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2021 DIGILAW 398 (TS)

Khaja Azeemuddin v. Fahmina Begum

2021-12-07

A.VENKATESHWARA REDDY

body2021
ORDER : 1. The revision petitioner has filed this Civil Revision Petition under Article 227 of the Constitution of India assailing the order dated 16.03.2021 in IA No.170 of 2021 in OP No.166 of 2015 on the file of the Additional Family Court, City Civil Court, Hyderabad, whereunder the learned Judge, has dismissed the application filed under Rule-32 of Civil Rules of Practice by the petitioner seeking permission for representation by his Special Power of Attorney (SPA) holder. 2. The petitioner has filed an affidavit stating that the SPA is subsisting and the petitioner has given SPA in his favour to represent the petitioner in OP No.166 of 2015 and accordingly, the application was filed under Rule-32 of Civil Rules of Practice. This application was dismissed by the Court below with an observation that till date the original petitioner has not submitted the affidavit as required under Rule 33 of Civil Rules of Practice, though the other party has taken serious objection of the said aspect. Only because the original petitioner is staying away from the jurisdiction of this Court, that does not mean that he can submit his affidavit at a later point. If at all, the original petitioner is not having any knowledge that he should file affidavit under Rule-33 of Civil Rules of Practice and inadvertently the petitioner has filed the petitioner under Rule-32 alone, the original petitioner can cure the defect by filing the same at a later stage. 3. Notice is served on the respondent through her counsel appearing before the Court below. The respondent remained absent without any representation. 4. Heard learned counsel for the petitioner, he relied on principles laid in Ruhina Khan and another v. Abdur Rahman Khan and others, Laws (APH) 2018 715, orders dated 27.07.2018and submitted that in case of authorizing an agent to sign pleadings it is sufficient if the Court is satisfied that he was authorized to sign the pleadings and in such cases, the filing of an affidavit is not mandatory and such defect can be cured at the later stage also by convincing the Court that agent was duly authorized by the Principal to represent him in the matter. 5. 5. In Kamal Silk Mills v. Kuncham Mohana Rao, 2002 (1) ALD 722 (DB), a Division Bench of this Court dealing with the similar facts held that if a General Power of Attorney holder merely signs the pleadings in a case where the principal is represented by a legal practitioner it is sufficient if the Court satisfies itself that he has authority to sign such pleadings and the filing of an affidavit is not mandatory. Any defect in this regard can also be cured at a later stage by convincing the Court that such GPA holder was duly authorized by the Principal to represent him in the matter. However, in a case, where the GPA holder not only signs the pleadings but also adduces evidence and advances arguments on behalf of the Principal, he would necessarily have to file an affidavit of the Principal affirming that he authorized the GPA holder to do so. 6. In the present case also, the petitioner has filed an application under Rule-32 of Civil Rules of Practice seeking permission of the Court to represent the Principal and he is not seeking any other permission to adduce evidence on behalf of the Principal or argue the matter. In such circumstances, the Court below ought not to have insisted for an affidavit as required under Rule 33 of Civil Rules of Practice. This Court further finds that there is no violation of the procedure prescribed under Rule-33 of Civil Rules of Practice, as there is no reason to doubt the authenticity of the Principal authorizing the SPA holder to represent the Principal in the original petition. Merely because the respondent opposing or disputing the SPA, the Court cannot insist or direct the SPA holder for filing the affidavit of Principal under Rule-33 of Civil Rules of Practice unless it is mandated by law, as stated above. 7. As the petitioner has sought to represent the Principal only for limited purpose of signing of pleadings, filing of the affidavit and for such purpose Rule-33 of Civil Rules of Practice is not mandatory. However, in case, where the GPA holder also intends to adduce evidence or advances arguments on behalf of the Principal, then he should necessarily have to file an affidavit as required under Rule-33 of Civil Rules of Practice. 8. However, in case, where the GPA holder also intends to adduce evidence or advances arguments on behalf of the Principal, then he should necessarily have to file an affidavit as required under Rule-33 of Civil Rules of Practice. 8. The Civil Revision Petition is accordingly allowed and the order impugned dated 16.03.2021 in IA No.170 of 2021 in OP No.166 of 2015 is hereby set aside. The Principal i.e., the petitioner is permitted to be represented by the SPA holder-Dr. Shaik Mohd. Aliuddin in the proceedings in OP No.166 of 2015 to the extent indicated above. However, there shall be no order as to costs. Miscellaneous applications, if any pending in this revision petition shall stand closed.