that the power of attorney holder cannot depose on behalf of the plaintiff. The application was dismissed by the impugned order. Learned counsel for the petitioner argued that the impugned order passed by Court below is manifest, illegal, arbitrary and contrary to the provisions of law, fact and evidence and therefore, deserves to be set aside.

On the other hand, learned counsel for the respondents argued that the order impugned is in accordance with settled principle of law and the power of attorney holder can depose on behalf of the plaintiff in the present suit.

The Hon'ble Apex Court in the case of Janki Vashdeo Bhojwani

and another Vs. Indusind Bank Ltd. and others reported in 2005 (1) MPLJ 421 has held that :

"13. Order 3 Rules 1 and 2 CPC empower the holder of power of attorney to "act" on behalf of the principal. In our view the word "acts" employed in Order 3 Rules 1 and 2 CPC confines only to 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 of 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 of which only the principal can have a personal knowledge and in respect of which the principal is entitled to be cross-examined."

The Hob'ble Apex Court in the case of Sarita Sharma Vs. State of M.P. and others reported in 2019 (4) MPLJ 461, has held that the attorney holder cannot depose or give evidence in place of his principal for the acts done by the principal or transactions or dealings of the principal, of which principal alone has personal knowledge. An attorney holder can only give formal evidence who has no personal knowledge of transaction.

In the case of Man Kaur (Dead) By LRs Vs. Hartar Singh Sangha reported in (2010) 10 SCC 512 the Hon'ble Apex Court has held that the power of attorney holder who has no personal knowledge cannot be examined in place of plaintiff.

Learned counsel for the respondents relied upon the judgment in the case of Mohd. Mansur Ali Khan Vs. Saifia Education Society, Bhopal and others reported in 2006 (6) MPLJ 428. However in this case also it is held that holder of power of attorney act on behalf of the principal . However, such act cannot be interpreted to mean that he could also depose regarding the acts done by the principal himself.

In the light of the facts of the case, it is apparent that the power of attorney holder has not done any act in pursuance to the power of attorney in his favour. Therefore, in view of the principle laid down by the Hon'ble Apex Court as above, he cannot depose on behalf of the plaintiff for the acts regarding which only the plaintiff is having knowledge and therefore, the learned trial Court cannot permit the power of attorney holder to depose on behalf of its principal for the facts which was done prior to his appointment. However, the power of attorney holder can only give formal evidence in support of the plaintiff.

In view of the above, the impugned order is found to be perverse and against the settled principle of law. Accordingly, the impugned order dated 29.08.2019 is hereby quashed and the application filed under Section 151 of CPC (Annexure P-5) is allowed.

With aforesaid observations, this petition is disposed of.

(SUNITA YADAV) JUDGE bj/-

BARKHA SHARMA 2022.05.1 1 10:13:14 +05'30'