Madras High Court
Mrs. Sujatha Jayakumar, Proprietrix ... vs Karnataka Soaps And Detergents Ltd. ... on 5 January, 2008
Equivalent citations: 2008(2)CTC576, (2008)3MLJ177, AIR 2008 (NOC) 1476 (MAD.)
ORDER K. Venkataraman, J.
1. The present Civil Revision Petition is directed against the order of the learned,XIII Assistant Judge, City Civil Court dated 23.8.2006 made in I.A. No. 4780 of 2006 in O.S. No. 769 of 2003.
2. The defendant in the above referred suit is the petitioner and the plaintiff thereon is the respondent herein. The respondent herein laid the suit against the petitioner herein for recovery of the amount said to be due by the petitioner. In the said suit, the petitioner had taken out an application, in I.A. No. 4780 of 2006 to dismiss the suit. The said application was dismissed by the Court below and the present revision is directed against the said order.
3. In the affidavit filed in support of the application for dismissing the suit the petitioner had averred that the suit has been laid through power of attorney agent, who has verified the plaint and signed the vakalat on behalf of the plaintiff and the plaintiff had also filed an application for leave of the Court to sign and verify the pleadings, which has not been ordered by the trial Court. Hence, the plaintiff cannot maintain the suit as the power of attorney was not permitted to sign the plaint.
4. In the counter affidavit, the respondent herein has stated that while filing the suit, the xerox copy of the power of attorney was filed along with an application under Order III Rule 2 of C.P.C. After verifying the same with the original, the suit was numbered and posted before the Court. The petitioner, who have already filed their written statement did not raise any objection with regard to the maintainability of the suit. Issues were framed and thereafter trial had commenced. P.W. 1 was examined in chief and thereafter on behalf of the petitioner P.W. 1 was cross examined in part. Without completing the cross examination the present application has been filed in order to drag on the proceedings.
5. Mr. C. Ravichandran, learned Counsel appearing for the petitioner and Mr. D. Venkateswaran, learned Counsel appearing for the respondent had made their submissions on the pleadings raised by them in the affidavit and counter affidavit respectively.
6. Mr. C. Ravichandran, learned Counsel appearing for the petitioner contended that since the application filed on behalf of the respondent for permission permitting the power agent to sign and verify the plaint was not ordered by the Court below, the suit itself is liable to be dismissed. For the said proposition, the learned Counsel appearing for the petitioner relied on number of authorities.
7. It is to be seen that the suit had been laid by the respondent M/s. Karnataka Soaps & Detergents Ltd., represented by its Senior Assistant (Accounts) and also the Power of Attorney one S. Muthian. The said power of attorney has signed the vakalat on behalf of the respondent/plaintiff and he has also verified the plaint. It is not the case of the petitioner that the Senior Assistant cannot represent the Karnataka Soaps & Detergents Ltd. Nowhere in the written statement such a plea has been taken. Further more, it is not the case of the petitioner either in the written statement or in the affidavit filed in support of the application that power of attorney was not given to the Senior Assistant. It is also not the case of the petitioner that the application for leave which had been filed to represent the respondent by the power agent was not filed by the petitioner/plaintiff. While so now to plead that the Senior Assistant cannot represent the respondent/plaintiff/company, when once the respondent filed an application for permission under Order III Rule 2 of C.P.C. to represent through power agent can not be entertained. Even if it was not allowed by the Court below, it could only be a curable defect. The mistake in not allowing the application should not be put against the respondent. Further, it has to be seen that the petitioner, who has not raised the above (sic) in the written statement sought to raise only after P.W. 1 was examined in chief and cross examination in part.
8. The decisions that have been cited by the learned Counsel appearing for the petitioner viz.,
1. D. Sornam by Power of Attorney D.A.S Swami v. State of Madras Rep. by Secretary, Health Department Fort St. George, Madras 82 L.W. 54
2. Major K. Mathews (Retd.) v. Registrar General, High Court of Judicature at Madas and Ors. .
3. Hari Om Rajender Kumar and Ors. v. Chief Rationing Officer of Civil Supplies .
4. P.M. Desppa Nayanim Varu and Ors. v. Ramabhaktula Ramiab and Ors.
5. Ram Prasad v. Hari Narain and Ors. may not be of any use to the petitioner since in. those decisions, the question was whether the power of attorney could appear on behalf of the Principal. In the case on hand the power of attorney has signed the vakalat and he has sought permission for defending the case on behalf of the respondent/plaintiff.
9. The other decision cited by the learned Counsel appearing for the petitioner is reported in 1998 1 L.W. 195 Indian Commerce and Industries Private Ltd. v. Swadharma Swarajya Sanga 1998 1 L.W. 195, which has been confirmed by the Division Bench of this Court and the same is reported in 1998 1 L.W. 203 Swadharma Swarajya Sanga v. Indian Commerce and Industries Private Ltd. In that decision the consideration was whether the suit filed by one of the Directors of the Company without any authorisation by the Board of Directors was maintainable or not. The learned single Judge and the Division Bench of this Court in that decision have held that one of the Directors' without authorisation by the Board of Directors cannot maintain the suit but in the case on hand, that is not the position. It is not the case of the petitioner that the Senior Assistant was not authorised by the Board, of Directors to represent the respondent/plaintiff.
10. Yet another decision that has been relied on by the learned Counsel appearing for the petitioner is reported in MD. Munawar Hussain v. Usha Kiran Chit Fonds and Ors. . The said judgment in fact supports the case of the respondent. Para 11 of the said Judgment can be usefully extracted hereunder:
11. From the above said judgment, it is clear that the learned Judge, after making himself clear about the maintainability of the suit has proceeded further. Of course, there is an irregularity in disposing of the suit i.e. before numbering the suit the learned Judge ought to have decided this issue and being satisfied that it is in accordance with Rule 32 of Civil Rules of Practice, he ought to have numbered the suit. In the instant case, of course, he did not follow the said procedure as contemplated under rule 32 and only after numbering the suit has decided the issue. This irregularity in proceeding with the suit may not go to the roots of the case and as such, I am not inclined to accept the contention of the learned Counsel for the petitioner that the very judgment and decree are contrary to Rule 32 of Civil Rules of Practice.
11. Even in the case on hand, though the respondent/plaintiff preferred an application under Order III Rule 2 of the CPC, the Court below has not allowed the application and the suit has been proceeded further. The procedure adopted by the Court below may be irregular but may not go to the root of the case. Even now the Court below can allow the application since the trial is not over.
12. Considering the above facts and circumstances of the case, I am not inclined to interfere with the order of the learned XIII Assistant Judge, City Civil Court, Chennai dated 23.08.2006 made in I.A. No. 4780 of 2006 in O.S. No. 769 of 2003 as there is absolutely no irregularity or infirmity in the said order. In the result, the said order is confirmed. The Civil Revision Petition stands dismissed. Consequently, the connected M.P is closed. However, there is no order as to costs.