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1993 DIGILAW 182 (CAL)

Jatindra Nath Ghosh v. Niranjan Chakraborty

1993-04-08

A.K.Bhattacharjee, Bhagabati Prasad Banerjee

body1993
JUDGMENT 1. THIS is an application for stay of the operation of the order dated 7th September, 1992 passed by Padma Khastagir, J. filed by the appellant. By the said order dated 7th September, 1992 Padma Khastgir, J. did not pass any order on the application for vacating an order passed by Ajit Kumar Sengupta, J. on 15. 7. 92. The said order passed by Ajit Kumar Sengupta, J. was affirmed on 17. 7. 92. The said application for vacating the order was not entertained solely on the ground that the said application had been, taken out in the name of the Constituent Attorney and that the applicant-petitioner had no authority to take out the said application for and on behalf of the appellant Jatindra Nath Ghosh and others. Before us also an application for stay of the operation of the order of the learned trial Judge had been filed by Sri Shansanka Sekhar Pan, the Constituent Attorney of the appellant petitioners. Shansanka Sekhar Pan was not a party and that such petition was filed in the name of the said Constituent Attorney allegedly on behalf of the appellant, Jatindra Nath Ghosh and 5 others. Before us a preliminary objection had been taken by Mr. Jayanta Mitra, Learned counsel appearing on behalf of the respondent opposite party that Shasanka Sekhar Pan, the Constituent Attorney of the appellant had no locus standi to file the appeal and the application and he was not entitled to execute the Vakalatnama on behalf of the appellant and as such, the application for appeal is to be dismissed in limine. 2. BEFORE dealing with the preliminary objection it is necessary to set out some of the facts which are relevant for the purpose. A Title Suit No. 40 of 1987 was filed by Niranjan Chakraborty, plaintiff-opposite party against the appellant Jatindra Nath Ghosh in the court of 2nd Musif, Baruipur "for a decree of the plaintiffs tenancy right under the predecessor in interest of the proforma defendants in terms of the lease agreement of the suit land and thereafter under the proforma defendant" as also "for a permanent injunction restraining the principal defendants from forcibly ousting the plaintiffs possession from the suit land. " The suit land is a piece and parcel of 26 decimals of Danga Land of mouza Barhansfartabad, Police station Sonarpur, District 24 Parganas (Sourth). " The suit land is a piece and parcel of 26 decimals of Danga Land of mouza Barhansfartabad, Police station Sonarpur, District 24 Parganas (Sourth). It was further stated in the said suit that the plaintiff-opposite party took settlement of the said land for the purpose of cultivation. On or about 20th March, 1987 immediately after filing the suit this plaintiff-opposite party made an application under Order 39, rules (1) and (2) read with Section 151 of the Code of Civil Procedure praying, inter alia, for an interim order of injunction against the appellant pending of the said suit and that in spite of the best efforts made by the plaintiff-opposite party the said injunction could not be heard and disposed of by the learned munsif which was still pending before the court below. It was alleged that the plaintiff-opposite party was an old man of 75 years and was residing with his wife aged about 65 years at his premises and taking advantage of the old age and infirmity of the plaintiff-opposite party and his wife, some local people, viz. Sri Shasanka Shekhar Pan, who is stated to be the constituent Attorney of the appellant and his associates, forcibly encroached upon the said suit land with the help of their muscle-men and decided some of the properties belonging to the plaintiff-opposite party. The incident took place on 9th June, 1991, it was further stated that Shri Shanka Shekhar Pan allegedly on the basis of general power of attorney given by the appellant was only to conduct the said litigation in the Baruipur Court. The said incident was reported to the local Police Station on June 9, 1991 and ultimately, on an application, under Section 144 of the Criminal Procedure Code, the learned Executive magistrate, 2nd Court, Alipur passed an order in M. P. Case. 1393 of 1991 on 29th June, 1991 directing the Officer- in- Charge, Sonarpur Police station to enquire and report by 3rd August, 1991 and to see that no breach of peace takes places or any wrongful action is done by the opposite party therein in the said suit land. 3. 1393 of 1991 on 29th June, 1991 directing the Officer- in- Charge, Sonarpur Police station to enquire and report by 3rd August, 1991 and to see that no breach of peace takes places or any wrongful action is done by the opposite party therein in the said suit land. 3. THE plaintiff-opposite party also filed another application under Section 107 of the Criminal Procedure Code against the said Sri Shasaanka shekhar Pan in the Criminal Court in the context of the fact that the injunction matter could not be heard and disposed of inspite of and during the pendency of so many criminal cases. The plaintiff opposite party filed an application for transfer of the said suit under Section 24 of the Code of civil Procedure read with Clause 13 of the Lettors Patent from the Court of the learned Munsif, 2nd Court - Baruipur, 24-Paraganas (South) to this court and on the said application filed by the plaintiff opposite party this court was pleased to issue a rule and pass an interim order of injunction restraining the appellants, their agents and servants from dealing with and/or disturbing and/or dispossessing the plaintiff-opposite party from the said suit land and also an order of injunction restraining the respondents, their agents and servants from making any construction therein. The said rule with interim order was issued on 15th July, 1992 and the returnable date, namely, 17th July, 1992 the rule to show cause why the suit should not be transferred under Clause 13 of the Letters pa tent and the rule was made absolute by Ajit Kumar Sengupta, J. On 15th July, 1992 none appears to oppose the said application and the ad interim order of injunction passed on 15th July, 1992 was directed to continue till the disposal of the suit. By the order 17th July, 1992 A. K. Sengupta, J. passed in Matter No. 370 of 1992 granted liberty to the appellants make an application for vacating the interim order. Pursuant to the said leave granted by A. K. Sengupta, J. on 17th Jury, 1992 an application was filed not by the appellant but the said application was made by the said Shasnka Shekhar Pan, the Constituent Attorney of the appellant. The said application was not entertained by Padma Khastgir, J. on the ground that the Constituent Attorney had no locus standi to file such application. 4. The said application was not entertained by Padma Khastgir, J. on the ground that the Constituent Attorney had no locus standi to file such application. 4. BEING aggrieved by and dissatisfied with the said order passed by Padma Khastgir, J. dated 7.9.92 an appeal was filed by the said constituent Attorney and the application was also filed by the said Constituent attorney. The said appeal is pending before this Court and that interim order of injunction that was passed only to protect the right, title and interest of the parties in tact. 5. IN law a Constituent Attorney can sign a petition or an affidavit for and on behalf of any of the parties. Constituent Attorney can act only as an agent. An agent under the Powers of Attorney Act, 1882, can only institute and conduct proceeding before a Court of law for and on behalf of the donor of the power of attorney. Power-of-attorney is an authority whereby one is set in turn, stead or place of other to act for hire. A donee of a power of attorney, is entitled to act and sign an behalf of the donor. An agent can only act in the name of the principal but agent cannot act in his own name as if he is the Principal. Being an agent Shaasanka Shekhar Pan cannot have any right to file an application to his own name keeping the donor in the dark. The petition can be signed by a Constituent Attorney and through the pen of Constituent Attorney and the Constituent Attorney through his pen can sign the name of the principal. But the Constituent-Attorney cannot have any right under the and/or under the rules of procedure to maintain any appeal or application in his own name. Before us an application for stay was filed in the name of the Constituent attorney. Constituent Attorney can act only in the name of the person for whose behalf such authority was held. Through power of attorney one can act for person who was granted such power of attorney. But on the strength of the Power of Attorney the holder of the Power of Attorney cannot act in his own name. 6. Constituent Attorney can act only in the name of the person for whose behalf such authority was held. Through power of attorney one can act for person who was granted such power of attorney. But on the strength of the Power of Attorney the holder of the Power of Attorney cannot act in his own name. 6. WE are of the view that the application for stay was made not by the appellant but by the Constituent Attorney, Shasanka Sekhar Pan in his own name and this is not permissible under the rules of procedures. Accordingly, this application is not maintainable in law and is dismissed. There will be no order as to costs. All parties shall act on the operative part of the judgement on the usual undertaking. Application rejected.