IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD FRIDAY, THE TENTH DAY OF DECEMBER TWO THOUSAND AND TEN PRESENT HON’BLE SRI JUSTICE G. BHAVANI PRASAD CIVIL REVISION PETITION No.6102 OF 2009 Between: Mereddy Satytavathi & another ..... Petitioners And Mereddy Narsamma …Respondent The Court made the following: HON’BLE SRI JUSTICE G. BHAVANI PRASAD CIVIL REVISION PETITION No.6102 OF 2009 ORDER: Heard Sri J. Suresh Babu, learned counsel for the revision petitioners. 2. The Civil Revision Petition is directed against the order in I.A.No.989 of 2009 in O.S.No.8 of 2007, on the file of the Senior Civil Judge’s Court, Nalgonda, dated 02.12.2009. 3. The respondent herein filed the suit claiming that she is the sole legal heir of Mereddy Vasudeva Reddy and sought for a consequential declaration and perpetual injunction. She filed I.A.No.904 of 2008 requesting for permission to her second son Mereddy Sudhakar Reddy to represent her as the General Power of Attorney holder, which was resisted by the revision petitioners herein. The trial Court passed an order on 19.11.2008, with reference to the decision reported in KANAKAPUDI BHARATHY, GUDIVADA AND ANOTHER VS. AUTHORITY UNDER SECTION 50 OF A.P.S.E. ACT-CUM-LABOUR OFFICER, MACHILIPATNAM AND ANOTHER[1], in which it was held that a Power of Attorney holder of a party can appear only as a witness in his personal capacity to speak about the facts which are within his personal knowledge about the case, but he cannot appear as a witness on behalf of the party in the capacity of that party, dismissing the said petition. After the trial Court, thus, held that the General Power of Attorney holder cannot be permitted to proceed as a party to the suit, the plaintiff examined herself in chief, but failed to appear for cross-examination and her evidence was eschewed on a memo filed by the plaintiff. Then the chief examination affidavit of Mereddy Sudhakar Reddy styling him as P.W.2 was filed stating that he is the son and General Power of Attorney holder of the plaintiff and he reproduced the plaintiff’s claims and produced documents through that affidavit to be marked on behalf of the plaintiff. The revision petitioners objected to the person being, thus, examined as P.W.2 and marking the documents and filed I.A.No.989 of 2009 contending that P.W.2, being neither the executant nor the custodian of the documents, cannot mark them as exhibits and his evidence cannot be considered. The plaintiff resisted the petition contending that P.W.2 giving evidence as a witness for the plaintiff is not prohibited in law and the plaintiff is at liberty to prove her case through her own evidence or the evidence of her witnesses without examining herself. 4. On such rival contentions, the trial Court passed the impugned order noting that the chief examination affidavit of P.W.2 never stated that he is giving evidence in his capacity as a General Power of Attorney holder and as P.W.2 and the plaintiff, his mother, are living together, he can be treated to be in the custody of the documents along with the plaintiff. Hence, the trial Court opined that the evidence of P.W.2 can be treated as an evidence of a witness on behalf of the plaintiff and dismissed the petition. 5. The revision petitioners contend herein that the proposed witness, P.W.2, cannot be permitted to depose as a plaintiff, except for speaking about the facts within his knowledge. More so, in the light of the orders in I.A.No.904 of 2008, the attempt to revive the evidence of the plaintiff as P.W.1 through the examination of P.W.2 cannot be sustained and mere living together cannot enable P.W.2 to speak to all facts spoken to by P.W.1. The revision petitioners, therefore, desired the impugned order to be reversed. 6. The respondent did not enter appearance before this Court though notices were served on the respondent including in C.R.P.M.P.No.6156 of 2010. 7. The point for consideration is whether the impugned order suffers from any illegality or perversity? 8. The relationship between the plaintiff and the proposed witness is not in dispute and the plaintiff’s claim in the suit is about being the sole legal heir of her another deceased son Mereddy Vasudeva Reddy. The plaintiff is claimed to be aged about 84 years as of now, suffering from old age ailments including defective eyesight and hearing. Obviously, it was for that reason that notwithstanding the filing of an affidavit in lieu of her chief examination before the trial Court, she was not tendered for cross-examination. It was on the plaintiff giving up her own evidence as P.W.1, that the affidavit in lieu of the chief examination of P.W.2, her second son, had been filed and the affidavit narrates the claims of the plaintiff in the suit and requested for grant of reliefs to the plaintiff as prayed for and also referred to various documents. Subsequently, on 11.11.2009, the witness was examined before the Court in continuance of the chief examination and Exs.A-1 to A-10 were marked. The copy of the said deposition does not show any objection on behalf of the revision petitioners/defendants to the marking of documents at that stage. It was subsequently that I.A.No.989 of 2009 was filed after the matter was posted for cross-examination by the defendants by the trial Court. 9. Though it is true that the chief examination affidavit of P.W.2 is a faithful repetition of all the claims of the plaintiff in the suit, his evidence can be considered by the trial Court only to the extent of the events or matters or documents of which he can claim or has personal knowledge. The same test can equally apply to the documents marked by him. As held in KANAKAPUDI BHARATHY’s Case (Supra 1), a witness can speak about facts which are within his personal knowledge about the cause and in his personal capacity. To what extent the evidence of P.W.2, in his personal capacity, can be stated to be within his personal knowledge with reference to the events or matters or documents spoken to by him is a question to be gone into by the trial Court and decided at the time of the determination of the suit on merits in accordance with law and it needs no repetition that mere oral evidence of a witness or marking of documents cannot be equated to proof of all the facts stated or documents marked. In the impugned order, the trial Court rightly stated that the chief examination affidavit of P.W.2 is not based on the General Power of Attorney executed by the plaintiff in favour of P.W.2 which was refused to be acted upon in I.A.No.904 of 2008. The trial Court cannot be considered to have gone wrong when it is stated that there is a possibility of P.W.2 claiming to be in custody of the documents along with the plaintiff with whom he is living together. Whether he can claim such custody and, therefore, the right to prove the documents is a question to be gone into and decided by the trial Court finally in its judgment in the suit and any tentative prima facie expression of opinion by the trial Court for the purposes of this interlocutory application is not conclusive of the matter. Subject to such caveat, the revision petitioners cannot, therefore, object to the examination of P.W.2 as a witness and cannot seek his exclusion from the trial and rejection of his evidence even at its inception. Therefore, leaving open the question of proof of the claims of P.W.2 or the documents produced by him to be decided during the final determination of the suit, the impugned order cannot be interfered with at this stage as it is neither unreasonable nor perverse. The Civil Revision Petition has to, therefore, fail. 10. Accordingly, the Civil Revision Petition is disposed of, but in the circumstances without costs, subject to the observations made above, which shall be kept in view by the trial Court during the further proceedings and the final determination. _____________________ G. BHAVANI PRASAD, J Date: 10th December, 2010 KL HON’BLE SRI JUSTICE G. BHAVANI PRASAD CIVIL REVISION PETITION No.6102 OF 2009 December 10, 2010. KL [1] 1999 (3) ALD 420