Research question 1: whether the holder of power of attorney can depose?

Chellammal v. Krishnaveni Ammal 2006(2) L.W.713

to state that the Power of Attorney agent cannot depose for the Landlord/Principal in respect
of matters, of which the principal can have personal knowledge and in respect of which
principal is open to be cross-examined. In the said case it is seen that the Agent is a total alien
and therefore cannot have personal knowledge of the circumstances of the case which would
empower Agent to depose. In the instant case as stated above the Agent is a person who has
personal knowledge and he could therefore very well depose.
Facts: The main thing that had weighed with the learned Appellate Authority to revise the
finding of the Rent Controller was that if really the landlord used to come to Madras very
often to get expert medical treatment, he ought to have gone into the box to prove the same.
The above observation of the learned Appellate Authority is wrong. The learned Rent
Controller was satisfied with the evidence of P.W.1, who was a competent witness. Nothing
was brought out in his cross-examination to discredit his evidence. It is not necessary that the
landlord alone should go into the box and depose about the bona fide requirement. Even his
own agent or anybody on his behalf whose evidence is cogent, convincing and trustworthy
can be taken on its face value either for upholding or for rejecting the case of the landlord.
Under the circumstances, the failure on the part of the landlord to go into the box and
examine himself cannot be taken as a ground for not upholding his claim for bona fide
requirement of the demised premises. Apart from the same, the other reasons given by the
learned Appellate Authority to reverse the order of the learned Rent Controller are not at all
convincing and satisfactory. Therefore, this Court has to set aside the order of the Appellate
Authority and restore that of the Rent Controller."

Chellammal v. Krishnaveni Ammal (2006) 3 MLJ 360

The aforesaid judgment was quoted with approval in the case of Ram Prasad v. Hari Narain
[AIR 1998 Raj 185: (1998) 3 Cur CC 183] . It was held that the word “acts” used in Rule 2 of
Order 3 CPC does not include the act of power-of-attorney holder to appear as a witness on
behalf of a party. Power-of-attorney holder of a party can appear only as a witness in his
personal capacity and whatever knowledge he has about the case he can state on oath but he
cannot appear as a witness on behalf of the party in the capacity of that party. If the plaintiff
is unable to appear in the court, a commission for recording his evidence may be issued under
the relevant provisions of CPC.
in Janki Vashdeo Bhojwani [Janki Vashdeo Bhojwani v. IndusInd Bank Ltd., (2005) 2 SCC
217]. This case relates to powers of power-of-attorney holder under the Code of Civil
Procedure, 1908 and it was concluded that a complaint by a power-of-attorney holder on
behalf of original plaintiff is maintainable provided he has personal knowledge of the
transaction in question. This Court further held as under: (SCC p. 222, paras 12-13)

“12. In the context of the directions given by this Court, shifting the burden of proving on to
the appellants that they have a share in the property, it was obligatory on the appellants to
have entered the box and discharged the burden by themselves. The question whether the
appellants have any independent source of income and have contributed towards the purchase
of the property from their own independent income can be only answered by the appellants
themselves and not by a mere holder of power of attorney from them. The power-of-attorney
holder does not have personal knowledge of the matter of the appellants and therefore he can
neither depose on his personal knowledge nor can he be cross-examined on those facts which
are to the personal knowledge of the principal.

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.”
A.C. Narayanan v. State of Maharashtra, (2014) 11 SCC 790 : (2014) 4 SCC (Civ) 343 : 2013
SCC OnLine SC 839 at page 808
33. While holding that there is no serious conflict between the decisions in M.M.T.C.
[M.M.T.C. Ltd. v. Medchl Chemicals and Pharma (P) Ltd., (2002) 1 SCC 234 : 2002 SCC
(Cri) 121] and Janki Vashdeo Bhojwani [Janki Vashdeo Bhojwani v. IndusInd Bank Ltd.,
(2005) 2 SCC 217] , we clarify the position and answer the questions in the following
manner:
33.1. Filing of complaint petition under Section 138 of the NI Act through power of attorney
is perfectly legal and competent.
33.2. The power-of-attorney holder can depose and verify on oath before the court in order to
prove the contents of the complaint. However, the power-of-attorney holder must have
witnessed the transaction as an agent of the payee/holder in due course or possess due
knowledge regarding the said transactions.
33.3. It is required by the complainant to make specific assertion as to the knowledge of the
power-of-attorney holder in the said transaction explicitly in the complaint and the power-of-
attorney holder who has no knowledge regarding the transactions cannot be examined as a
witness in the case.
33.4. In the light of Section 145 of the NI Act, it is open to the Magistrate to rely upon the
verification in the form of affidavit filed by the complainant in support of the complaint
under Section 138 of the NI Act and the Magistrate is neither mandatorily obliged to call
upon the complainant to remain present before the Court, nor to examine the complainant of
his witness upon oath for taking the decision whether or not to issue process on the complaint
under Section 138 of the NI Act.
33.5. The functions under the general power of attorney cannot be delegated to another
person without specific clause permitting the same in the power of attorney. Nevertheless, the
general power of attorney itself can be cancelled and be given to another person.

This extract is taken from A.C. Narayanan v. State of Maharashtra, (2015) 12 SCC 203 :
(2016) 1 SCC (Cri) 67 : 2015 SCC OnLine SC 77 at page 211
13. The first question relating to the eligibility of power-of-attorney holder to sign and file a
complaint petition on behalf of the complainants and whether eligibility criteria prescribed by
Section 142(a) of the NI Act is satisfied, if the complaint petition itself is filed in the name of
the payee or the holder in due course of the cheque, was answered by a larger Bench in the
affirmative by its judgment in A.C. Narayanan v. State of Maharashtra [A.C. Narayanan v.
State of Maharashtra, (2014) 11 SCC 790 : (2014) 4 SCC (Civ) 343] with observation, which
reads as follows: (SCC p. 806, para 26)

“26. As noticed hereinabove, though Janki Vashdeo Bhojwani [Janki Vashdeo Bhojwani v.
Indusind Bank Ltd., (2005) 2 SCC 217] relates to powers of power-of-attorney holder under
CPC but it was concluded therein that a plaint by a power-of-attorney holder on behalf of the
original plaintiff is maintainable provided he has personal knowledge of the transaction in
question. In a way, it is an exception to a well-settled position that criminal law can be put in
motion by anyone (vide Vishwa Mitter [Vishwa Mitter v. O.P. Poddar, (1983) 4 SCC 701 :
1984 SCC (Cri) 29] ) and under the statute, one stranger to transaction in question, namely,
legal heir, etc. can also carry forward the pending criminal complaint or initiate the criminal
action if the original complainant dies (vide Ashwin Nanubhai Vyas v. State of Maharashtra
[Ashwin Nanubhai Vyas v. State of Maharashtra, AIR 1967 SC 983 : 1967 Cri LJ 943 :
(1967) 1 SCR 807] . Keeping in mind various situations like inability as a result of sickness,
old age or death or staying abroad of the payee or holder in due course to appear and depose
before the court in order to prove the complaint, it is permissible for the power-of-attorney
holder or for the legal representative(s) to file a complaint and/or continue with the pending
criminal complaint for and on behalf of payee or holder in due course. However, it is
expected that such power-of-attorney holder or legal representative(s) should have knowledge
about the transaction in question so as to able to bring on record the truth of the
grievance/offence, otherwise, no criminal justice could be achieved in case payee or holder in
due course, is unable to sign, appear or depose as complainant due to abovequoted reasons.
Keeping these aspects in mind, in M.M.T.C. [M.M.T.C. Ltd. v. Medchl Chemicals and
Pharma (P) Ltd., (2002) 1 SCC 234 : 2002 SCC (Cri) 121] , this Court had taken the view
that if complaint is filed for and on behalf of payee or holder in due course, that is good
enough compliance with Section 142 of the NI Act.”
Mathew Philips (deceased) v. S. Rm. S. Narayana Chettiar reported in 2006(4)CTC 139.
The eviction petition has been grounded on the footing of requirement of the Landlord and
that of his family members to occupy the demised premises as could be seen from paragraph
15 of the Judgment at Page 144 of the report. Therefore an Agent who could himself be a
family member could very well speak about the requirements of the Landlord especially
when he has personal knowledge though he is incidentally a Power of Attorney Agent. From
Paragraph 22 of the Judgment it is clear that the Agent has participated in matters relating to
the tenancy and has interacted with the tenant. Therefore he should necessarily be a person
who has personal knowledge of both the need of the Landlord and that of his family
members. He is competent to depose unless as rightly held held by the Learned Judge Mr.
Justice M. Jaichandran, there is such a restriction in the Power document itself restricting the
Power of Attorney Agent that he cannot put forth the plea of requirement of the premises for
the bonafide use of the Landlord.

In the case of Man Kaur v. Hartar Singh Sangha (2010) 10 SCC 512 the Hon'ble Supreme
Court was pleased to hold as under:-

RCA No. 92/11 7/17 "18. We may now summarise for convenience, the position as to who
should give evidence in regard to matters involving personal knowledge:

(a) An attorney-holder who has signed the plaint and instituted the suit, but has no personal
knowledge of the transaction can only give formal evidence about the validity of the power of
attorney and the filing of the suit.
(b) If the attorney-holder has done any act or handled any transactions, in pursuance of the
power of attorney granted by the principal, he may be examined as a witness to prove those
acts or transactions. If the attorney-holder alone has personal knowledge of such acts and
transactions and not the principal, the attorney-holder shall be examined, if those acts and
transactions have to be proved.
(c) 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.
(d) Where the principal at no point of time had personally handled or dealt with or
participated in the transaction and has no personal knowledge of the transaction, and where
the entire transaction has been handled by an attorney-holder, necessarily the attorney-holder
alone can give evidence in regard to the transaction. This frequently happens in case of
principals carrying on business through authorised managers/attorney-holders or persons
residing abroad managing their affairs through their attorney-holders.
(e) Where the entire transaction has been conducted through a particular attorney-holder, the
principal has to examine that attorney- holder to prove the transaction, and not a different or
subsequent attorney-holder.
(f) Where different attorney-holders had dealt with the matter at different stages of the
transaction, if evidence has to be led as to RCA No. 92/11 8/17 what transpired at those
different stages, all the attorney-holders will have to be examined.
(g) Where the law requires or contemplated the plaintiff or other party to a proceeding, to
establish or prove something with reference to his "state of mind" or "conduct", normally the
person concerned alone has to give evidence and not an attorney-holder. A landlord who
seeks eviction of his tenant, on the ground of his "bona fide" need and a purchaser seeking
specific performance who has to show his "readiness and willingness" fall under this
category. There is however a recognised exception to this requirement. Where all the affairs
of a party are completely managed, transacted and looked after by an attorney (who may
happen to be a close family member), it may be possible to accept the evidence of such
attorney even with reference to bona fides or "readiness and willingness".