Telangana High Court
Smt. K. Madhumathi vs Sri K. Ramchander Rao And Another on 19 February, 2021
Bench: Challa Kodanda Ram
IN THE HIGH COURT FOR THE STATE OF TELANGANA
CIVIL REVISION PETITION No. 4339 of 2018
Between:
Smt. K. Madhumathi
... Petitioner
and
Sri K. Ramachander Rao & another
...Respondents
Date of Judgment Pronounced: 18-02-2021
Submitted for Approval:
The Hon'ble Sri Justice CHALLA KODANDA RAM
1. Whether Reporters of Local newspapers No
may be allowed to see the judgments ?
2. Whether the copies of judgment may be Yes
marked to Law Reporters/Journals
3. Whether His Lordship wish to No
see the fair copy of the Judgment ?
_____________________________
(CHALLA KODANDA RAM, J)
2
* The Hon'ble Sri Justice CHALLA KODANDA RAM
CIVIL REVISION PETITION No. 4339 OF 2018
% Dated 18.02.2021
Between:
# Smt. K. Madhumathi
... Petitioner
and
Sri K. Ramachander Rao & another
...Respondents
! Counsel for the petitioner : Sri Shyam S. Agarwal
^ Counsel for the respondent : Sri S. Praveen Goud
GIST:
HEAD NOTE:
? Cases cited:
(2005) 2 SCC 217
1986(2) WLN 7134
3
THE HON' BLE SRI JUSTICE CHALLA KODANDA RAM
C.R.P. No. 4339 of 2018
O R D E R:
This Civil Revision Petition is filed challenging the order
dated 09.07.2018 in I.A.No. 300 of 2018 in O.S.No. 1694 of 2010
passed by the learned VIII Additional Senior Civil Judge,
Rangareddy District at L.B. Nagar.
The petitioner herein is the plaintiff who filed the suit for
perpetual injunction with respect to the suit schedule property.
The I.A. was purported to be filed under Rule 32 (2) of the Civil
Rules of Practice.
The case of the petitioner is that she has been suffering from
ailments, hence, unable to prosecute the case effectively on her
own / to appear before the Court to give evidence; that as a matter
of fact, her husband is looking after the affairs of the property
since beginning and he is well-versed with the same and the legal
proceedings and in view of her inability, she had executed a deed
of General Power of Attorney in favour of her husband Sri K. Prem
Ra, S/o Sri K. Laksman authorizing him to act on her behalf and
he is the only competent person to take care of the suit. Hence,
she prayed the Court to permit the General Power of Attorney
holder to represent her and prosecute the case on her behalf. The
prayer in the petition reads as "the Court may be pleased to pass
an order permitting Sri K. Prem Raj, S/o late Sr K. Laxman, age
about 50 years, R/o 2-3-529/1/20, Bapu Nagar, Amberpet,
Hyderabad, the husband and the General Power of Attorney holder
of the petitioner / plaintiff in the suit to represent her before the
Hon'ble Court and to prosecute the case on her behalf by giving
evidence, in the interest of justice.....". The I.A. was resisted by
raising an objection that a GPA holder cannot give evidence as a
plaintiff and the ill-health claimed by the petitioner is a falsity and
that the IA was filed only to drag the suit which is of 2010. It is
contended that provisions under Rules 1 & 2 of Order III of Civil
Procedure Code, 1908 empower the holder of power of attorney to
"act" on behalf of the principal. The word "act" employed in Rules
1 & 2 confines only in respect of "acts" done by the power of
attorney holder in exercise of power granted by the instrument.
The term "act" would not include deposing in place and instead of
the principal. It is settled law that giving deposition on oath as a
power of attorney holder of a party is not a part of pleadings and
rather it is a part of procedure for proving a case by examining a
competent witness.
The learned Judge, after considering respective submissions,
making reference to the judgments of the Supreme Court in Janki
Vashdeo Bhojwani v. Industrial Bank Ltd.1 dismissed the I.A.
holding that a GPA holder is empowered to give evidence as a
witness but not as the plaintiff.
Learned counsel for the petitioner Sri Shyam S. Agarwal
contends that refusal of I.A. is contrary to law. He asserts that the
power of attorney holder was the one who has been prosecuting
the case all along and attending the affairs on behalf of the plaintiff
- wife. He pleads that the plaintiff is indisposed and is unable to
attend the Court to give evidence. Placing reliance on the judgment
of Rajasthan High Court in Shambhu Dutt Shastri v. State of
(2005) 2 SCC 217
Rajasthan2, the learned counsel contends that in the said case,
P.W.1 - power of attorney holder deposed on behalf of the plaintiff.
On the other hand, learned counsel for the respondents
submits that in view of the Supreme Court judgment, the legal
position is settled and power of attorney holder cannot be
presumed to have personal knowledge and depose as if the plaintiff
in his/her place.
Having gone through the judgment of the Rajasthan High
Court referred to by the learned counsel for the petitioner, this
Court does not find any merit in the submission made on behalf of
the petitioner as there is nothing in the said judgment supporting
the point advanced on her behalf. In para 13 of the said judgment,
it was noted that PW.1 - power of attorney holder had stated that
there was no condition that the rent would not be charged,
however, denied having personal information about the covenant.
In para 16, it was stated, the power of attorney holder has power to
act / appear on behalf of the party but clarified that he /she
cannot appear in witness box on behalf of the party. It was
further clarified that "the plaintiff has not appeared in the witness
box and the statement given by the GPA holder cannot be
substituted for the statement of the plaintiff and for this reason
also adverse inference can also be drawn against the plaintiff for
not appearing in the witness box to prove her case". The above-
quoted statement would clearly negate the submission of the
learned counsel for the petitioner that Rajasthan High Court
allowed the GPA holder to give evidence in place of the plaintiff. No
judgment is brought to the notice of this Court taking a contra
1986(2) WLN 713
view with respect to the law laid down by the Apex Court in Janki
Vashdeo Bhojwani's case. Hence, the order under Revision need
not be interfered with. However, the I.A. being to permit the
petitioner to represent the plaintiff as a General Power of Attorney
holder, it is made clear, there can be no objection to such extent.
The Civil Revision Petition is therefore, allowed in part. No
costs.
Miscellaneous petitions, if any pending, shall stand closed.
____________________________
CHALLA KODANDA RAM, J
18th February, 2021
ksld
