Madras High Court
M.Mariyammal vs A.Antony Stellamary on 8 April, 2022
C.R.P.(MD).No.199 of 2018
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 08.04.2022
CORAM
THE HONOURABLE MR.JUSTICE R.VIJAYAKUMAR, J
C.R.P.(MD).No.199 of 2018
and CMP(MD).No.862 of 2018
1.M.Mariyammal
2.Chinnappan
3.Antony ....Petitioners/Petitioners/Defendants
Vs.
1.A.Antony Stellamary
2.A.Antony Yesu
3.A.Antony Gurus ....Respondents/Respondents/Plaintiffs
(Respondents 1 to 3 represented through their power agent
C.Kulanthai Samy)
PRAYER: Civil Revision Case is filed under Article 227 of Constitution
of India to set aside the fair and decreetal order dated 20.11.2017 made in
I.A.No.612 of 2017 in O.S.No.100 of 2010 on the file of the Additional
District Munsif, Srivilliputhur and allow the above Civil Revision.
For Petitioners : Mr.R.Ragavendran
For Respondents : No appearance
1/5
https://www.mhc.tn.gov.in/judis
C.R.P.(MD).No.199 of 2018
ORDER
The defendants in the suit are the revision petitioners herein.
2. The plaintiffs have filed O.S.No.100 of 2010 before the
Additional District Munsif Court, Srivilliputhur for declaration of title,
recovery of possession and for permanent injunction. The suit was
originally filed by the plaintiffs through their power agent Kulanthai Samy.
Pending suit, the said power agent was examined in chief. Before he could
be cross-examined, the defendants filed I.A.No.612 of 2017 with a prayer
to direct the plaintiffs to appear in person for cross examination. The said
application was rejected by the trial Court. As against the same, the
defendants have filed the present Civil Revision Petition.
3.According to the learned counsel for the petitioners, in Janaki
Vashdeo Bhojwani's case, the Hon'ble Supreme Court has held that the
power of attorney cannot depose for the principal in respect of the matter
which only the principal can have a personal knowledge and and in respect
of which the principal is entitled to be cross examined. The learned
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C.R.P.(MD).No.199 of 2018
counsel has also relied upon another judgment of the Hon'ble Supreme
Court in Civil Appeal Nos.2869 to 2870 of 2010 ( Mohinder Kaur Vs.Sant
Paul Singh), in which, he has relied upon paragraph No.17 to the effect
that where a party to the suit does not appear in the witness box and states
his own case on oath and does not offer himself to be cross examined by
the other side, a presumption would arise that the case set up by him is not
correct. Hence, according to the learned counsel for the petitioners, unless
the plaintiffs appear before the Court for cross examination, it cannot be
considered to be legal evidence and an adverse inference has to be drawn.
4. I have heard the submission made on behalf of the petitioners.
5.In Paragraph No.12 of the order of the trial Court has held that
the power agent is a close relative of the plaintiffs and he is having
personal knowledge about the suit and hence, he is entitled to depose on
behalf of the plaintiffs.
6.It is settled position of law that the power agent could depose
only with respect to the facts which are within his personal knowledge and
https://www.mhc.tn.gov.in/judis
C.R.P.(MD).No.199 of 2018
he is not entitled to depose with regard to the facts which are within the
personal knowledge of the principal. In the present case, if the power agent
deposes anything which is not within his personal knowledge and the same
can be objected to by the defendants and pray the Court to eschew the
same.
7.With the above observation, this Civil Revision Petition is
dismissed. No costs. Consequently, connected miscellaneous petition is
closed.
08.04.2022
Index : Yes/No
Internet : Yes/No
msa
To
1.The Additional District Munsif, Srivilliputhur
2.The Record Keeper,
Vernacular Section,
Madurai Bench of Madras High Court,
Madurai.
https://www.mhc.tn.gov.in/judis
C.R.P.(MD).No.199 of 2018
R.VIJAYAKUMAR, J
msa
C.R.P.(MD).No.199 of 2018
and CMP(MD).No.862 of 2018
08.04.2022
https://www.mhc.tn.gov.in/judis
