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Kolli Venkata Mohana Rao & Another v/s Joseph Christian Krishnaraj (died) & Others


Company & Directors' Information:- JOSEPH AND CO PVT LTD [Active] CIN = U01211KL1954PTC000507

Company & Directors' Information:- E R JOSEPH & CO PVT LTD [Strike Off] CIN = U28920WB1955PTC022404

Company & Directors' Information:- RAO & CO PVT LTD [Strike Off] CIN = U74999TN1948PTC002316

    C.R.P. No. 1911 of 2019 & C.M.P. Nos. 12593 & 26102 of 2019

    Decided On, 31 January 2020

    At, High Court of Judicature at Madras

    By, THE HONOURABLE MR. JUSTICE V. BHARATHIDASAN

    For the Petitioners: M. Prabhakar, Advocate. For the Respondents: R1, S. Sivakumar R4, K. Surendar, Advocates, R2 & R3, No appearance.



Judgment Text


(Prayer: Petition filed under Section 227 of Constitution of India to set aside the order and decreetal order passed by the learned Additional District Judge, Chenglepet, Kancheepuram District in I.A.No.319 of 2018 in O.S.No.65 of 2012 dated 15.02.2019 pending on the file of the Additional District Judge, Kancheepuram, by allowing the above Civil Revision Petition.)

1. This Petition has been filed by the petitioners Petition filed under Section 227 of Constitution of India to set aside the fair and decreetal order passed by the learned Additional District Judge, Chenglepet, Kancheepuram District in I.A.No.319 of 2018 in O.S.No.65 of 2012 dated 15.02.2019 pending on the file of the Additional District Judge, Kancheepuram, by allowing the above Civil Revision Petition.

2. This Civil Revision has been filed against the allowing of application filed by the 1st & 2nd respondent to permit them to appoint lawful attorney to represent the suit and also to give evidence on behalf of the plaintiffs.

3.The Respondents 1 & 2 have filed the suit in O.S.No.65 of 2012, to declare that the Power of Attorney dated 18.08.2000, executed by one Andrew Xavier Packiam in favour of the 1st defendant as null and void and not binding on the plaintiffs and to declare that the sale deed dated 15.09.2000 executed by the 1st defendant in favour of the 2nd defendant as null and void and not binding on the plaintiffs and to declare the sale deeds dated 09.06.2000 executed by the 2nd defendant in favour of the defendants 3 & 4 as null and void and not binding on the plaintiffs and for consequential mandatory injunction to direct the defendants to vacate and handover the possession of the schedule mentioned property originally belonged to Andrew Xavier Packiam, who is a bachelor and lived with the plaintiffs and expired intestate on 22.08.1978, leaving behind his sister Maria Christina as his sole surviving legal heir.

4. The 1st plaintiff is the husband of Maria Christina, the sole legal representative of Andrew Xavier Packiam and the plaintiffs 2 & 3 are her daughters. After the death of Andrew Xavier Packiam, Maria Christina by virtue of being the only legal heir, succeeded to all the properties left behind by her brother Andrew Xavier Packiam.

5. Recently, the plaintiffs came to know that the 1st defendant had forged a Power of Attorney, said to have executed by the deceased Andrew Xavier Packiam on 15.09.2000 and by virtue of the said forged Power of Attorney, he has sold the same in favour of the 2nd defendant by a registered sale deed. Thereafter, the 2nd defendant sold the property in favour of the 3rd & 4th defendants on 09.06.2003.

6. According to the plaintiffs, the said Andrew Xavier Packiam died on 22.08.1978, after his death, the plaintiffs approached this Court by way of filing O.P.No.269 of 2004 for the grant of Letters of Administration and the said O.P.No.269 of 2004 was allowed on 27.09.2004. Thereafter, they came to know about the alleged transaction and filed the present suit in O.S.No.65 of 2012, pending suit, the 1st plaintiff died. The 3rd plaintiff who is suffering with acute cancer and the 2nd plaintiff due to old age are not in a position to attend court regularly to prosecute the matter. Hence, they have appointed one Sheik Naizer Mohammed as their Power of Attorney and filed a petition in I.A.No.319 of 2018, under Order III Rule 2 of C.P.C. to permit their Power of Attorney to represent and depose evidence on their behalf.

7. The said I.A.No.319 of 2018 in O.S.No.65 of 2012 has been opposed by the petitioners / defendants on the ground that the Power of Attorney cannot give evidence on the matter, who does not have any personal knowledge about the transaction. In the above said circumstances, the above petition I.A.No.319 of 2018 was allowed by the Additional District Judge, Chengalpattu, on 15.02.2019, aggrieved by the said order, the present revision has been filed.

8. I have heard the learned counsel appearing for the petitioners and for the respondents and perused the records.

9. Mr.K.Surendar, learned counsel appearing for the 4th respondent relying upon the judgment of this Court reported in 2009 (5) CTC 620, in C.R.P. PD (MD) No.272 of 2008 (S.Natarajan Vs. V.Thirumavalavan), contended that the Power of Attorney holder has not deposed in respect of the matter where the principal alone has knowledge, hence the Power of Attorney cannot depose on behalf of the petitioners as he does not have any personal knowledge about the transaction, the relevant paragraph reads as follows:

6. It was held by the Hon'ble Supreme Court and as followed by the Hon'ble High Court, the power of attorney holder cannot depose for principal, in respect of the matters of which only the principal can have personal knowledge and over which he is liable to be cross-examined. It is also seen that the word “acts” as mentioned in Order 3, Rules 1 & 2 of the Civil Procedure Code would not include deposing in place and instead of the principal for the acts done by the principal. However, for the acts done by the power of attorney holder as a power agent, he can very well depose. Further, the power of attorney holder can conduct the case on behalf of the principal. Hence, this Court is of the opinion that the power attorney cannot give evidence over the matter which is exclusively to the personal knowledge of the principal.

10. The learned counsel for the petitioners would contend that in the instant case, the Power of Attorney appointed by the plaintiffs will not have any personal knowledge of transactions which took place in the year 2000 and hence he cannot adduce evidence on behalf of the plaintiffs. The learned Additional District Judge, without considering the same has allowed the I.A.No.319 of 2018 in O.S.No.65 of 2012, accordingly, prays for setting aside of the order.

11.The suit in O.S.No.65 of 2015 has been filed for declaration, declaring that the Power of Attorney dated 15.09.2000, executed by one Andrew Xavier Packiam in favour of the 1st defendant as null, void and not binding on the plaintiffs and to declare the sale deed dated 15.09.2000 executed by the 1st defendant in favour of the second defendant as null and void and not binding on the plaintiffs and to declare the sale deeds dated 09.06.2000 executed by the 2nd defendant in favour of the defendants 3 & 4 as null and void and not binding on the plaintiffs and for consequential mandatory injunction to direct the defendants to vacate and handover the possession of the schedule mentioned property originally belonged to one Andrew Xavier Packiam.

12. The said Andrew Xavier Packiam died as early as on 22.08.1978 and the plaintiffs are claiming to be the only surviving legal heirs of the above deceased Andrew Xavier Packiam. The plaintiffs have also filed an O.P.No.269 of 2004, before this Court for grant of Letters of Administration, which was also allowed and Letters of Administration granted. When that being the position, now the 1st defendant said to have a forged Power of Attorney dated 15.09.2000 and sold the property. The plaintiffs who came to know about the forged Power of Attorney, which is said to have executed after 22 years of the death of Andrew Xavier Packiam and sold the property in favour of the 2nd defendant. Though the 2nd defendant sold the property in favour of 3rd and 4th defendants according to the plaintiffs, all the documents are executed by virtue of the forged Power of Attorney, hence the suit to declare that the all transactions are not binding on the plaintiffs.

13. Pending suit, the plaintiffs have filed the present petition in I.A.No.319 of 2018 on the ground that one of the plaintiffs is suffering from acute Cancer and another plaintiff is a senior citizen and are not in a position to attend the Court regularly and prays the Court to permit their Power of Attorney to represent and depose on their behalf and also represent the case hereafter. The said application was allowed by the Trial Court on 15.02.2019.

14. The contention of the learned counsel appearing for the defendants is that the Power of Attorney cannot adduce evidence on behalf of the Principal in respect of the matters which the Power of Attorney does not have knowledge and it is only in the exclusive knowledge of the Principal.

15. No doubt, the Power of Attorney can depose only to the matter which he has personal knowledge, and he cannot give evidence in respect of the matter in which only the principal has the personal knowledge. In the instant case, a suit has been filed on the ground that the power of attorney has been forged by the 1st defendant in the name of the person who is said to have died in the year 1978.

16. The plaintiffs have filed a copy of the Death Certificate, to prove the death of Andrew Xavier Packiam, which is a public document, that apart, the plaintiffs have also filed the order granting Letters of Administration in O.P. No.269 of 2004. The plaintiffs are relying upon those two documents to support their claim that, the said Andrew X

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avier Packiam, who died in the year 1978 could not have executed the said power of attorney in the year 2000. The documents relied by the plaintiffs are the public documents. That apart whether the Power of Attorney has any personal knowledge about the matter cannot be decided at this stage, and there is no bar for the Power of Attorney to conduct the case on behalf of the plaintiffs. 17. In the above circumstances, I do not find any merit in the contention raised by the petitioners. The Trial Court, after considering the entire material, has rightly allowed the application. Hence I do not find any illegality in the order passed by the Court below and I find no merit in the case. 18. In the result, this Civil Revision Petition stands dismissed. Since the matter is pending from the year 2012, the Trial Court is hereby directed to proceed with the trial and dispose of the case on or before 30.04.2020. No costs. Consequently, connected miscellaneous petition if any stands closed.
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