Research › Search › Judgment

Madhya Pradesh High Court · body

2007 DIGILAW 197 (MP)

Tara Sharma v. Karuna Pandey

2007-02-19

A.M.NAIK

body2007
ORDER 1. Short facts involved in the petition are that one Jitendra Kumar Sharma instituted a suit in the capacity of power of attorney holder for recovery of Rs. 1,43,256/- from the defendants/respondents. There was a petrol pump which was being managed by Jitendra Kumar Sharma under a power of attorney. However, he did not mention in the plaint about the principal who authorised him by executing power of attorney. The recovery was towards the price of petrol and diesel issued against the orders given from 1.5.2000 to 31.10.2003. This suit was initially registered as Civil Suit No. 6-B/2004 and has been presently registered as Civil Suit No. 2B/2005 pending in the Court of Additional District Judge, presided over by Shri P.K. Shrivastava. During pendency of the suit Smt. Karuna Pandey (respondent No. 1 herein), submitted an application that she was the principal and had authorised Jitendra Kumar Sharma to run the petrol pump. Her application for substitution in place of Jitendra Kumar Sharma was allowed and consequently respondent No.1 was substituted as plaintiff in place of Jitendra Kumar Sharma in Civil Suit No. 2-B/05. Thereafter, the present petitioner, namely, Smt. Tara Sharma, submitted an application that she and respondent No.1 had jointly appointed Jitendra Kumar Sharma as power of attorney to run the petrol pump. This application was dismissed by the trial Court on 4.7.2006 on the ground that the disputed fact that whether Smt. Tara Sharma was partner in the petrol pump business or not, cannot be gone into in the suit for recovery. This order was challenged before this Court in Writ Petition No. 9796/06. The petition was dismissed on 30.8.2006 with an observation that no one can be joined in a suit as co-plaintiff without the consent of the existing plaintiff. However, it was further observed that the petitioner may bring a separate suit. 2. Thereafter, the present petitioner has instituted a suit for recovery of the same amount against the defendants/respondents No.2 to 4 which was registered as civil suit initially in the Court of District Judge Panna, which has been transferred to the Court of Additional District Judge Panna, presided over by the same Judge, namely, Shri P.K. Shrivastava and has been registered as Civil Suit No. 1-B/2006. In this suit, summons have been issued to the defendants. 3. In this suit, summons have been issued to the defendants. 3. The petitioner, thereafter, submitted an application under section 151 of the Code of Civil Procedure with a prayer that Civil Suit No. I-B/ 06 and Civil Suit No. 2-B/05 be decided analogously. This application was opposed and has been dismissed by the impugned order marked as Annexure P-5 on the ground that the earlier suit is at the stage of final arguments whereas, Civil Suit No.1-B/06 is at the stage of summoning of the defendants. 4. Shri Dwivedi, learned counsel for the petitioner contended that both the suits are for recovery of the same amount arising from the same bills issued, by common petrol pump. He has placed on record copy of the power of attorney (Annexure P-2) which prima facie goes to show that Jitendra Kumar Sharma was appointed by the petitioner as well as by respondent No.1 by a common deed of power of attorney. Accordingly, it has been contended that the defendants may be made liable to pay the amount either to the petitioner or to the respondent No.1. Therefore, the suits cannot be decided separately. 5. Shri J.K. Verma, learned counsel appearing for the respondent No.1 countered the submissions of the petitioner on the ground that Civil Suit No. 2-B/05 has already traversed substantially and is at the stage of final arguments. In view of this, it has been contended that the proceedings of earlier suit cannot be held up by the subsequent suit which is extremely at a preliminary stage. He also disputed the power of attorney contained in Annexure P-2 as forged one. 6. I have heard the submissions of both the learned counsel and perused the record. 7. At this stage, it cannot be examined that whether the power of attorney contained in Annexure P-2 is genuine or forged. This will have to be examined by the learned trial Judge after allowing the parties to adduce evidence. 8. It is true that the earlier suit instituted by respondent No. 1 has traversed substantially being at the stage of final arguments, but it is equally true that both the suits are for recovery of money liable to be paid against the same bills of petrol and diesel. 8. It is true that the earlier suit instituted by respondent No. 1 has traversed substantially being at the stage of final arguments, but it is equally true that both the suits are for recovery of money liable to be paid against the same bills of petrol and diesel. If the trial Court is permitted to pronounce judgment in earlier suit (which may even be in favour of respondent No.1), it would not be in a position to render judgment in C.S. No. 1-B/2006 in favour of the petitioner for the same money against the same bills. This would, obviously, prejudice the plaintiff/petitioner in C.S. No. 1-B/2006. In such matters, powers under section 151 CPC, are liable to be invoked in the ends of justice, for relieving the petitioner from the probable prejudice. 9. Shri J.K. Verma, learned counsel appearing for respondent No.1, expressed an apprehension that he being not a party to Civil Suit No. 1-B/ 06 would not be able to disprove the power of attorney contained in Annexure P-2. 10. Shri Dwivedi, stated at Bar that an application for joinder of the present respondent No.1 was moved by him which was dismissed and a writ petition has been preferred in the matter. Copy of the writ petition with annexures be furnished to the learned counsel for respondent No. 1 within two days. Shri Verma, gave his consent for being joined as codefendant in Civil Suit No. 1-B/06. 11. This being so, the apprehension would stand subsided and respondent No. 1 would also be joined in the suit as co-defendant. 12. Considering the aforesaid, this petition is disposed of with the direction that the learned trial Judge would decide both the suits on a common day. The plaintiff/petitioner would be permitted to serve the existing defendants also in humdust manner. Learned trial Judge is directed to decide both the suits expeditiously, preferably before commencement of summer vacation 2007. It is made clear that in case, if the petitioner prays for two adjournment consecutively without sufficient cause to the satisfaction of the trial Court, the learned trial Judge would be at liberty to decide the earlier suit (C.S. No. 2-B/05) even in separate manner. Parties represented herein are directed to appear in the trial Court on 1st of March 2007. It is also made clear that no separate summons are required to be issued to respondent No. 1 herein. Parties represented herein are directed to appear in the trial Court on 1st of March 2007. It is also made clear that no separate summons are required to be issued to respondent No. 1 herein. 13. With the aforesaid, the petition accordingly, stands disposed of.