Legal Maxim 'Qui facit per alium, facit per se' is the substratum of law relating to agency and power of attorney, which means "He who acts through another does the act himself." The same principle is expounded in section 2 of The Power of Attorney Act, 1982.
Due to busy schedule, or inability as a result of sickness, old
age, or staying abroad, it becomes more necessary for a person or principal to
depend on others for getting his things done. Owing to this reason, the power
of attorney is now playing vital role.
What is a power-of-attorney ?
A power-of-attorney is a written contract establishing a
relationship between a principal and a special kind of agent, allowing that agent to act
on the principal’s behalf.
Wharton has defined power of
attorney as “a writing given and made by one person authorizing another, who,
in such case is called the attorney of the person (or donee of the power),
appointing him to do any lawful act in the stead of that person, as to receive
rent, debt to make appearance and application in court, before an officer of
registration and the like. It may be either general or special i.e. to do all
acts or to do some particular act”.
Role Of Power Of Attorney Holder To Give Evidence Or Deposition By Power Of Attorney Holder On Behalf
Of The Principal In Civil Cases - The Principles Formulated In Landmark
Judgments :-
Order 3, Rules 1 and 2 CPC, empowers the holder
of power of attorney to "act" on behalf of the principal.
Order 3 Rule 1 of The Civil Procedure Code runs as under
Appearances, etc., may be In person, by recognized agent or by pleader.- Any appearance, application or act in or to any court, required or authorized by law to be made or done by a party in such court, may, except where otherwise expressly provided by any law for the time being in force, be made or done by the party in person, or by his recognized agent, or by a pleader appearing, applying or acting, as the case may be, on his behalf:
Provided that any such appearance shall, if the court so directs,
be made by the party in person.
Order 3 Rule 2 of The Civil Procedure Code runs
as under
Recognized agents.- The recognized
agents of parties by whom such appearance, applications and acts may be made or
done are –
(a) persons holding powers of attorney, authorizing
them to make and do such appearances, applications and acts on behalf of such
parties;
(b) persons carrying on trade or business for and in the names of
parties not resident ‘ within the local limits of the jurisdiction of the court
within which limits the appearance, application or act is made or done, in
matters connected with such trade or business only, where no other agent is
expressly authorized to make and do such appearances, applications and acts
While deposition of evidence is required to be given by the witness itself, given the fact that evidence and knowledge of facts is a facet personal to the individual, in certain circumstances the law allows deposition of evidence by the witness through a person authorized in this regard. This, however, is not a general rule but a rule of exception wherein a power of attorney holder is allowed to depose before a court in proceedings required to be attended by the witness. Being a deviation from the norm, naturally different rules of appreciating such evidence are required to be observed.
The Hon'ble Bombay High Court in the case of Mamatadevi Prafulla kumar Bhansali Vs. Pushpadevi Kailashkumar Agrawal and another 2005 (2) MhLj 1003 has held that if the power of attorney has personal knowledge about the transaction, then he can depose as a witness.
The Hon'ble Supreme Court in the case of Janki Vashdeo
Bashdeo Bhojwani Vs. Industrial Bank Ltd., [(2005) 2 SCC 217 =AIR 2005 SC 439
=2005 (3) CTC 128 (SC)], has held as follows
“ Order 3, Rules 1 and 2 CPC, empowers the holder of power of attorney to "act" on behalf of the principal. In our view the word "acts" employed in Order III, Rules 1 and 2 CPC, confines only 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 which only the principal can have a personal knowledge and in respect of which the principal is entitled to be cross-examined.”
“ In the case of Shambhu Dutt Shastri v. State of Rajasthan, 1986 2 WLN
713 (Raj) it was held that a
general power of attorney holder can appear, plead and act on behalf of the
party but he cannot become a witness on behalf of the party. He can only appear
in his own capacity. No one can delegate the power to appear in witness box on
behalf of himself. To appear in a witness box is altogether a different act. A
general power of attorney holder cannot be allowed to appear as a witness on
behalf of the plaintiff in the capacity of the plaintiff.”
“ The aforesaid judgment was quoted with the approval in the case of Ram Prasad v. Hari Narain – AIR 1998 Raj 185. It was held that the word "acts" used in Rule 2 of Order III of the 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 be 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 the CPC. ….”
“ We hold that the view taken by the Rajasthan High Court in the case of Shambhu Dutt Shastri followed and reiterated in the case of Ramprasad is the correct view.”
In R.Arjunan v. Arunachala Gounder reported in 2007 (5) CTC 133 = 2006 (4) LW 520, it was held that in respect of acts committed with the personal knowledge, Power of Attorney cannot speak on behalf of the Principal. Therefore, I opined that it is not permissible to permit the Power of Attorney to represent the Principal to appear and adduce evidence, in respect of acts, which the Principal had personal knowledge of the same
In the case of Man Kaur Vs. Hartar Singh Sangha (2010) 10 SCC 512), the Hon'ble Supreme
Court has summarized the position as to who should give evidence in
regard to matters involving personal knowledge as follows:
(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 authorized 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 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.
S. Kesari Hanuman Goud vs Anjum Jehan &
Ors reported in 2013 (12) SCC 64, the Supreme Court held as follows:
It is a settled legal proposition that the power of attorney holder cannot depose in place of the principal. Provisions of Order III, Rules 1 and 2 CPC empower the holder of the power of attorney to “act” on behalf of the principal. The word “acts” employed therein is confined only to “acts” done by the power-of-attorney holder, in exercise of the power granted to him by virtue of 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 preferred any “acts” in pursuance of the power of attorney, he may depose for the principal in respect of such acts, but he cannot depose for the principal for acts done by the principal, and not by him. Similarly, he cannot depose for the principal in respect of a matter, as regards which, only the principal can have personal knowledge and in respect of which, the principal is entitled to be cross-examined. (See: Vidhyadhar v. Manikrao & Anr., AIR 1999 SC 1441;Janki Vashdeo Bhojwani v. Indusind Bank Ltd., (2005) 2 SCC 217; M/S Shankar Finance and Investment v. State of A.P & Ors., AIR 2009 SC 422; and Man Kaur v. Hartar Singh Sangha, (2010) 10 SCC 512).
Similarly in Narasimha vs.
S.P.Sridhar, ILR 2014 Kar. 84 considered similar provisions
and observed thus:
" Parties to a suit or
proceeding are permitted to give evidence within the limits prescribed by
Section 5 of the Indian Evidence Act, 1872. A Power-of-Attorney holder of a
party can be examined as a witness like any other witness, if he is competent
in law to testify to the existence or non-existence of any fact in issue
in any suit or proceeding or of such other facts as are declared to be relevant
under the provisions of the Evidence Act, if such facts are within his
personal knowledge, but he cannot appear as a witness in the capacity of that
party i.e., himself as the plaintiff or the defendant. "
When and to what extent a Power- of-Attorney
holder could give evidence is explained by the Supreme Court in MAN
KAUR vs. HARTAR SINGH SANGHA (2010) 10 SCC 512).
" Rules 1 and 2 of Order III
of the Code of Civil Procedure are subject to the provisions of
the Advocates Act, 1961 and in particular Sections.32 & 33. Hence, a
Power-of-Attorney holder, who is not an Advocate, cannot be placed on the same
footing as an Advocate. A non-advocate cannot be permitted to address the court
on behalf of a party on the strength of the Power-of-Attorney. For that
purpose, the party has to seek the leave of the Court. Grant of such leave is governed
by Section 32 of the Advocates Act, 1961."
Thus the power-of-attorney holder practically steps into the
shoes of the principal to perform all the acts on his behalf except right
to plead unless permitted by the court, and to depose about facts which
are in exclusive knowledge of the principal. The principal is required to be
very cautious while delegating such power, else result would be
counterproductive.
