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2017 DIGILAW 1164 (ORI)

Ramesh K. Rathor v. Dipti Mookerjee

2017-10-16

BISWANATH RATH

body2017
ORDER 16.10.2017. Heard Sri S.S.Das, leaned Senior Counsel for the petitioner, Sri A.K. Mohapatra, learned Counsel for O.Ps. 1 to 5 and Sri S.P. Mishra, learned Senior Counsel for O.Ps. 6 to 8. 2. This Civil Misc. Petition involves the impugned order, vide Annexure-6 passed by the Trial Court involving C.S. No.322/2016. During course of argument on merit of the case, Sri Das, learned Senior Counsel for the petitioner referring to the application moved and considered in the impugned order being moved by the power of attorney thus contended that the suit having been filed by the party concerned, there was no scope for filing of any interlocutory application through the power of attorney. Sri Das thus claimed, the impugned order being involved a not maintainable application is not sustainable in the eye of law. 3. Sri Mohapatra, learned Counsel for O.Ps. 1 to 5 objecting the objection raised by Sri Das, learned Senior Counsel for the petitioner and referring to the contents in the power of attorney submitted that for the authorisation given under the power of attorney, the person filing the Misc. Application was duly authorised and there was no illegality in moving such application in the survival of the power of attorney by the plaintiff in favour of the person filed the Misc. Application. Sri Mohapatra, learned Counsel for the O.Ps. 1 to 5 justified the filing of the application under further referring to the observations made in the impugned order, while supporting the same requested this Court not to interfere with the impugned order. 4. Considering the preliminary objection involved herein, this Court going through the copy of the plaint finds that the plaint has been filed by the party concerned even during existence of the power of attorney. Perusal of the application involved this Court finds, the application involving the impugned order has been filed through the power of attorney. For filing of the plaint in person through the plaintiff, this Court observes, there was no scope for filing subsequent application either by the agent or through the power of attorney. Finding that the application involving the impugned order filed by a stranger, this Court finds, the application involving the impugned order is not maintainable. As a consequence, the impugned order also suffers. 5. Under the circumstance, the impugned order is not sustainable. Finding that the application involving the impugned order filed by a stranger, this Court finds, the application involving the impugned order is not maintainable. As a consequence, the impugned order also suffers. 5. Under the circumstance, the impugned order is not sustainable. Since the impugned order is interfered with and finding the application involved therein was not maintainable, this Court observes, the plaintiff will not be restricted from filing a fresh application involving the same issue. In the event any such application is moved, the same shall be considered on its own spirit. 6. The Civil Misc. Petition stands allowed. Issue urgent certified copy. CMP allowed.