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2015 DIGILAW 883 (CAL)

Tapan Kumar Ghosh v. Dipti Gorai

2015-10-15

SHIB SADHAN SADHU

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JUDGMENT Shib Sadhan Sadhu, J. 1. The petitioner by filing this application under Article 227 of the Constitution of India seeks to set aside the order being order No.31 dated 14.12.2012 passed by the Learned Civil Judge (Senior Division), Sealdah in Title Suit No.155 of 2009 rejecting the petition dated 07.03.2011 filed by the defendant No.2/petitioner herein praying for passing necessary order not to pass the decree on the basis of the impugned compromise petition giving no importance to the evidence led by the constituted Attorney of the defendants and to allow the defendant No.2 to contest the suit on merit through his own appointed Advocate. 2. The plaintiff/O.P. No.1 herein instituted the aforesaid suit for decree of declaration, injunction, specific performance and enforcement of contract, mesne profit, damages and compensation and for further reliefs against the petitioner and another. The petitioner/defendant No.2 executed a notarial Power-of-Attorney in favour of his maternal brothers Soumen Kumar Ghosh and Sujit Kumar Ghosh to look after that suit on his behalf as he has been residing in England. On 06.03.2011 the petitioner returned from England and on 07.03.2011 came to know that the aforesaid suit was going to be amicably settled between the parties to the suit and the Attornies of the petitioners keeping him in dark and without his knowledge and consent. They also led evidence and the Court fixed the date on 08.03.2011 for passing the order. As such the present petitioner filed an application under Section 151 of the Code of Civil Procedure praying for not considering the evidence led by the Attornies on his behalf and for allowing him to contest the suit on merit on personal capacities. That application was heard and was rejected by passing the impugned order dated 14.12.2012. Hence this Revisional Application. 3. Mr. Jiban Ratan Chatterjee, Learned Senior Counsel appearing on behalf of the petitioner argued that the Attorneys of the petitioner filed the compromise petitioner in collusion and connivance with the opposite parties for their illegal gain without taking any instruction from the petitioner and thereby abused and misused the authority granted to them by the petitioner under power-of- Attorney. 3. Mr. Jiban Ratan Chatterjee, Learned Senior Counsel appearing on behalf of the petitioner argued that the Attorneys of the petitioner filed the compromise petitioner in collusion and connivance with the opposite parties for their illegal gain without taking any instruction from the petitioner and thereby abused and misused the authority granted to them by the petitioner under power-of- Attorney. He further contended that the alleged compromise was made without the knowledge and consent of the petitioner and keeping him in complete dark and the terms of the compromise are absolutely prejudicial to the interest of the petitioner in the suit property and therefore he cannot agree with such compromise. He contended yet further that the Attorney cannot be witness on behalf of the principal nor can he depose in place and instead of the principal and therefore, the evidence led by him has no legal footing and the same cannot be considered as valid and legal evidence on behalf of the petitioner. But the Learned Trial Judge did not consider all these materials and passed the impugned order mechanically in a casual manner without recording any reasons. Therefore, according to him, the impugned order is bad in law and is liable to be set aside. He relied on the decision of the Hon’ble Supreme Court reported in AIR 1993 Supreme Court 1139 (Banwari Lal Vs. Smt Chando Devi) (through LR) & Anr.) in support of his contention. 4. Mr. Biswajit Basu, Learned Counsel appearing on behalf of the O.P. No.1, on the other hand, submitted that after receiving the summons of the suit, the present petitioner executed said Power- of-Attorney in favour of the said Attorney authorising him to compound and compromise any matter relating to the suit property. The said Attorney therefore, acted fully within the authority granted to him by the present petitioner who has full knowledge of the suit as well as of the compromise. Moreover, the petitioner did not cancel the Power-of-Attorney till that date and it was in full force when the compromise was entered into and the compromise petition was singed and filed and also when the evidence was led. He further submitted that the evidence led by the Attorney was only in respect of the factum of such compromise and of filing of the compromise petition and of putting his signature on the same as Power-of-Attorney holder of the present petitioner. He further submitted that the evidence led by the Attorney was only in respect of the factum of such compromise and of filing of the compromise petition and of putting his signature on the same as Power-of-Attorney holder of the present petitioner. Therefore, the Learned Trial Judge has rightly rejected the application under Section 151 of the CPC filed by the present petitioner and no fault can be found with such order which deserves to be affirmed. 5. Mr. Aniruddha Chatterjee, Learned Counsel appearing on behalf of the O.P. No.2 subscribed to the submission made by Mr. Basu. 6. Having regard to the rival submission and contention advanced by the Learned Counsel appearing for the parties in the light of the decision placed and on perusal of the entire materials available on record, the twin questions of law which fall for consideration are :-“I) whether the holder of the Power-of-Attorney given by the petitioner acted within the authority of the power-of-attorney by entering into the compromise and by filing compromise petition. ii) whether a General power-of-Attorney holder can depose as a witness. 7. Taking up the first question at first , I find that the present petitioner/defendant No.2 executed a General Power-of-Attorney on 2nd June, 2009 appointing his brother Sujit Kumar Ghosh as his true and lawful Attorney empowering the said Sujit Kumar Ghosh with the right to carry out all legal acts on his behalf without restricting it to a particular transaction or act. It appears from clause (6) of the Power-of-Attorney that the said Attorney was given authority – “ To file and / or to represent any other suits, proceedings relating to ‘Said Premises’ or to compound and compromise any matter relating ‘the Said Premises’ and to sign Vokalatnama, Plaint, Written Statement, petition, to swear Affidavit, Verification and other declarations as it may be deemed necessary by the Attorney in connection with the ‘Said Premises’. Thus it is apparent that the said Attorney Sujit Kumar Ghosh was fully empowered to amicably settle the dispute and to file the compromise petition. It further appears that the compromise petition was filed on 2nd December, 2010 whereas the petitioner revoked the said Power-of-Attorney dated 02.06.2009 only on 7th March, 2011. Thus it is apparent that the said Attorney Sujit Kumar Ghosh was fully empowered to amicably settle the dispute and to file the compromise petition. It further appears that the compromise petition was filed on 2nd December, 2010 whereas the petitioner revoked the said Power-of-Attorney dated 02.06.2009 only on 7th March, 2011. Therefore, on the date of filing of the compromise petition, the Power-of-Attorney executed on 02.06.2009 was very much in force and the Attorney Sujit Kumar Ghosh filed the compromise petition on 2nd December, 2010 having full power and authority to do so. Thus the answer to the question posed above has to be in the affirmative. 8. That brings me to the second question. Looking into the deposition of the said Attorney Sujit Kumar Ghosh given on 22.02.2011 in T.S. No. 155 of 2009 as witness No.3 it appears that he has stated that he is the constituted Attorney of defendant No.2, Dr. Tapan Kumar Ghosh. He exhibited the Power-of-Attorney dated 02.06.2009 executed by Dr. Tapan Kumar Ghosh in his favour authorizing him to file represent the suit proceeding, compound and compromise any matter relating to the premises No.229 C, Vivekananda Road, Kolkata-6. He further stated that the matter has already been amicably settled outside the Court and he prayed for an order as per prayer of the compromise petition made by him. 9. In this context I think it relevant and appropriate to quote the observation made by the Hon’ble Supreme Court in the case of Janki Vashdeo Bhojwani & Anr. V. Indusind Bank Ltd. & Ors. reported in (2005) (2) Supreme Court Cases 217 :- “Order 3 Rules 1 & 2 CPC empower the holder of power of attorney to “act” on behalf of the principal. In our view the word “acts” employed in Order 3 Rules 1 and 2 CPC confines only to in respect of “acts” done by the Power-of-Attorney holder in exercise of power granted by the instrument. The term “acts” would not include deposing in place and instead of the principal. In other words, if the Power-of-Attorney holder has rendered some “acts” in pursuance of power of attorney, he may depose for the principal in respect of such acts, but he cannot depose for the principal for the acts done by the principal and not by him. The term “acts” would not include deposing in place and instead of the principal. In other words, if the Power-of-Attorney holder has rendered some “acts” in pursuance of power of attorney, he may depose for the principal in respect of such acts, but he cannot depose for the principal for the acts done by the principal and not by him. Similarly, he cannot depose for the principal in respect of the matter of which only the principal can have a personal knowledge and in respect of which the principal is entitled to be cross-examined. In the case of Shambhu Dutt Shastri V. State of Rajasthan (1986) 2 WLN 713 (Raj) it was held that a general Power-of-Attorney holder can appear, plead and act on behalf of the party but he cannot become a witness on behalf of the party. He can only appear in his own capacity. No one can delegate the power to appear in the witness box on behalf of himself. To appear in a witness box is altogether a different act. A general Power-of-Attorney holder cannot be allowed to appear as a witness on behalf of the plaintiff in the capacity of the plaintiff. The aforesaid judgment was quoted with approval in the case of Ram Prasad V. Hari Narain AIR 1998 Raj 185 : (1998) 3 Cur CC 183 it was held that the word “acts” used in Rule 2 of Order 3 CPC does not include the act of Power-of-Attorney holder to appear as a witness on behalf of a party. Power-of-Attorney holder of a party can appear only as a witness in his personal capacity and whatever knowledge he has about the case he can state on oath but he cannot appear as a witness on behalf of the party in the capacity of that party. If the plaintiff is unable to appear in the court, a commission for recording his evidence may be issued under the relevant provisions of CPC” 10. It is, therefore, evident that the Attorney Sujit Kumar Ghosh deposed as a witness before the Learned Trial Judge only in his capacity as the Power-of-Attorney holder in respect of the acts rendered by him in pursuance of the Power-of-Attorney. It is, therefore, evident that the Attorney Sujit Kumar Ghosh deposed as a witness before the Learned Trial Judge only in his capacity as the Power-of-Attorney holder in respect of the acts rendered by him in pursuance of the Power-of-Attorney. Therefore, in view of the settled position of law as highlighted above it cannot be said that the evidence led by the said Attorney has no legal footing or that it cannot be considered as a valid and legal evidence as has been contended by the petitioner. As such my answer to the second question is also in the affirmative. 11. Considering the totality of facts and circumstances of the case noted above, coupled with the reasons aforementioned, I am of the considered opinion that the Learned Trial Judge has rightly rejected the application dated 07.03.2011 and the impugned order dated 14.12.2012 does not call for any interference. 12. The instant application is bereft of any merit and is therefore dismissed but without any order as to costs. 13. The urgent xerox certified copy of this judgment, if applied for, be given to the parties on usual undertaking.