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L. Basdev Vs. Krishan Kumar and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtPunjab and Haryana High Court
Decided On
Case NumberSecond Appeal No. 32 of 1951
Judge
Reported inAIR1953P& H160
ActsCode of Civil Procedure (CPC) , 1908 - Order 4, Rule 1
AppellantL. Basdev
RespondentKrishan Kumar and ors.
Appellant Advocate Tek Chand, Adv.
Respondent Advocate H.L. Sarin, Adv.
DispositionAppeal dismissed
Excerpt:
.....high court. it has not made any provision for filing appeal to a division bench against the judgment or decree or order of a single judge. no letters patent appeal shall lie against a judgment/order passed by a single judge in an appeal arising out of a proceeding under a special act. sections 100-a [as inserted by act 22 of 2002] & 104:[dr. b.s. chauhan, cj, l. mohapatra & a.s. naidu, jj] writ appeal held, a writ appeal shall lie against judgment/orders passed by single judge in a writ petition filed under article 226 of the constitution of india. in a writ application filed under articles 226 and 227 of constitution, if any order/judgment/decree is passed in exercise of jurisdiction under article 226, a writ appeal will lie. but, no writ appeal will lie against a..........reversionaryrights. an objection was taken that the plainthad not been properly presented as the powerof attorney in favour of the pleader did notauthorise him to make the presentation. therelevant words of the power of attorney are:'in the above noted case i appoint for prosecution for defence *****lala lakshmi chand advocate * *all actions of the said gentleman will be asif done by myself and will be acceptable toand binding on me * * * *the said gentleman will have the right tosign and verify the plaint, written statement, etc.'in the body of the power of attorney the only person whose name is mentioned is lala lakshmi chand, but underneath it is put down :'i accept the power of attorney. rama kant, pleader. lakshmi chand, advocate.' this is the document which was held to be......
Judgment:

Kapur, J.

1. This is an appeal against an appellate order passed by Mr. Mani Ram reversing the order rejecting the plaint as brought by the plaintiffs.

2. The plaintiffs brought a suit for declaration that the sale of a 'haveli' effected bytheir father was without consideration andnecessity and will not affect their reversionaryrights. An objection was taken that the plainthad not been properly presented as the powerof attorney in favour of the Pleader did notauthorise him to make the presentation. Therelevant words of the power of attorney are:

'In the above noted case I appoint for prosecution for defence *****Lala Lakshmi Chand Advocate * *All actions of the said gentleman will be asif done by myself and will be acceptable toand binding on me * * * *The said gentleman will have the right tosign and verify the plaint, written statement, etc.'

In the body of the power of attorney the only person whose name is mentioned is Lala Lakshmi Chand, but underneath it is put down :

'I accept the power of attorney.

Rama Kant, Pleader.

Lakshmi Chand, Advocate.'

This is the document which was held to be. defective as not giving to Mr. Rama Kant, Pleader (who actually presented the plaint) the power to institute the suit or present the plaint. This objection was given effect to by the trial Court, but on appeal it was held that there was no defect in the presentation of the plaint.

3. This question is not 'res Integra' and has been decided by a Division Bench of the Lahore High Court in -- 'Mt. Barkata v Feroz Khan', 46 Pun LR 96, where it was held that:

'there is no authority for the proposition that a mere act of presentation of a duly signed plaint or a memorandum of appeal by a person under the signatures of a plaintiff or appellant or their duly appointed Pleader or agent requires a written authority from any one of them. Therefore, a plaint or an appeal can be presented by any person other than the appellant or his recognized agent or Pleader.'

I am in respectful agreement with this opinion. Every day we see that appeals in this Court are actually put into the box not by Advocates themselves but by their clerks who have no written authority from the appellants. I am, therefore, of the opinion that the learned Judge has rightly come to the conclusion that there is no defect in the presentation of this petition of plaint and I would dismiss this appeal, but in the circumstances of the case I would leave the parties to bear their own costs throughout. Parties have been directed to appear in the trial Court on 13-10-1952.


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