Concept of oral power of attorney does not exist; it has to be in writing only: Andhra Pradesh HC

Concept of oral power of attorney does not exist; it has to be in writing only: Andhra Pradesh HC

The High Court of Andhra Pradesh (HC) reiterated that there is nothing as oral power of attorney (POA) and it has to be in writing always

In this case, a suit for specific performance of the agreement of sale was instituted before the District Court on 12 August 2009.

Subsequently, an application was filed bearing I.A.No.147 of 2018 in O.S.No.63 of 2013 under Order 13 Rule 10 and Order 16 Rule 6 of Code of Civil Procedure (CPC), seeking to send for the original documents mentioned in the petition for comparing the signatures of the opposite party in the suit sale agreement by marking the same in the evidence to the person filing the petition. The District Court dismissed the said application.

The contention of the party who filed the petition was that the opposite party with a mala fide intention made signatures in different styles on different documents at different points in times. It was further brought to the notice that the signature of the opposite party on the petition was different.

It was averred that the opposite party has a habit to change signatures with a mala fide intention to defraud. Hence, a plea of forgery was raised and in the absence of original signatures of the opposite party, the party filing the petition could not send the original suit agreement of sale to a handwriting expert for comparison and opinion.

On behalf of the opposite party, it was stated that due to the ill-health of the lady her husband went to the office (on her behalf) with her advice and consent. It was further mentioned that the affidavit filed before the HC was signed by the husband of the opposite party.

The opposite party had no objection to the recitals in the documents and it was argued that the consent of the opposite party that her husband would sign on her behalf in her absence would amount to oral power of attorney.

Being aggrieved from the dismissal of the application by the District Court, a petition was filed before the HC. The Court relied on the judgment of the HC in Pidikiti Sasikala v. Kothamasu Lakshmi Mohan Rao @ Mohan Rao and others, 2009 (6) ALD 519, and Judgment of the Supreme Court of India (SC) in Lakshmi and another v. Chinnammal Alias Rayyammal and others, (2009) 13 Supreme Court Cases 25.

The HC quoted the judgment of the SC in Lakshmi's case, "If bringing on record a document is essential for proving the case by a party, ordinarily the same should not be refused and the Court's duty being to find out the truth."

After a close perusal of the arguments made by the parties, the HC stated, "It reveals that in the affidavits filed in the High Court of Andhra Pradesh, her husband signed her signatures as per her consent and it amounts to oral power of attorney.

In the eyes of law, there is no such oral power of attorney. It is the settled law that the power of attorney must be in writing only. If the husband of the respondent signed the affidavits on behalf of the respondent under valid General Power of Attorney, the situation may be different."

The HC rejected the argument of the opposite party that her husband was given oral POA. It was clarified by the Court that the POA must always be in writing.

It was further stated that if the husband of the opposite party had signed the affidavit filed before the HC then it would amount to the offense of perjury and it shall be punishable. It held that dismissal of the petition by the District Court was not proper in the eyes of law.