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2012 DIGILAW 1881 (MAD)

A. K. Nawaz v. Kalpana

2012-04-12

G.RAJASURIA

body2012
Judgment :- 1. Animadverting upon the order dated 12.11.2011 passed by the learned Principal District Munsif, Alandur in I.A.No.1332 of 2011 in I.A.No.1691 of 2010 in O.S.No.219 of 2005, this civil revision petition is focussed. 2. The parties are referred to hereunder according to their litigative status and ranking before the lower Court. 3. Pithily and precisely, tersely and briefly the relevant facts absolutely necessary and germane for the disposal of this revision would run thus: The revision petitioner/plaintiff herein filed the suit for permanent injunction as against two defendants namely Kalpana/D1 and Padmanabhan/D2, the respondents herein. D2 entered appearance and for him Vakalat was filed by the Advocate who also undertook to file Vakalat for D1-Kalpana. Subsequently, no such Vakalat was filed and no written statement also was filed by D2; whereupon, exparte decree was passed. Subsequently, I.A.No.1691 of 2010 was filed by the defendants under Section 5 of the Limitation Act to get the delay of 1041 days condoned in filing the application to get the exparte decree set aside. The said application was heard and the matter was reserved for orders by the lower Court. 4. In the meanwhile, the defendants themselves filed one other application in I.A.No.1332 of 2011 in I.A.No.1691 of 2010 for getting the matter re-opened and for filing the power deed executed by D1 in favour of D2. In fact, in the earlier application under Section 5 of the Limitation Act in I.A.No.1691 of 2010, it was D2 who had sworn the affidavit on his behalf and on behalf of Kalpana/R1 also. After hearing both sides, the lower Court allowed I.A.No.1332 of 2011. Being aggrieved by and dissatisfied with the matter, the revision petitioner/plaintiff preferred the revision on various grounds. 5. The learned counsel for the revision petitioner/plaintiff would put forth and set forth his arguments which could succinctly and pithily be set out thus: Without filing the power deed, D2 simply filed the affidavit on his behalf also and on behalf of Kalpana, as though he is the power agent of Kalpana. Subsequently they wanted to file the power deed and also seek permission for D2 – Padmanabhan to represent Kalpana-D1, which exercise would amount to putting the cart before the horse. Accordingly, the learned counsel for the revision petitioner, would pray for setting aside the order of the lower Court and for dismissing I.A.No.1332 of 2011. 6. Subsequently they wanted to file the power deed and also seek permission for D2 – Padmanabhan to represent Kalpana-D1, which exercise would amount to putting the cart before the horse. Accordingly, the learned counsel for the revision petitioner, would pray for setting aside the order of the lower Court and for dismissing I.A.No.1332 of 2011. 6. The point for consideration is as to whether the trial Court was justified in allowing I.A.1332 of 2011, so as to permit D2 to represent D1 as her power agent, based on the power deed which was filed along with I.A.No.1332 of 2011? 7. The matter would have been different if Kalpana's power agent who was not a party filed the earlier application under Section 5 of the Limitation Act in I.A.No.1691 of 2010, but here D2-Padmanabhan had sworn the affidavit on his behalf and on behalf of This Kalpana and filed I.A.No.1691 of 2010. Before disposal of that said I.A.No.1691 of 2010, the defendants filed one other application I.A.No.1332 of 2011 to get permission from the Court so as to enable Padmanabhan to represent Kalpana as her power agent, based on the registered power deed dated 17.07.2002 which emerged long prior to the emergence of the litigation. Hence such non filing of the power deed along with I.A.No.1691 of 2010 was only a formal defect that was curable. The lower Court au fait with law correctly appreciating the factual matrix allowed I.A.No.1332 of 2011, warranting no interference in the revision. 8. It is also a common or garden principle of law that one defendant could represent another defendant also. Here after the exparte decree having been passed as against the defendants, they filed the application under Section 5 of the Limitation Act and in support of that application one of the defendants namely Padmanabhan/D2 had sworn the affidavit. In my considered opinion, had Padmanabhan filed the affidavit only in his individual capacity without even swearing the affidavit on behalf of Kalpana, that would have been maintainable. Over and above that, it is not as though Padmanabhan who represented Kalpana was not a party to the proceedings. In such situation, I am of the view that absolutely there is no defect in the order passed by the lower Court. Over and above that, it is not as though Padmanabhan who represented Kalpana was not a party to the proceedings. In such situation, I am of the view that absolutely there is no defect in the order passed by the lower Court. In order to keep the records straight, the defendants took steps to file the power deed and also sought permission in favour of Padmanabhan to act as power agent of Kalpana and the same was correctly accepted by the lower Court, warranting no interference in the revision petition. In the result, the revision petition stands dismissed. No costs.