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Madhya Pradesh High Court · body

2016 DIGILAW 67 (MP)

Sharmila Tagore v. Azam Hasan Khan

2016-02-01

ALOK ARADHE

body2016
ORDER 1. In this writ petition under Article 227 of the Constitution of India the petitioners have assailed the validity of the order dated 16.7.2015, by which, the lower appellate Court has rejected the powers of attorney executed by the petitioners. 2. Facts giving rise to filing of the writ petition, briefly stated. are that the respondent No.1/plaintiff filed the suit seeking the relief of declaration and permanent injunction. The dispute in the suit involves land admeasuring 2.20 acres. The petitioners on receipt of notice entered appearance through their power of attorney in the aforesaid suit before the trial Court. It is pertinent to mention that no objection on behalf of respondents ast any point of time was taken with regard to power of attorney. The trial Court vide judgment and decree dated 7.4.2015 dismissed the suit. Being aggrieved, the respondent No.1 filed first appeal against the aforesaid impugned. judgement and decree. The petitioners entered their appearance through their power of attorney before the lower appellate Court. The lower appellate Court directed the counsel for the petitioners to produce the original power-of-attorney, which was produced on 16.7.2015 Thereafter, the lower appellate Court vide impugned order dated 16.7.2015 has rejected the power-of-attorney of the petitioners, inter alia, on the following grounds :- (i) power of attorney is not a registered one; (ii) notary has not signed each page of the attorney; (iii) each page of the power of attorney does not bear the full signature of the petitioner No.1 except the last page; In addition, the trial Court also directed the petitioner to correct the address. 3. Learned counsel for the petitioner submitted that the impugned order is per se without jurisdiction and is liable to be quashed. On the other hand, learned counsel for the respondents have supported the order passed by the trial Court. 4. I have considered the submissions made by learned counsel for the parties and have perused the record. I deem it appropriate to deal with the grounds of rejection of power-of-attorney produced by petitioners, referred to by the lower appellate Court at seriatim :- (i) Order 3, rules 1 and 2 of the Code of Civil Procedure read as under: “1. Appearances, etc. may be in person, by recognized agent or by pleader. I deem it appropriate to deal with the grounds of rejection of power-of-attorney produced by petitioners, referred to by the lower appellate Court at seriatim :- (i) Order 3, rules 1 and 2 of the Code of Civil Procedure read as under: “1. Appearances, etc. may be in person, by recognized agent or by pleader. — Any appearance, application or act in or to any Court, rquired or authorized by law to be made or done by a party in such Court, may except where otherwise expressly provided by any law for the time being in force, be made or done by the party in person, or by his recoginized agent, or by a pleader appearing applying or acting as the case may be on this behalf. Provided that any such appearance shall, if the Court so directs, by made by the party in person. 2. Recognized Agents— The recognized agents of parties by whom such appearances applications and acts may by made or done are— (a) persons holding powers-of-attorney, authorizing them to make and do such appearances, applications and acts on behalf of such parties; (b) persons carrying on trade of business for and in the names of parties not resident within tle local limits of the jurisdiction of the Court within which limits the appearance, application or act is made or done, in matters connected with such trade or business only, where no other agent is expressly authorized to make and do such appearances, applications and acts. 5. From perusal or aforesaid provision as amended by High Court on 16.9.1960 it is clear that a person holding unregistred general power of attorney can appear and act on behalf of a party to the proceeding in a Court. In this connection, reference may be made to decision in the case of Syed Abdul Khader v. Kami Redy [ AIR 1979 SC 553 ]. (ii) Section 56 and relevant extract of section 57(6) of the Evidence Act read as under :- 56. Fact judicially noticeable need not be proved—No fact of which the Court will take judicial notice need to proved. 57. (ii) Section 56 and relevant extract of section 57(6) of the Evidence Act read as under :- 56. Fact judicially noticeable need not be proved—No fact of which the Court will take judicial notice need to proved. 57. Facts of which Court must take judicial notice—All seals of which English Courts take judicial notice: the seals of all the [Court in (india)], and all Courts out of [India] established by the authority of [the Central Government or the Crown Representative]; the seals of Courts of Admiralty and Maritime Jurisdiction and of Notaries Public and all seals which any person is authorized to use by [the Constitution or an Act or Parliament of the United Kingdom or an] Act or Regulation having the force of law in (India); From perusal of section 57(6) as well as section 85 of the Evidence Act it is evident that the Court is bound to presume that egery document purporting to be a power of attorney and to have been executed before and authenticated by a Notary Public and it was duly executed especially in the case of no rebuttal. In this connection, reference has been made to decision in the case of Jugraj Singh v. Jaswant Singh [ AIR 1971 SC 761 ]. (iii) In view of law laid by Division Bench of Allahabad High Court reported in the case of Dr. Yaduveer Singh v. State of U.P., 2011(1) All. L.J. 299 it is evident that signature by initials is a valid signature and the power of attorney need not contain full signature. In view of aforesaid decision the power of attorney need not contain full signatures. In Commissioner of Agricultural Income Tax, West Bengal v. Keshab Chandra Mandal [ AIR 1950 SC 265 ], whenein it has been held that if a staute requires personal signature of a perosn, which includes a mark, the signature or mark must be that of the man himself. There must be physical contact between that person and the signature or mark put on the document. 6. It is pertinent to mention that the addresses given in memo of appeal of the respondents/petitioners are same which are recorded in the power of attorney submitted in the Court and there was nothing on record to conclude that the addresses given are not correct. 6. It is pertinent to mention that the addresses given in memo of appeal of the respondents/petitioners are same which are recorded in the power of attorney submitted in the Court and there was nothing on record to conclude that the addresses given are not correct. The lower appellate Court therefore grossly erred in issuing direction to the petitioners to correct the addresses. 7. In view fo preceding analysis the impugned order suffers from an error apparent on the face of record. Accordingly, it is quashed. 8. In the result, the writ petition is allowed.