A power-of-attorney holder may testify as a witness, but not substitute for the principal.

The petitioner, the original plaintiff in Special Civil Suit No. 57 of 2008, challenged an order of the Principal Senior Civil Judge, Gondal, concerning the affidavit in lieu of examination-in-chief filed by his power-of-attorney holder, Dipakkumar Shantilal Khachariya.

The trial court had discarded the affidavit on the ground that the power-of-attorney holder could not depose in place of the plaintiff.

The petitioner submitted that Khachariya had personal knowledge of the transaction as its mediator and should be examined as a witness; the plaintiff had also filed his own affidavit of examination-in-chief.

The respondents opposed permitting Khachariya to depose in the plaintiff’s place, noting that the plaintiff had filed his own affidavit.

Whether a power-of-attorney holder may depose in place of the original plaintiff

Whether the original plaintiff may examine the power-of-attorney holder as a witness

The Court applied the distinction between a power-of-attorney holder purporting to testify in place of the principal and that person giving evidence as a witness in their own capacity.

A power-of-attorney holder may not depose in place of the original plaintiff; however, the original plaintiff may examine the holder as a witness.

The judgment cited no statute or precedent.

The Court accepted that Khachariya could not give evidence as a substitute for the plaintiff merely by virtue of holding a power of attorney.

However, the petitioner’s request was to examine Khachariya as a witness, and the respondents did not dispute that the original plaintiff could do so.

The Court therefore distinguished the impermissible substitution of the plaintiff from the permissible examination of Khachariya as a witness.

The petition was disposed of, notice discharged, and no order as to costs was made.