IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.P.BALACHANDRAN FRIDAY, THE 28TH NOVEMBER 2008 / 7TH AGRAHAYANA 1930 WP(C).No. 15233 of 2008(L) -------------------------------------------- IA 435/08 IN OS.406/2003 of PRL.SUB COURT, TRIVANDRUM .................... PETITIONER(S): M/S.B.S.SOFTWARE SERVICE GROUP (P) LTD. HAVING ITS REGD. OFFICE AT 521.524/NILA TECHNOPARK CAMPUS, THIRUVANANTHAPURAM, REP. BY ITS POWER OF ATTORNEY HOLDER SOMY CHACKO, AGED 30 YEARS, W/O.BOBY J.MATHEW, LEGAL EXECUTIVE. BY ADV. SRI.NAIR AJAY KRISHNAN SRI.R.T.PRADEEP RESPONDENTS: 1. SYAMA PRASAD.P.G., AGED 24 YEARS, S/O.GOPINATHAN NAIR.P.S., CHUTTUPADUKARA, EDAPALLY P.O., ERNAKULAM-682 024. 2. GOPINATHAN NAIR.P.S., AGED 63, S/O.SANKARA MENON OF DO. DO. 3. SANTHA KUMARI.S., AGED 55 YEARS, D/O.ACHUTHAN NAIR, DO. DO. THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 28/11/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: K.P. Balachandran, J. -------------------------- W.P.(C)No.15233 of 2008 L -------------------------- JUDGMENT Despite notice having been issued through counsel appearing in the court below for respondents 1 to 3 as notice could not be served on them in person, they have not entered appearance. 2. Heard counsel for the petitioner. 3. The prayer in this writ petition is to set aside Exhibit P3 order passed by the Sub Judge, Thiruvananthapuram on I.A.No.435/08 (Exhibit P2) in O.S.No.406/03 filed by the petitioner/plaintiff seeking leave for the petitioner to appear and act on behalf of the plaintiff company, which is a private limited company. Petitioner had produced a certified copy of the power of attorney as well and has stated in the affidavit itself that the original has been produced in O.S.No.91/04 on the file of the same court. The court below, vide Exhibit P3 order impugned, has refused to grant leave sought for and dismissed the petition in the WPC 15233/08 2 light of the decision of the Apex Court in Janki Vashdeo Bhojwani v. Indusind Bank Ltd. (AIR 2005 SC 439). 4. In the instant case, what the petitioner has sought for by filing I.A.No.435/08 (Exhibit P2) is to permit her to appear and act on behalf of the plaintiff company and not for leave to tender evidence on all matters, on which the plaintiff company wants to let in evidence. Obviously, the decision of the Apex Court is only to the effect that a power of attorney cannot depose in the place of and instead of the principal, but that she can depose for the principal in respect of such acts, of which she has got personal knowledge though not on matters on which the principal alone can have personal knowledge and on which the principal is entitled to be cross-examined. The petitioner, no doubt, is entitled to depose on behalf of the plaintiff company in view of the power of attorney executed in her favour. But, all the same, her WPC 15233/08 3 evidence can only be in respect of the matters within her personal knowledge and which has come to her knowledge from the files she dealt with. However, the instant case is not one where, the respondents can cross-examine the principal itself, as the principal is a private limited company. In the circumstances, the order impugned deserves to be set aside. In the result, allowing this writ petition, I set aside Exhibit P3 order passed by the court below and allow the petitioner to plead and act on behalf of the plaintiff company. 28th November, 2008 (K.P.Balachandran, Judge) tkv