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2018 DIGILAW 3284 (MAD)

Nafeez Zawahir v. P. G. Venugopal

2018-09-26

M.SATHYANARAYANAN

body2018
JUDGMENT M. SATHYANARAYANAN, J. 1. By consent, the Civil Revision petition is taken up for final disposal. For the sake of convenience, this Court adopts the nomenclature/array of parties in O.S.No.149 of 2009 on the file of the Court of Subordinate Judge, Poonamalle. 2. Tmt. Dr. Nafeez Zawahir had filed O.S.No.149 of 2009 on the file of the Court of Subordinate Judge, Poonamallee against Thiru. P.G. Venugopal, praying for a judgment and decree for specific performance of the contract dated 21.04.1999, in respect of the site and land and building situated at Plot No.6160, TNHB, HIG - Type 344, 50 Sq.M in Ambattur, Ayyapakkam Village, Thiruvallur District. The plaintiff was represented by Thiru. Arul samy, Power of Attorney. 3. The defendant had filed I.A.No.502 of 2012, under Order 7 Rule 11 read with Section 1 of Civil Procedure Code, praying for rejection of the plaint on the ground that admittedly, the Suit came to be laid on the power of attorney said to have been executed by him on 20.04.1999 in favour of the plaintiff, which was subsequently cancelled and as such the Suit per se is not maintainable. The defendant also took a stand that he became owner of the said property on 29.05.2008 through a registered Sale Deed executed by Housing Board and he has no authority to execute the so called Power of Attorney or any other instrument in favour of some body and therefore prays for rejection of the plaint. 4. The plaintiff has filed a counter affidavit refuting the allegations. The plaintiff also filed the Power of Attorney of the plaintiff namely Mr. M. Arulsamy and he also filed I.A.No.502 of 2012 under Order 3 Rule 2 read with Section 151 CPC seeking leave of the Court to file the Power of Attorney along with a petition and to take back the already filed Power Deed and permitted to conduct the case on behalf of the Principal. In the affidavit filed in support of the said petition, it was averred that the Principal had executed a Power of Attorney in his favour on 01.09.2007 and the original was filed in the Court and after filing of the application by the defendant under Order 7 Rule 11 CPC in I.A.No.502 of 2012, it came to the knowledge that the Principal did not subscribe signatures on a page but only on the last page. Since a mistake has crept in inadvertently, fresh power of attorney was prepared and sent to the Principal at United States of America and it was sent back and he sought to use the same to prosecute the suit and the said petition was resisted by the defendant by submitting that it cannot be termed as a technical as well as curable defect for the reason that even at the time of institution of the suit, an invalid Power of Attorney has been utilised and therefore it cannot be replaced with another Power of Attorney, which came into being subsequent to the filing of the Suit and therefore, prays for dismissal of the application. 5. The Court of Subordinate Judge, Poonamalle, had taken up I.A.No.502 of 2012 filed by the Power of Attorney of the plaintiff at the first instance and noted that though it was claimed that the Power of Attorney was sent to the Principal at United States of America and she signed the same, a perusal of the Power of Attorney dated 22.08.2007 would disclose that it seems to be executed at Chennai and witnesses were also residing at Chennai and therefore, it became evident that the said Power of Attorney has not been executed in United States of America. Reliance was also been placed upon the judgment of the Karnataka High Court in the case of State of Karnataka Vs. M.Muniraju, (2002) AIR Karnataka 287 and after extracting Paragraph No.51, the Lower Court felt that the Power of Attorney cannot be allowed to be filed and accordingly, dismissed the petition, vide impugned fair and decreetal orders dated 04.01.2013 and challenging the legality of the same, the plaintiff had filed this revision. 6. The Trial Court has also taken up I.A.No.214 of 2012 filed by the defendant for rejection of the plaint and having found that the irregularity under Order 3, Rule 2 CPC can be rectified at later stage and for that reason, the plaint cannot be rejected and the Court has observed that the execution of the Power of Attorney and its validity can be gone into only during the course of trial and citing the said reasons, dismissed the petition, vide impugned order dated 08.03.2012 and challenging the legality of the same, the defendant had filed CRP.No.2196 of 2013. 7. Mr. 7. Mr. C.A. Thiyagarajan, learned counsel appearing for the revision petitioner/plaintiff has invited the attention of this Court to the typed set of the papers and would submit that the mistake appears to be committed by the counsel appearing for the plaintiff for the reason that Sister of the plaintiff has executed the Power of Attorney dated 01.08.2007 in favour of Mr. Arul samy and subsequently executed Power of Attorney dated 22.08.2007 and pointing the very same as a Power of Attorney, while presenting the plaint, the Power of Attorney dated 01.08.2007 executed by the Sister of the plaintiff appears to be filed and the said mistake was noted only at the time of filing of the application by the defendant in I.A.No.214 of 2012 for rejection of the plaint and in order to set right the said mistake, prepared a fresh Power of Attorney and sent the same to United States of America and it was executed by the plaintiff on 22.05.2013. 8. The learned counsel appearing for the revision petitioner also fairly pointed out that though the affidavit filed in support of IA.No.502 of 2012 is dated 29.10.2012 and also came to be filed in the very same year and the Power of Attorney is dated 25.12.2013 and would plead that since the said mistake is technical in nature and also inadvertent one, it may not be termed as curable defect and therefore, the Power of Attorney dated 22.08.2007 may be taken on record, so as to enable the Power of Attorney agent to prosecute the Suit and with regard to the merits or otherwise as to the validity or execution of the Power of Attorney, it may be adjudicated during the course of trial. 9. 9. Per contra, Mr.Narasimhan, learned counsel appearing for the defendant has reiterated the stand of the defendant in the counter affidavit in I.A.NO.502 of 2012 and would submit that the Suit itself is not maintainable for the reason that the Power of Attorney has been filed erroneously, which is not executed by the plaintiff and it also came to be cancelled subsequently and also invited the attention of this Court to the prayer made in O.S.No.149 of 2008 and would submit that with the pleadings and the present prayer, the suit cannot be maintained at all and the Trial Court, without adverting to the scope of Order 7 Rule 11, has erroneously dismissed the application filed for rejection of plaint and therefore, prays for interference. 10. This Court has considered the rival submissions and also perused the materials placed before it. 11. In CRP.No.1860 of 2013, the primordial question arises for consideration is whether the presentation of the plaintiff with wrong Power of Attorney is a curable defect or not 12. In the considered opinion of this Court, the said issue is no longer res integra in the light of the catena decisions referred below: 13. In order dated 02.12.2010 made in CRP.(PD).No.745 of 2010 [Mr.K.Santhanam v. Ms. S. Kavitha], the issue relating to allowing an application permitting the sub-agents appointed by the Power agent of the plaintiff to conduct the proceedings on behalf of the plaintiff came up for consideration and after referring to the decision of the Hon'ble Supreme Court in Uday Shankar Triyar Vs. Ram Kalewar Prasad Singh and Others, (2006) 1 SCC 75 , wherein in paragraph No.17 of the above cited decision, it is observed that ''Procedural defects and irregularities which are curable should not be allowed to defeat substantive rights or to cause unjustice. Procedure, a handmaiden to justice, should never be made a tool to deny justice or perpetuate injustice, by any oppressive or punitive use''. The learned Judge in Paragraph No.24 also observed that a defect in the signature of the plaint or in the absence of signature, where it appears that the suit was in fact filed with the knowledge and by the authority of the plaintiff' named therein, may be cured by an amendment at any stage of the Suit and it is not a ground for interference. 14. 14. In Uday Shankar Triyar v. Ram Kalewar Prasad Singh and another, (2006) 1 SCC 75 , it is stated that in signing of the memorandum of appeal by the appellant/pleader and the effect of the same came up for consideration and it is also stated that such omission or defect being one relatable to procedure, can subsequently be cured. 15. In State of Karnataka V. M.Muniraju, (2002) AIR Karnataka 287, the issue relating to the filing of the Power of Attorney at the time of institution of the suit and issue relating to no authority to present the suit and which are cured subsequently came up for consideration and it was held that subsequent ratification by executing the general Power of Attorney is untenable as the general Power of Attorney also had no power of agent to institute the suit against the defendants. 16. In Ashoke Kumar Daw and another v. Gobnida Chandra Dey and Others, (1984) AIR Calcutta 337, the issue relating to initiation of proceedings without presenting the power of attorney came up for consideration and the Karnataka High Court, after taking into consideration its own decision and the decision of the Hon'ble Apex Court, held that it is a curable defect. 17. In M.C.S. Rajan and Co. v. National Nail Industries, Tiruchirapalli and Others, (1976) AIR Madras 151, the issue is relating to violation of the authority which enabled the party to sign the plaint and verified the pleadings and facts of the case would disclose that Principal has ratified the said Act and it was held that so long as the Principal has ratified such an act, suit was held to be maintainable. 18. It is the submission of the learned counsel appearing for the revision petitioner that the mistake was committed by the counsel for the reason that instead of filing Power of Attorney dated 22.08.2007 executed by Dr. Nafeer Jawahir in favour of Thiru. Arulsamy, he has wrongly filed Power of Attorney dated 01.08.2007 executed by the Fawzia Zawahir in favour of Thiru. Arulsamy and also committed one more mistake by getting fresh Power of Attorney dated 22.08.2007 executed by the Principal at U.S.A and therefore, the said fact has also been wrongly stated in the affidavit filed in support of I.A.No.502 of 2012 and for the mistakes committed by the advocate, the party should not be penalised. 19. Arulsamy and also committed one more mistake by getting fresh Power of Attorney dated 22.08.2007 executed by the Principal at U.S.A and therefore, the said fact has also been wrongly stated in the affidavit filed in support of I.A.No.502 of 2012 and for the mistakes committed by the advocate, the party should not be penalised. 19. Per contra, the learned counsel appearing for the respondent would submit that the Lower Court has recorded reasons as to why the Power of Attorney cannot be received and the said conclusion reached by the Lower Court is in accordance with law. 20. A perusal of the materials placed before this Court would indicate that the counsel, instead of filing the Power of Attorney dated 22.08.2007 executed by Dr.Nafeez Jawahir in favour of Thiru. Arulsamy, he has wrongly filed the Power of Attorney dated 01.08.2017 executed by Fawzia Jawahir in favour of Thiru. Arulsamy and when said mistake came to his knowledge, he filed IA.No.502 of 2012 and he sworn to the affidavit filed in I.A.No.502 of 2012 stating among other things that the said mistake has crept inadvertently without his knowledge and therefore, he prepared another Power of Attorney and sent to U.S.A and get it executed and attested. The Lower Court has reached the conclusion that the power of attorney dated 22.08.2007 came to be executed at Madras and witnesses were also residents of Madras and the date and mode of sending the Power of Attorney to U.S.A has not been disclosed by the plaintiff. Therefore, it is evident that it has not been executed at U.S.A and as such the Power of Attorney has no authority to file the suit on the date of filing. It appears to this Court that in the light of the said inadvertent mistake, the revision petitioner/plaintiff shall not suffer and in the light of the above cited decisions, it is only a curable defect and therefore, the impugned fair and decreetal order warrants interference. 21. In the result, the Civil Revision Petition is allowed and the impugned decreetal order dated 04.01.2013 made in I.A.No.502 of 2012 in O.S.No.149 of 2009 are set aside and as such, consequently, I.A.No.502 of 2012 stands allowed and in the light of allowing of the application, the revision petitioner, rep. 21. In the result, the Civil Revision Petition is allowed and the impugned decreetal order dated 04.01.2013 made in I.A.No.502 of 2012 in O.S.No.149 of 2009 are set aside and as such, consequently, I.A.No.502 of 2012 stands allowed and in the light of allowing of the application, the revision petitioner, rep. by his Power of Attorney, is permitted to present the power of attorney dated 22.08.2007 executed by the Principal/plaintiff in favour of the Power of Attorney namely Mr.Arulsamy and for the purpose of prosecuting the suit. However, it is always open to the respondent/defendant to put forth his defense, in that regard at an appropriate stage of the suit. No costs. Consequently, connected miscellaneous petition is closed.