Rajeshwari Devi v. Anil Kumar — 1989 DIGILAW 17 (PAT)

JUDGMENT S. B. Sinha, J. In this civil revision application the petitioners have questioned the legality of the order dated 8.6.88 passed by Sri.R. N. Sahay, Sub-ordinate Judge 5th Court, Muzaffarpur, in Title Suit No 77 of 1983 whereby and whereunder he rejected the application filed by the petitioner, as contained in Annexure-I to this Civil Revision application. 2. The facts of his case are not much in dispute. The opp. party no.1 filed a suit against the petitioners and the opp. party no.2 praying for a decree for specific performance of contract. 3. In the aforementioned suit one Binda Prasad filed a Vakalatnama purporting to act as constituted attorney of the petitioner no. 1. In the said suit the said Binda Prasad had all along been taking steps as constituted attorney of the petitioners. On or about 2.5.1988 the defendant-petitioner no. 1 filed an application before the learned Court below alongwith a written statement filed by her praying therein that the previous written statement filed on their behalf by the aforementioned Binda Prasad be rejected as also the VakaJatnama dated l8.12.1983 executed by the said Binda Prasad be cancelled and the fresh written statement filed by her be accepted. 4. In the said application, which is contained in annexure 2 to the writ application, it was contended on behalf of defendant-petitioner no.1 that the said Binda Prasad had no right or authority to file written statement or any Vaka – latnama on her behalf. 5. By reason of the impugned order the learned court below, on the basis of the documents available on record, rejected the said application. 6. Mr. Ashok Priyadarshi, learned counsel appearing on behalf of petitioners, submitted that in the facts and circumstances of the case the learned court below has failed to exercise his jurisdiction in passing the impugned order. According to the learned counsel, the court below has not taken into consideration the effect of the order of injunction passed in Title Suit no. 44 of 1980 nor did it consider the assertions of the petitioners that the defendant petitioner no.1 did not execute any power of attorney in favour of the aforementioned Binda Prasad. According to the learned counsel, the court below has not taken into consideration the effect of the order of injunction passed in Title Suit no. 44 of 1980 nor did it consider the assertions of the petitioners that the defendant petitioner no.1 did not execute any power of attorney in favour of the aforementioned Binda Prasad. According to the learned counsel appearing on behalf of the petitioners as the said Binda Prasad acted without any authority, whatsoever, all steps taken by him in the said suit must be held to be wholly illegal and without jurisdiction and in that view of the matter the learned court below ought to have accepted the written statement filed by the petitioner on rejecting the one filed by Shri Binda Prasad. The learned counsel in this connection has relied upon a decision of the Supreme Court reported in A.I.R. 1963 SC page 1203. In this connection the learned counsel further submitted that a statement has been made in this civil revision application that the defendant no. 1 is a Pardanashin lady. 7. Mr. S. Sanyal, learned counsel appearing on behalf of Opp. party no. 1, on the other hand, submitted that the, finding of the court below is a finding of fact that Binda Prasad had acted as a constituted attorney of the petitioner no. 1, and as such the written statement filed by him would be deemed to be a written statement filed by the petitioners and in that view of the matter they had absolutely no right to replace the written statement which is already on record by another written statement. The learned counsel in this connection has relied on a decision in a case of Kallampan Narainappa vs. K. Surya Narain and others reported in 1950 Madras page 46. In the instant case the core question that was raised before the learned court below was as to whether the aforementioned Binda Prasad was legally authorised by petitioner no. 1 to act on her behalf or not. The other question that fell for consideration of the learned court below was as to whether the said Binda Prasad, even if it be accepted to be the constituted attorney of petitioner no. 1, acted bonafide or not. 1 to act on her behalf or not. The other question that fell for consideration of the learned court below was as to whether the said Binda Prasad, even if it be accepted to be the constituted attorney of petitioner no. 1, acted bonafide or not. The learned court below in passing the impugned order merely look into consideration the facts that all along Binda Prasad had been taking steps on behalf of the petitioners. The learned court below was also of the opinion that the petitioner had filed the said application, as contained in annexure 2 to the Civil Revision application, only for the purpose of depriving the plaintiff opposite party no. 2 from the benefits of various admissions made by the aforementioned Binda Prasad. In my view, taking into consideration the facts and circumstances of the case the learned Court below ought not to have rejected the application filed by the petitioner without giving her opportunity to produce evidence in support of her plea. 8. This aspect of the matter, namely, whether Binda Prasad had been acting as constituted attorney of the petitioner or not would have been better appreciated by the learned Court below at the time of final hearing of the suit, when all the parties would have led their evidence on all questions including the questions as formulated hereinbefore. There can be no doubt that if Binda Prasad had been acting without any authority, any step taken by him would be without jurisdiction and consequently any order passed on that basis would also be nullity. In this view of the matter, in my opinion, in the instant case the question of substitution of any written statement by a party to the suit by another written statement, without taking recourse to the provision of Order 6 Rule 7 and Order 6 Rule 17 of the C.P.C. has been held by the Madras High Court in the aforementioned case does not arise. If the learned Court below upon consideration of the evidence adduced on behalf of the parties ultimately comes to the conclusion that Binda Prasad acted without any authority whatsoever the alleged admissions made in the written statement by him will loose all its value. If the learned Court below upon consideration of the evidence adduced on behalf of the parties ultimately comes to the conclusion that Binda Prasad acted without any authority whatsoever the alleged admissions made in the written statement by him will loose all its value. In this view of the matter taking into consideration and the facts and circumstances of the case and in the interest of justice the written statement filed by the petitioners should be accepted and they should be permitted to defend the case through the lawyer(s) of their choice. However the learned Court below shall also consider the issue as to whether the aforementioned Binda Prasad was the constituted attorney of the petitioner no. 1 or not and whether he had acted bonafide or not in the suit itself along with the other issues. Before parting with this case I may observe that by this order it is not meant that the written statement which has already been 51ed through Sri Binda Prasad would be expunged from record. The same shall continue to be a part of the record and the value thereof will be decided, as indicated hereinbefore, at the trial of the case itself alongwith other issues. In view of the facts and circumstances of the case the learned Court below shall make endeavour to dispose of the suit as early as possible and preferably within three months from the date of the receipt of this order. 9. In the result, this application is allowed and the impugned order dated 8.6.88 is set aside. However, in the facts and circumstances of the case, there shall be no order as to cost. Application allowed.