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1996 DIGILAW 99 (MAD)

Velusami Nadar v. Punitha, represented by Power Agent Subbiah Chettiar and Another

1996-01-24

RAJU

body1996
Judgment : The above revision petitions has been filed against the respective orders of the learned Subordinate Judge, Pattukkottai, dated 29. 1995 in C.M.A. Nos.7 and 9 of 1995 in almost identical circumstances and factual background. Except that the plaintiff in the two proceedings are different and the subject matter of the suit pertains to different transactions, the similarity of the fact situation as also the issues involved would justify the consideration of both these matters together. As a matter of fact, submissions before me have also been made in common. 2. Respondents in these proceedings are the plain tiffs and it appears, they have filed the suits for recovery of the sums deposited with the defendant- petitioner, which is one and the same in both the cases. The suits came to be dismissed on account of the absence of the plaintiff in the respective suit, under 0.9, Rule 9, C.P.C. But, at the same time, it is to be noticed that the father of the plaintiffs by name Subbiah Chettiar has filed the power of attorney and the same was filed even on the date when the suits were dismissed for default. Since the power was not accepted and the representation by the power of attorney was not proper, as on that date, to represent the plaintiffs, the absence of the plaintiff in each case was considered to be a lapse and default. Thereupon, applications to recognise the applicant Subbiah Chettiar as the power of attorney agent of the plaintiffs came to be filed. But, the same were also dismissed on the ground that since the suits themselves were dismissed, there was no scope for granting any permission as prayed for. It is in those circumstances, the applications for restoration of the suits also came to be dismissed on the ground that no sufficient cause has been shown. Aggrieved, the plaintiffs represented by the power of Attorney have filed appeals before the lower appellate court. The learned Subordinate Judge considered the respective claims of the parties at considerable length and by his orders under challenge has held in Paragraph 12 of the orders, which are identical, as follows: "The reasons motivated the trial court in dismissing the restoration application is not correct in law. A money suit has been dismissed for default. Both are contesting on certain grounds. A little bit liberal approach is needed in matters like this. A money suit has been dismissed for default. Both are contesting on certain grounds. A little bit liberal approach is needed in matters like this. Exercising the discretion in favour of the plaintiff and giving her a chance to agitate her claim for recovery of money does not in any way prejudice the contentions of the defendant. By technicalities alone a just and rightful claim should not be allowed to go un-noticed by the judicial eyes through evidence adduced by the parties. One such case is the case before us. There is no harm in throwing an opportunity to the plaintiff to restore her application filed through her agent and proceed with the progress of the suit with the help of her power agent. Incidentally and impliedly and by necessary implication the order refusing to recognise the power should also go. We ourselves recognised the power deed produced by the agent of the appellant while presenting the appeal and we are also of the considered view that the view taken by the Munsif as regards the power produced and the power agent’s filing of the restoration application are erroneous and in such situation closing our eyes on the refusal of the trial court to recognise the power deed produced before it would be incongruous. Therefore, it becomes necessary to recognise the power deed presented in the court below." Since the learned Subordinate Judge on the views expressed as above set aside the dismissal and restored the applications, the defendant has come up by way of the above revisions. 3. Mr.Yamunan, learned counsel for the appellant invited my attention to the various details and reasons given by the courts below and pointed out that the orders of the learned trial Judge were well merited and that though the infirmity alleged may appear to be technical, but still the same cannot be overlooked and that the lower appellate court has taken a very light view of the position, which according to the learned counsel, is wholly unwarranted under the rules of procedure provided to regulate the proceedings before courts. 4. I have carefully considered the submissions of the learned counsel for the petitioner. The plaintiffs-respondents herein have substantial rights, in that they have filed the respective suits for recovery of the amounts said to have been deposited with the defendant- petitioner. 4. I have carefully considered the submissions of the learned counsel for the petitioner. The plaintiffs-respondents herein have substantial rights, in that they have filed the respective suits for recovery of the amounts said to have been deposited with the defendant- petitioner. The father of the plaintiffs only appears to have been given the power of attorney to represent the daughters as their agent to conduct and prosecute the proceedings before court. The stage of the execution and production of the power of attorney is not prior to the institution of suits or to enable him to file the suits. It is only to prosecute the proceedings already validly instituted further and in my view, the trial court might have taken a practical view of the situation and dealt with the matter with more humane approach to ensure justice to the parties. The fact situation appears to be that even on the date when the suits were dismissed for default, the leave applications have also been filed and merely because on the date when the suits were called or prior to that leave was not granted to the power of attorney to represent the plaintiffs by recognising the power of Attorney, the suits themselves came to be dismissed for default. The lower appellate court, in my view, has taken into account all the relevant aspects and adopted the correct approach by pointing out the hyper-technical attitude adopted by the trial court in rejecting the applications as well as the suits by the respondents. The justification for setting aside the orders of the trial court is made in paragraph 12 of the orders of the lower appellate court, which has been extracted supra and in may view, no exception could be taken to the approach of the lower appellate court or the reasons assigned therein. 5. No doubt, the rules of procedure are prescribed to ensure regularity of the proceedings before courts and to regulate orderliness and perfection. But overzealous or hyper-technical enforcement of the said rules of procedure overlooking the very object will have counter-productive results in the matter of dispensing justice. The Apex Court has often reiterated the vital principle that the rules of procedure are to be considered and must be looked upon as handmaids of justice and not to suffocate and dispense with justice instead of dispensing justice. The Apex Court has often reiterated the vital principle that the rules of procedure are to be considered and must be looked upon as handmaids of justice and not to suffocate and dispense with justice instead of dispensing justice. Of course, there are certain rules of procedure themselves which may confer substantial rights also on parties to the proceedings and in such circumstances there may be need for having a more stringent view in enforcing the same. But, so far as the nature of technicalities and procedural lapse which are said to be against the plaintiffs in these cases are concerned, it is not one such involving any substantial rights of the defendant. On the other hand, the substantial rights of the plaintiffs were sought to be buried by overzealous enforcement of the rules of procedure. which are formal and meant to keep the records of the courts in perfection and regular rather than denying the parties substantial relief. In view of the above and having regard to the fact that the lower appellant court has rendered substantial justice to the parties, the court does not consider it to be a case worth countenacing for interference in exercise of its revisional jurisdiction. The revisions, therefore, fail and shall stand dismissed. C.M.P. Nos.1110 and 1111 of 1996 are also dismissed.