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2022 DIGILAW 1672 (BOM)

Veena Baigiri Goswami v. Prescon Home Pvt. Ltd.

2022-07-11

SANDEEP K.SHINDE

body2022
JUDGMENT 1. Rule. Rule made returnable forthwith. Mr. Agha, learned Counsel for respondent no. 1 and Mr. Lawande, learned Counsel for respondent nos. 5 to 8, 10 and 11, waive service on behalf of the respective respondents. Heard finally by consent of parties. 2. The only question that arises for consideration is, whether, the Trial Court was justified in permitting, the power of attorney holder of the petitioner-plaintiff, to withdraw the Commercial Suit No. 28/2021/A [Special Civil Suit No. 9/2021/B(old)], without notice to the petitioner-plaintiff. 3. Briefly stated, the facts of the case are that, the petitioner appointed Mr. Sanjay Vithu Barde, as her power of attorney holder, vide instrument dated 16.04.2021, to do the following deeds, acts and things on her behalf, as if done by her personally; namely; (i) To administer, manage and take care of the property known as 'Tollem E Oiterio Agali' also known as 'Agaye', surveyed under sub-division no. 1 of village Azossim, admeasuring an area of 3,06,575 square metres; (ii) To hold meeting with the buyer of the said property and to receive token in her name or in her Account through RTGS, Demand Draft, Account payee cheques and to issue receipts and acknowledgement of having received the said consideration. (iii) To institute or sign any suit, written statement, applications, affidavits, forms and declarations before any Court of law or other appropriate Authorities and to verify the same in respect of her right/share in the above referred property. (iv) To file/institute and defend/oppose/contest any suit, appeal, revision, review, writ petition or any other legal proceedings before any or all Courts within the territory of India and to withdraw or compromise/ settle any suit, appeal, revision or review as he deems fit and proper and to file consent/compromise terms and to do all acts and things required to be done to safeguard and protect her rights and interest in the above mentioned property. 4. The petitioner ratified, confirmed and agreed to ratify and confirm all acts and things done by Mr. Sanjay Vithu Barde by virtue of general power of attorney dated 16.04.2021. 5. On 29.04.2021, petitioner-plaintiff instituted a Commercial Suit No. 28/2021/A [Special Civil Suit No. 9/2021/B(old)] in the Court of Senior Civil Judge, 'A' Court, Panaji, through her constituted power of attorney, Mr. Sanjay Vithu Barde. The plaint was verified by Mr. Sanjay Vithu Barde and he appointed Advocate Phadte. 5. On 29.04.2021, petitioner-plaintiff instituted a Commercial Suit No. 28/2021/A [Special Civil Suit No. 9/2021/B(old)] in the Court of Senior Civil Judge, 'A' Court, Panaji, through her constituted power of attorney, Mr. Sanjay Vithu Barde. The plaint was verified by Mr. Sanjay Vithu Barde and he appointed Advocate Phadte. In the suit, the petitioner-plaintiff was seeking a decree to declare sale deed dated 31.03.2007, executed by the defendant no. 3 as a Director of defendant no. 4, with an active participation of defendant nos. 5 to 12, played a fraud on the plaintiff by executing a deed of sale, purportedly, by purchasing the suit property in the favour of defendant no. 4, on the ground that the very property was purchased by the plaintiff by registered deed of sale dated 21. 04.1999. It appears that the constituted attorney of the petitioner-plaintiff after going through the affidavit and reply filed by the defendant no. 1, made search before the Sub-Registrar, Panaji and other Government Departments and found that the defendant no. 1 was legally equipped with the sale deed and was a legal title owner in possession of the suit property. Thereafter, he made search in the office of the Sub-Registrar, Panaji to verify the plaintiff's title and the sale deed, by which, she was asserting her rights and title. Whereupon, he found that the sale deeds, on the basis of which, the plaintiff was claiming her title, were missing before the Sub-Registrar's office and even the volumes having been gone missing, which created a suspicion in his mind. The constituted attorney learnt that the sale deeds relied on, by the petitioner-plaintiff were not legal documents, but, were bogus and forged documents. 6. Having learnt the facts aforestated, Mr. Sanjay Vithu Barde, constituted attorney of the plaintiff, moved an Application, supported by an affidavit, in the pending civil suit, seeking leave to withdraw the suit forthwith. It may be stated that Mr. Sanjay Vithu Barde had appointed Advocate S. Phadte to institute the suit. Upon moving the Application, seeking withdrawal of the suit, Advocate Phadte objected the Application on the ground that he may have to seek appropriate instructions from the petitioner-plaintiff, since the Application moved by Mr. Sanjay Vithu Barde was apparently favouring the defendants. On this premise, Advocate Phadte requested the Trial Court that the decision, on the Application, may kindly be taken after two weeks. 7. Sanjay Vithu Barde was apparently favouring the defendants. On this premise, Advocate Phadte requested the Trial Court that the decision, on the Application, may kindly be taken after two weeks. 7. The learned Judge, however, overruled the objection of Advocate Phadte and by relying on the judgment in Anil Dinmani Shankar Joshi Vs. Chief Officer, Panvel Municipal Council, AIR 2003 Bom 238 , held that withdrawal would be complete as soon as the plaintiff files a purshis of withdrawal. As such, the Application was allowed and the suit was disposed of as withdrawn, observing that in case, the petitioner has grievance against her attorney, she can very well explore legal remedies available to her. 8. The order dated 07.09.2021, passed by the learned Senior Civil Judge is challenged in this Writ Petition. 9. Mr. Arshad Nehal, learned Counsel for the petitioner would submit that although, Mr. Sanjay Vithu Barde, a constituted attorney of the petitioner-plaintiff was authorised and had power to file, withdraw or compromise the suit in respect of the property in question, yet the withdrawal of the suit by Mr. Sanjay Vithu Barde was not in the interest of the petitioner-plaintiff, nor such an act was done to safeguard and protect her right in the suit property. Mr. Arshad Nehal would rely on the objections filed by Advocate Phadte to contend that, in view of the objection, the learned Judge ought to have granted time to Advocate Phadte to verify the actual intention of the plaintiff and/or in the alternative, ought to have issued notice to the plaintiff before permitting to withdraw the suit. It is therefore, argued that the act of constituted attorney, was not, in the interest of the plaintiff, the learned Judge ought not to have granted the Application. On this premise, the petitioner seeks to quash the impugned order dated 07.09.2021. 10. Mr. Iftikhar Agha, learned Counsel for the respondent no. 1 and Mr. Vishnuprasad Lawande, learned Counsel for respondent nos. 5 to 8, 10 and 11, supported the impugned order and would contend that the constituted attorney of the petitioner-plaintiff has withdrawn the suit in view of the express authority and the power given to him vide instrument of general power of attorney and therefore, the constituted attorney acted within his power. It is, therefore, contended that the impugned order cannot be faulted with. 11. It is, therefore, contended that the impugned order cannot be faulted with. 11. Learned Counsel would further contend that, it would not be out of place to state that till date, the petitioner has not revoked and/or cancelled the power of attorney and/or authority of Mr. Sanjay Vithu Barde. It is thus submitted that in consideration of the facts of the case, the Petition requires no consideration and it may be dismissed. 12. Provisions of Order III, Rules 1 and 2 of the CPC empower the holder of the power of attorney to 'act' on behalf of the principal. The words 'acts' employed therein, is confined only to 'acts' done by the power of attorney holder, in exercise of powers granted to him by virtue of the instrument. Therefore, if the power of attorney holder has done any acts, within his power, such acts would bind the granter. 13. In the case at hand, the power of attorney holder was expressly authorized to file and withdraw suit in respect of the property (suit property) in question. Further, vide clause no. 11 of the power of attorney, the petitioner-plaintiff had agreed to ratify and confirm all acts and deed done by her attorney by virtue of instrument of power of attorney. In context of these facts, an Application moved by Mr. Sanjay Vithu Barde, seeking leave to withdraw the suit was well within his power and authority and once, such an Application is moved for withdrawal of the suit, the withdrawal would be complete. 14. Order XXIII, Rule 1 of the CPC permits the plaintiff at any time, after the institution of the suit to abandon the suit or to abandon the part of the claim in the suit, against all or any of the defendants, for which, no permission of the Court is necessary. Abandonment is complete as soon as the plaintiff informs the Court, whereafter, no order of the Court is necessary. Law is provisions of sub-Rule 1, of Rule 23, affirms the unqualified right of the plaintiff to withdraw or abandon the suit. Abandonment is complete as soon as the plaintiff informs the Court, whereafter, no order of the Court is necessary. Law is provisions of sub-Rule 1, of Rule 23, affirms the unqualified right of the plaintiff to withdraw or abandon the suit. There is no provision in the Code of Civil Procedure, which requires the Court to refuse permission to withdraw a suit or to compel a plaintiff to proceed with his suit, unless, some vested rights of third party has come into existence, at the stage at when the plaintiff seeks to withdraw his suit, as held in the case of Hulas Rai Baij Nath Vs. Firm K. B. Bass & Co., AIR 1968 SC 111 . 15. In the case of Anil Dinmani Shankar Joshi (supra), the learned Judge of this Court after referring to the decision of the Apex Court in the case of Shiv Prasad Vs. Durga Prasad, (1975) 1 SCC 405 , held that every applicant has a right to withdraw his Application when the plaintiff files the purshis of withdrawal. 16. Thus, in the context of the facts of the case, in my view, the Application moved by the constituted attorney was in exercise of powers granted by the instrument of power of attorney and therefore, right to withdraw, exercised by him, cannot be faulted with. As also, the order passed by the learned Judge in exercise of powers under Order XXIII, Rule 1 of the CPC was well within its jurisdiction and therefore, calls for no interference. In fact, the provisions of Order XXIII, Rule 1 of CPC do not suggest that when an Application is moved by constituted attorney of the plaintiff for withdrawing the suit, the Court is obliged to issue notice to the plaintiff. 17. For all these reasons, in my view, the impugned order calls for no interference in the supervisory jurisdiction of this Court. As a consequence, the Petition is dismissed. Rule discharged. 18. Pending Miscellaneous Civil Application No. 54 of 2022 (F) stands disposed of.