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2018 DIGILAW 2413 (MAD)

Kuchaladoss v. C. Balasubramania Naicker

2018-08-03

P.VELMURUGAN

body2018
ORDER : The relief sought for in this revision petition is to set aside the fair and decretal order dated 20.12.2017 made in I.A.No.30 of 2017 in A.S.No.56 of 2007 on the file of the learned Subordinate Judge, Madhuranthagam. 2. The first respondent/plaintiff filed a suit in O.S.No.61 of 1999 before the learned District Munsif, Madurantakam for declaration and for permanent injunction. The suit was decreed. 3. Against which the first defendant in the suit filed first appeal in A.S.No.56 of 2007 before the Subordinate Court, Madurantakam in which he also filed an Interlocutory application in I.A.No.55 of 2001 in A.S.No.56 of 2007 under Order XLI Rule 27 of C.P.C., to produce additional documents. The first Appellate Court allowed the Interlocutory application and marked the additional documents. Relying upon the additional documents, the first Appellate Court reversed the order of the trial Court and allowed the first appeal. 4. Aggrieved against the said order, the first respondent/plaintiff preferred Second appeal in S.A.No.577 of 2016 before this Court. The said Second Appeal was allowed by setting aside the order made in A.S.No.56 of 2007. After remitting back the first appeal, the first defendant/appellant has not come before the trial Court since he has appointed a power agent. Hence, the revision petitioner who is a power agent of the first defendant in the suit filed an Interlocutory application under Order III Rule 2 of C.P.C., to permit him to give evidence and prosecute the first appeal in A.S.No.56 of 2007. After elaborate discussion, the trial Court dismissed the application on merits. 5. Aggrieved against the said order dated 20.12.2017, the revision petitioner/power agent of the first defendant in the suit is before this Court. 6. The learned counsel for the petitioner would submit that under Order III Rule 2 of C.P.C anybody can be appoint Power Agent on behalf of the Principal, he can file the case and contest the case and he can also give evidence. The trial Court without considering the legal position under Order III Rule 2 of C.P.C., simply dismissed the application. 7. Heard the learned counsel for the petitioner and perused the materials available on record. 8. It is an admitted fact that the Principal can appoint any person as Power Agent and the Power Agent can act on behalf of the Principal. But he cannot give any evidence regarding exclusively personal knowledge of the Principal. 7. Heard the learned counsel for the petitioner and perused the materials available on record. 8. It is an admitted fact that the Principal can appoint any person as Power Agent and the Power Agent can act on behalf of the Principal. But he cannot give any evidence regarding exclusively personal knowledge of the Principal. However, in this case, the Principal came up to this Court till the Second Appeal and engaged a counsel and contested the case. When the matter was remitted back to the trial Court, this Court directed the subordinate Judge to give opportunity to both the parties to prove the correctness of the additional documents marked as Exs.B42 to B52 and decide the suit afresh on merits and in accordance with law. The second defendant has failed to appear before the trial Court. Since this Court has clearly has given a direction to the first defendant to establish the documents already marked as Exhibit B42 to B52. Therefore, the first defendant has to come to the Court and establish the correctness of the additional documents and simply he cannot given a Power of Attorney to the revision petitioner and walk away from the legal proceedings. No reason also has been stated in the affidavit that as to the reason why he has not appeared before the Court in the retrial and as to why he is appointing the Power agent which shows in order to escape from cross examination regarding the documents which were marked as additional evidence. It is the settled preposition of law that anybody can be a Power Agent. On earlier occasion, in the second appeal, this Court has given a direction to establish the document marked as Exhibits P42 to P52 in order to avoid cross examination, he has given Power of Attorney to the revision petitioner. As a power of Attorney is now the revision petitioner filed the application in I.A.No.30 of 2017 not only to contest the suit, he is seeking permission to give evidence on behalf of the first defendant. 9. Under these circumstances, the trial Court dismissed the application, since he has not stated any reason as to why the Principal has not appeared before the Court to contest the suit which shows that the affidavit itself is vague. 9. Under these circumstances, the trial Court dismissed the application, since he has not stated any reason as to why the Principal has not appeared before the Court to contest the suit which shows that the affidavit itself is vague. This Court finds there is no illegality or infirmity in the order passed by the trial Court and finds no merits in this revision petition. 10. In the result, this Civil Revision petition is dismissed. Consequently, connected Miscellaneous petition is closed. No costs.