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V.A. Rabiammal, Rep. by her Power of Attorney, N.M.A. Noor Mohideen v/s Canara Bank, Rep. by its Assistant General Manager & Others

    C.R.P.(PD). Nos. 1204 to 1206 of 2010

    Decided On, 11 July 2018

    At, High Court of Judicature at Madras

    By, THE HONOURABLE MS. JUSTICE P.T. ASHA

    For the Petitioner: K.B. Iqbal Ahamed, Advocate. For the Respondents: R1, No Appearance.



Judgment Text

(Prayer: Civil Revision Petitions filed under Article 227 of the Constitution of India against the fair and decreetal orders passed in I.A.Nos.19266, 19265 and 19261 of 2009 in O.S.No.6238 of 2003 dated 22.01.2010 on the file of the learned IV Assistant Judge, City Civil Court, Chennai.)

Common Order

1. The above Civil Revision Petitions arise out of Common Order passed in I.A.Nos.19266, 19265 and 19261 of 2009 in O.S.No.6238 of 2003, which respectively are

(a) Petition filed under Order 18 Rule 17 of the Code of Civil Procedure to recall P.W.1 for the purpose of marking the supplemental power of attorney dated 11.12.2008,

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(b) Petition filed to reopen the plaintiff's side evidence

and

(c) Petition filed under Order 7 Rule 14(3) of the Code of Civil Procedure to grant leave to the plaintiff to file supplemental Power of Attorney dated 11.12.2008 as additional document.

2. These applications have been taken out in the suit in O.S.No.6238 of 2003 pending on the file of the learned IV Assistant Judge, City Civil Court, Chennai, filed by the petitioner herein against the respondents seeking the following relief:

(a) for a permanent injunction restraining the 1st defendant, their men, agents, customers from parking any vehicles inside the covered passage areas or in the 26 feet wide passage morefully described in the schedule to the Plaint.

(b) for a mandatory injunction directing the 1st defendant to remove the window and split air-conditioners and the generator pipes protruding outside the 26 feet wide passage. and

(c) for costs of the suit and pass such further or other orders as this Hon'ble Court may deem fit and proper and thus render justice.

3. Since a Common Order has been passed in the impugned petitions the revisions are also taken up together and a Common Order passed in all the three Civil Revision Petitions.

4. The parties are described in the same array as in the suit.

5. The plaintiff had filed the suit through her power agent Mr.N.M.A.Noor Mohideen. Along with Plaint, at the time of institution of the suit, a xerox copy of the Power of Attorney dated 09.10.2003 was filed and the suit was numbered. Necessary applications were also filed to permit the power agent to institute the suit on behalf of the plaintiff (Principal).

6. During the trial, the Power Agent was examined as P.W.1 and he was extensively cross examined by the 1st defendant with reference to the validity of Ex.A.1 on the ground that the same has not been adjudicated. The plaintiff on coming to know about this, had executed a supplemental power of attorney dated 11.12.2008 referring to the earlier power of attorney marked as Ex.A.1 and this power of attorney was duly adjudicated on the file of the Sub Registrar, Mylapore, Chennai, in Adjudication No.350/2008 on 29.12.2008.

7. Since the plaintiff had wanted to file this supplemental power of attorney, the impugned applications are taken out by the plaintiff.

8. A common counter was filed by the 1st respondent, in which, they had taken out a defence that the earlier power of attorney was not adjudicated and therefore, not in accordance with law. They further contended that the present petitions have been taken out to fill up the lacunae since P.W.1 had been extensively cross examined with reference to Ex.A.1 and the plaintiff was attempting to dislodge the admissions that the defendant had obtained in his cross examination.

9. Though the respondent Bank has been served in this revision they have not chosen to enter appearance in the matter.

10. Heard the learned counsel appearing for the petitioner and perused the materials on record.

11. It is seen from the records that Ex.A.1 is the power of attorney given in favour of Mr.N.M.A.Noor Mohideen to act on behalf of the plaintiff and he has been authorized to appear in all Courts, sign, execute and attest plaint, written statement, affidavit, engage advocates, etc., It is on the strength of this Power of attorney that the power agent had filed the suit. The said power of attorney was accepted and permission was also granted to the power agent to institute the suit on behalf of the plaintiff. It is seen from the records that the 1st defendant has not questioned the authority of the power agent to institute the suit in the written statement filed by them. The 2nd defendant, who had also filed a written statement, did not question his authority either. It is during the evidence of P.W.1 that this issue has been raised. The petitioner has thereafter prepared a supplemental power of attorney, in which, she has categorically mentioned that the suit O.S.Nos.6238 and 6237 of 2003 on the file of the learned IV Assistant Judge, City Civil Court, Chennai, has been instituted by her power of attorney and she had further ratified all acts done by the power of attorney.

12. The power agent has been described as the son-in-law of the plaintiff. It is therefore evident that the suit has been instituted only on the instructions of the plaintiff. The learned IV Assistant Judge, City Civil Court, Chennai, has proceeded to dismiss these applications by holding that there is no specific power given to the plaintiff in relation to the matter mentioned in the Plaint. As already stated above, the power agent under the earlier power dated 09.10.2003 had been given a clear authority to institute the suits, engage attorneys, sign plaint, written statement, etc., The supplemental power of attorney dated 11.12.2008 not only confirms the filing of the suit O.S.Nos.6237 and 6238 of 2003, but the plaintiff as the Principal has also ratified all the acts that had been done by the agent, on the basis of Ex.A.1-Power Deed which included the filing of the suit. Therefore, the finding of the learned IV Assistant Judge, cannot be countenanced. Further, the principal who had already authorized the power agent to institute and defend the suits has reiterated this in the supplemental power of attorney. Therefore, I find no substance in the order of the learned IV Assistant Judge, City Civil Court, Chennai and the orders in I.A.Nos.19266, 19265 and 19261 of 2009 in O.S.No.6238 of 2003 dated 22.01.2010 are set aside.

13. In the result, these Civil Revision Petitions are allowed. No costs.

Considering the fact that the suit is of the year 2003, the learned IV Assistant Judge, City Civil Court, Chennai, is directed to complete the trial expeditiously not later than a period of six months from the date of receipt of a copy of this order.
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