The Lakshmi Mills Co. Ltd. Rep. by Its Managing Director Vs. R. Ramajaam, - Court Judgment

Excerpt:
- t.n. estates (abolition & conversion into ryotwari) act, 1948 [act no. 26/1948]. sections 5(2) & 67; [a.p. shah, cj, mrs. prabha sridevan & p. jyothimani, jj] suo motu revisional powers held, on a bare reading of the provisions of section 5(2) of the act, it is clear that the power conferred on the director by section 5(2) to cancel or revise any of the orders, acts or proceedings of the settlement officer is very wide. in the first place, the director need not necessarily be moved by any party in that behalf, and the power could be exercised either on an application by an aggrieved person or suo motu. for example, if the director comes to know that contrary to the scheme of the act or due to misrepresentation or fraud played, a patta had been granted to a person under the relevant provisions of the act, then to set right that mistake, the director should be enabled to exercise his power so as to effectuate the scheme of the act and to implement the purpose behind the act. the fact that the rule making authority has prescribed procedure in exercise of the powers under section 67 for making an application to the director does not mean that the suo motu power which is explicit in section 5(2) of the act is in any way curtailed or taken away. therefore, the contention of the respondent that making an application is sine qua non for invoking the power under section 5(2) of the act is not tenable. -- t.n. estates (abolition & conversion into ryotwari) act, 1948. sections 5(2) & 67; suo motu revisional powers held, on a bare reading of the provisions of section 5(2) of the act, it is clear that the power conferred on the director by section 5(2) to cancel or revise any of the orders, acts or proceedings of the settlement officer is very wide. in the first place, the director need not necessarily be moved by any party in that behalf, and the power could be exercised either on an application by an aggrieved person or suo motu. for example, if the director comes to know that contrary to the scheme of the act or due to misrepresentation or fraud played, a patta had been granted to a person under the relevant provisions of the act, then to set right that mistake, the director should be enabled to exercise his power so as to effectuate the scheme of the act and to implement the purpose behind the act. the fact that the rule making authority has prescribed procedure in exercise of the powers under section 67 for making an application to the director does not mean that the suo motu power which is explicit in section 5(2) of the act is in any way curtailed or taken away. therefore, the contention of the respondent that making an application is sine qua non for invoking the power under section 5(2) of the act is not tenable. orderk.k. sasidharan, j.1. this civil revision petition is directed against the order dated 27.11.2007 in i.a. no. 1060 of 2007 in o.s. no. 705 of 2007 on the file of the learned subordinate judge, coimbatore whereby and whereunder the fourth respondent was permitted to represent respondents 1 to 3 in the suit in o.s. no. 705 of 2007.2. the petitioner is the sole defendant in o.s. no. 705 of 2007 before the learned subordinate judge, coimbatore.the facts in nutshell:3. the suit was filed by the respondents against the revision petitioner praying for a judgment and decree to restrain the revision petitioner, their men and agents from alienating or encumbering the suit property and for other incidental reliefs.4. in the short cause title as well as long cause title, the fourth respondent has indicated that he was representing respondents 1 to 3. the verification of the plaint was also made by the fourth respondent in his capacity as the authorised agent of respondents 1 to 3 as well as in his individual capacity.5. the suit was contested by the revision petitioner by filing written statement. while denying the allegations and averments as contained in the plaint the revision petitioner has also contended that the alleged power of attorney in favour of the fourth respondent was a result of manipulation, forgery and as such it was invalid. they have also stated that no notice was issued to them before permitting the fourth respondent to represent the interest of respondents 1 to 3 in the suit. the revision petitioner in para 10 of the written statement specifically contended that no power of attorney has been filed in the manner known to law and as such it was not open to the fourth respondent to file a petition to recognize him as power agent of respondents 1 to 3.6. the fourth respondent appears to have filed an application in i.a. no. 1060 of 2007 with a prayer to grant him permission to file the suit on behalf of respondents 1 to 3. the said application was filed under order 3 rule 1 and 2 of the code of civil procedure.7. it was the grievance of the revision petitioner that though caveat was lodged by them, no notice was given in the said application so as to enable them to contest the matter.8. the learned trial judge passed the following order on 27.11.2007 in i.a. no. 1060 of 2007.i.a. 1060/2007o.s. no. 705/2007under order 39 1 & 2 of cpcpetition pray to permit them to file suit on behalf of plaintiffs 1 and 3. affidavit filed.permittedsd/-x x psj 27.11.20079. the order dated 27.11.2007 is the subject matter of challenge in the civil revision petition.submissions:10. the learned counsel appearing on behalf of the revision petitioner contended that the fourth respondent has not filed the so called power of attorney before the trial court, so as to enable him to represent the respondents 1 to 3 in the suit. according to the learned counsel the first respondent was not in favour of filing a suit against the revision petitioner which was also evident from the letter addressed to the petitioner by him on 11.10.2006 wherein a reference was made about the earlier suit in o.s. no. 1881 of 2005. in the said letter, the first respondent has clearly stated that he was sorry for the inconvenience caused to the petitioner and requested them to co-operate with him to settle the matter. the learned counsel further contended that the provisions of order 3 rules 1 and 2 read with rule 16 of the civil rules of practice was not complied with in the matter and the learned trial judge was not justified in permitting the fourth respondent to file the suit to conduct the proceedings on behalf of respondents 1 to 3. the learned counsel further contended that the letter addressed to the revision petitioner by the first respondent on 11.10.2006 was long after the agreement dated 28.9.2005 and as such there was a serious doubt about the competency of the fourth respondent to represent the first respondent.11. the learned senior counsel appearing on behalf of the respondents contended that the order was passed as early as on 27.11.2007 and there were series of proceedings between the parties during the interregnum and as such it was not permissible for the petitioner to challenge the order by way of a revision under article 227 of the constitution of india at a later point of time. the learned senior counsel placed reliance on the agreement stated to have been executed between the respondents on 28.9.2005 which contains a clause permitting the fourth respondent to take legal action on behalf of respondents 1 to 3. the learned senior counsel also contended that the issue regarding the representative capacity has to be decided only in the trial and it was not permissible for the petitioner to challenge the issue by way of a revision under article 227 of the constitution of india.discussion:12. the plaint in o.s. no. 705 of 2007 was preferred by the fourth respondent in his individual capacity as well as the agent of respondents 1 to 3.13. order 3 rule 1 provides that any appearance, application or act in or to any court, required or authorized by law to be made or done by a party in such court, may, except where otherwise expressly provided by any law for the time being in force, be made or done by the party in person, or by his recognized agent, or by a pleader (appearing, applying or acting, as the case may be) on his behalf. rule 2 of order 3 indicates as to who are all the recognised agents of parties by whom such appearances as made mentioned in rule 1 of order 3 could be made. the said provision would read thus:recognized agents:the recognized agent of parties by whom such appearances, applications and acts may be made or done are-(a) persons holding powers-of-attorney, authorizing them to make and do such appearances, applications and acts on behalf of such parties;(b) persons carrying on trade or business for and in the names of parties not resident within the local limits of the jurisdiction of the court within which limits the appearance, application or act is made or done, in matters connected with such trade or business only, where no other agent is expressly authorized to make and do such appearances, applications and acts.14. the civil rules of practice also contains provision with respect to the appearance of parties through agents. rule 16 as contained part i of civil rules of practice would read thus:16. party appearing by agent:(1) when a party appears by an agent other than a pleader or advocate, the agent shall before making or doing any appearance, application, or act, in or to the court, file in court the power of attorney, or written authority, thereunto authorizing him, or a properly authenticated copy thereof/or, in the case of an agent carrying on a trade or business on behalf of a party, without a written authority, an affidavit stating the residence of his principal, the trade or business carried on by the agent on his behalf and the connection of the same with the subject matter of the suit and that no other agent is expressly authorized to make or do such appearance, appellation or act.(2) the judge may thereupon record in writing that the agent, is permitted to appear and act on behalf of the party, and unless and until the said permission is granted no appearance, application or act, of the agent shall be recognized by the court.15. the fourth respondent has filed the suit in his capacity as agent of respondents 1 to 3. obviously, he was claiming to be an attorney within the meaning of rule 2(a) of order 3. a conjoint reading of the provisions of order 3 rules 1 and 2 along with rule 16 of the civil rules of practice clearly shows that the power of attorney has to be produced before the trial court and a specific order has to be passed by the judge permitting the power agent to appear on behalf of the party. there is no question of permitting the party to represent the interest of another in a civil suit unless such authorization was produced before the court. in case a person was permitted to represent the plaintiffs in a suit without there being a document within the meaning of order 3 rule 2(a) it would ultimately result in a serious situation to the plaintiffs inasmuch as any decree passed in such suit would be binding on the plaintiffs on account of the permission granted by the court to the agent to file the suit and to conduct the proceedings.16. therefore while considering the application filed by the agent for permission to file the suit as a power agent, the court was required to consider the affidavit filed in support of the application as well as the power of attorney and an order should be passed upon such consideration. the provisions of order 3 rule 1 read with rule 16 of the civil rules of practice cannot be considered as an empty formality. unless authority is given to a person to represent the interest of a party to the suit, it is not possible for him to come on record. therefore the satisfaction of the court is of paramount importance to enable the agent to represent the principal.17. the affidavit filed in support of the application in i.a. no. 1060 of 2007 does not contain any averment as to whether the fourth respondent was given a power of attorney to file the suit on behalf of respondents 1 to 3. in the affidavit he has only stated that as per the agreement he was permitted to file the suit. the said agreement is found to be enclosed as document no. 20 along with the plaint. however nothing was indicated in the impugned order to show as to whether the learned trial judge has considered the said document and the permission was granted only on a perusal of the document in question.18. the learned trial judge appears to have the impression that the requirement as contained in order 3 rule 1 and 2 of the code of civil procedure was an empty formality and there was no requirement to pass a judicial order. when the statute says that a particular thing has to be done in a particular manner, it has to be done in that particular manner only. the order of the learned trial judge contains no reason, much less justifiable reasons to permit the fourth respondent to represent respondents 1 and 3 by way of signing the pleadings and the conduct of suit.19. the application filed for obtaining permission to represent a party in a suit or other proceeding muar be accompanied by an affidavit of the power agent, and the affidavit should contain a solemn affirmation that as per the power of attorney executed by the principal,he was authorized to sign the pleadings and to represent such principal. it should also contain averments that the power of attorney is still in force and to the best of his knowledge and information the same has not been revoked. the affidavit should contain such essential details, as otherwise, it would be impossible for the court to decide the application.20. the affidavit filed in support of the application in i.a. no. 1060 of 2007 does not contain the details regarding the nature of agreement, the date of agreement and the scope of authority so as to enable the fourth respondent to sign the pleadings and to represent respondents 1 to 3 in the said suit. no such document was marked in i.a. no. 1060 of 2007. in fact, the document was annexed to the plaint as document no. 20 and nothing was indicated in the order as to whether the trial court has ever seen the said document. therefore there was total non application of mind and the learned trial judge has mechanically allowed the application under order 3 rule 1 of the code of civil procedure.21. the defect pointed out by the revision petitioner goes to the root of the matter and as such the technical objection with regard to the maintainability of the revision has no force. this court is bound to correct the jurisdictional errors committed by the trial court, when it was brought to the notice of the court when the lower court acts perversely and arbitrarily, necessarily interference by this court is warranted.22. in kishore kumar khaitan v. praveen kumar singh : 2006(2) scale 304 : (2006) 3 scc 312 the supreme court indicated the extent of jurisdiction under article 227 of the constitution of india thus:13. the jurisdiction under article 227 of the constitution may be restrictive in the sense that it is to be invoked only to correct errors of jurisdiction. but when a court asks itself a wrong question or approaches the question in an improper manner, even if it comes to a finding of fact, the said finding of fact cannot be said to be one rendered with jurisdiction and it will still be amenable to correction at the hands of the high court under article 227 of the constitution. the failure to render the necessary findings to support its order would also be a jurisdictional error liable to correction.(emphasis supplied)23. the supreme court in p.k. palanisamy v. n. arumugham : 2009(10) scale 79 indicated that though the defendant has no say before registering the plaint, it would be possible to question the orders at a later stage of the litigation. the following paragraph would make the position clear.10. we have, however, serious reservations as to whether the civil court could hear a defendant before registering a plaint. the code does not envisage such a situation. when a suit is filed, the civil court is bound by the procedures laid down in the code. the defendant upon appearing, however, in certain situations may question the orders passed by the civil court at a later stage.conclusion:24. in the result, the order dated 27.11.2007 in i.a. no. 1060 of 2007 is set aside and the matter is remitted to the learned trial judge for fresh consideration. the learned trial judge is also directed to issue notice to respondents 1 to 3 with respect to the application filed by the fourth respondent to permit him to act as their power agent. the said course is necessary on account of the dispute raised by the revision petitioner in the light of the communication sent by the first respondent to the revision petitioner on 11.10.2006.25. the civil revision petition is allowed accordingly. consequently the connected mp is closed. no costs.

Judgment:
ORDER

K.K. Sasidharan, J.

1. This civil revision petition is directed against the order dated 27.11.2007 in I.A. No. 1060 of 2007 in O.S. No. 705 of 2007 on the file of the learned Subordinate Judge, Coimbatore whereby and whereunder the fourth respondent was permitted to represent respondents 1 to 3 in the suit in O.S. No. 705 of 2007.

2. The petitioner is the sole defendant in O.S. No. 705 of 2007 before the learned Subordinate Judge, Coimbatore.

The Facts in Nutshell:

3. The suit was filed by the respondents against the revision petitioner praying for a judgment and decree to restrain the revision petitioner, their men and agents from alienating or encumbering the suit property and for other incidental reliefs.

4. In the short cause title as well as long cause title, the fourth respondent has indicated that he was representing respondents 1 to 3. The verification of the plaint was also made by the fourth respondent in his capacity as the authorised agent of respondents 1 to 3 as well as in his individual capacity.

5. The suit was contested by the revision petitioner by filing written statement. While denying the allegations and averments as contained in the plaint the revision petitioner has also contended that the alleged power of attorney in favour of the fourth respondent was a result of manipulation, forgery and as such it was invalid. They have also stated that no notice was issued to them before permitting the fourth respondent to represent the interest of respondents 1 to 3 in the suit. The revision petitioner in para 10 of the written statement specifically contended that no power of attorney has been filed in the manner known to law and as such it was not open to the fourth respondent to file a petition to recognize him as power agent of respondents 1 to 3.

6. The fourth respondent appears to have filed an application in I.A. No. 1060 of 2007 with a prayer to grant him permission to file the suit on behalf of respondents 1 to 3. The said application was filed under Order 3 Rule 1 and 2 of the Code of Civil Procedure.

7. It was the grievance of the revision petitioner that though caveat was lodged by them, no notice was given in the said application so as to enable them to contest the matter.

8. The learned trial Judge passed the following order on 27.11.2007 in I.A. No. 1060 of 2007.

I.A. 1060/2007

O.S. No. 705/2007

Under Order 39 1 & 2 of CPC

Petition pray to permit them to file suit on behalf of plaintiffs 1 and 3. Affidavit filed.

Permitted

Sd/-

x x PSJ 27.11.2007

9. The order dated 27.11.2007 is the subject matter of challenge in the civil revision petition.

Submissions:

10. The learned Counsel appearing on behalf of the revision petitioner contended that the fourth respondent has not filed the so called power of attorney before the trial Court, so as to enable him to represent the respondents 1 to 3 in the suit. According to the learned Counsel the first respondent was not in favour of filing a suit against the revision petitioner which was also evident from the letter addressed to the petitioner by him on 11.10.2006 wherein a reference was made about the earlier suit in O.S. No. 1881 of 2005. In the said letter, the first respondent has clearly stated that he was sorry for the inconvenience caused to the petitioner and requested them to co-operate with him to settle the matter. The learned Counsel further contended that the provisions of Order 3 Rules 1 and 2 read with Rule 16 of the Civil Rules of Practice was not complied with in the matter and the learned trial Judge was not justified in permitting the fourth respondent to file the suit to conduct the proceedings on behalf of respondents 1 to 3. The learned Counsel further contended that the letter addressed to the revision petitioner by the first respondent on 11.10.2006 was long after the agreement dated 28.9.2005 and as such there was a serious doubt about the competency of the fourth respondent to represent the first respondent.

11. The learned Senior Counsel appearing on behalf of the respondents contended that the order was passed as early as on 27.11.2007 and there were series of proceedings between the parties during the interregnum and as such it was not permissible for the petitioner to challenge the order by way of a revision under Article 227 of the Constitution of India at a later point of time. The learned Senior Counsel placed reliance on the agreement stated to have been executed between the respondents on 28.9.2005 which contains a Clause permitting the fourth respondent to take legal action on behalf of respondents 1 to 3. The learned Senior Counsel also contended that the issue regarding the representative capacity has to be decided only in the trial and it was not permissible for the petitioner to challenge the issue by way of a revision under Article 227 of the Constitution of India.

Discussion:

12. The plaint in O.S. No. 705 of 2007 was preferred by the fourth respondent in his individual capacity as well as the agent of respondents 1 to 3.

13. Order 3 Rule 1 provides that any appearance, application or act in or to any Court, required or authorized by law to be made or done by a party in such Court, may, except where otherwise expressly provided by any law for the time being in force, be made or done by the party in person, or by his recognized agent, or by a pleader (appearing, applying or acting, as the case may be) on his behalf. Rule 2 of Order 3 indicates as to who are all the recognised agents of parties by whom such appearances as made mentioned in Rule 1 of Order 3 could be made. The said provision would read thus:

Recognized Agents:

The recognized agent of parties by whom such appearances, applications and acts may be made or done are-

(a) persons holding powers-of-attorney, authorizing them to make and do such appearances, applications and acts on behalf of such parties;

(b) persons carrying on trade or business for and in the names of parties not resident within the local limits of the jurisdiction of the Court within which limits the appearance, application or act is made or done, in matters connected with such trade or business only, where no other agent is expressly authorized to make and do such appearances, applications and acts.

14. The Civil Rules of Practice also contains provision with respect to the appearance of parties through agents. Rule 16 as contained Part I of Civil Rules of Practice would read thus:

16. Party appearing by agent:

(1) When a party appears by an agent other than a pleader or advocate, the agent shall before making or doing any appearance, application, or act, in or to the court, file in court the power of attorney, or written authority, thereunto authorizing him, or a properly authenticated copy thereof/or, in the case of an agent carrying on a trade or business on behalf of a party, without a written authority, an affidavit stating the residence of his principal, the trade or business carried on by the agent on his behalf and the connection of the same with the subject matter of the suit and that no other agent is expressly authorized to make or do such appearance, appellation or act.

(2) The judge may thereupon record in writing that the agent, is permitted to appear and act on behalf of the party, and unless and until the said permission is granted no appearance, application or act, of the agent shall be recognized by the court.

15. The fourth respondent has filed the suit in his capacity as agent of respondents 1 to 3. Obviously, he was claiming to be an attorney within the meaning of Rule 2(a) of Order 3. A conjoint reading of the provisions of Order 3 Rules 1 and 2 along with Rule 16 of the Civil Rules of Practice clearly shows that the power of attorney has to be produced before the trial court and a specific order has to be passed by the judge permitting the power agent to appear on behalf of the party. There is no question of permitting the party to represent the interest of another in a civil suit unless such authorization was produced before the court. In case a person was permitted to represent the plaintiffs in a suit without there being a document within the meaning of Order 3 Rule 2(a) it would ultimately result in a serious situation to the plaintiffs inasmuch as any decree passed in such suit would be binding on the plaintiffs on account of the permission granted by the court to the agent to file the suit and to conduct the proceedings.

16. Therefore while considering the application filed by the agent for permission to file the suit as a power agent, the court was required to consider the affidavit filed in support of the application as well as the power of attorney and an order should be passed upon such consideration. The provisions of Order 3 Rule 1 read with Rule 16 of the Civil Rules of Practice cannot be considered as an empty formality. Unless authority is given to a person to represent the interest of a party to the suit, it is not possible for him to come on record. Therefore the satisfaction of the court is of paramount importance to enable the agent to represent the principal.

17. The affidavit filed in support of the application in I.A. No. 1060 of 2007 does not contain any averment as to whether the fourth respondent was given a power of attorney to file the suit on behalf of respondents 1 to 3. In the affidavit he has only stated that as per the agreement he was permitted to file the suit. The said agreement is found to be enclosed as document No. 20 along with the plaint. However nothing was indicated in the impugned order to show as to whether the learned trial Judge has considered the said document and the permission was granted only on a perusal of the document in question.

18. The learned trial Judge appears to have the impression that the requirement as contained in Order 3 Rule 1 and 2 of the Code of Civil Procedure was an empty formality and there was no requirement to pass a judicial order. When the statute says that a particular thing has to be done in a particular manner, it has to be done in that particular manner only. The order of the learned trial Judge contains no reason, much less justifiable reasons to permit the fourth respondent to represent respondents 1 and 3 by way of signing the pleadings and the conduct of suit.

19. The application filed for obtaining permission to represent a party in a suit or other proceeding muar be accompanied by an affidavit of the power agent, and the affidavit should contain a solemn affirmation that as per the power of attorney executed by the principal,he was authorized to sign the pleadings and to represent such principal. It should also contain averments that the power of attorney is still in force and to the best of his knowledge and information the same has not been revoked. The affidavit should contain such essential details, as otherwise, it would be impossible for the court to decide the application.

20. The affidavit filed in support of the application in I.A. No. 1060 of 2007 does not contain the details regarding the nature of agreement, the date of agreement and the scope of authority so as to enable the fourth respondent to sign the pleadings and to represent respondents 1 to 3 in the said suit. No such document was marked in I.A. No. 1060 of 2007. In fact, the document was annexed to the plaint as document No. 20 and nothing was indicated in the order as to whether the trial court has ever seen the said document. Therefore there was total non application of mind and the learned trial Judge has mechanically allowed the application under Order 3 Rule 1 of the Code of Civil Procedure.

21. The defect pointed out by the revision petitioner goes to the root of the matter and as such the technical objection with regard to the maintainability of the revision has no force. This court is bound to correct the jurisdictional errors committed by the trial Court, when it was brought to the notice of the court when the lower court acts perversely and arbitrarily, necessarily interference by this Court is warranted.

22. In Kishore Kumar Khaitan v. Praveen Kumar Singh : 2006(2) Scale 304 : (2006) 3 SCC 312 the Supreme Court indicated the extent of jurisdiction under Article 227 of the Constitution of India thus:

13. The jurisdiction under Article 227 of the Constitution may be restrictive in the sense that it is to be invoked only to correct errors of jurisdiction. But when a court asks itself a wrong question or approaches the question in an improper manner, even if it comes to a finding of fact, the said finding of fact cannot be said to be one rendered with jurisdiction and it will still be amenable to correction at the hands of the High Court under Article 227 of the Constitution. The failure to render the necessary findings to support its order would also be a jurisdictional error liable to correction.

(Emphasis supplied)

23. The Supreme Court in P.K. Palanisamy v. N. Arumugham : 2009(10) Scale 79 indicated that though the defendant has no say before registering the plaint, it would be possible to question the orders at a later stage of the litigation. The following paragraph would make the position clear.

10. We have, however, serious reservations as to whether the civil court could hear a defendant before registering a plaint. The code does not envisage such a situation. When a suit is filed, the civil court is bound by the procedures laid down in the code. The defendant upon appearing, however, in certain situations may question the orders passed by the Civil Court at a later stage.

Conclusion:

24. In the result, the order dated 27.11.2007 in I.A. No. 1060 of 2007 is set aside and the matter is remitted to the learned trial Judge for fresh consideration. The learned trial Judge is also directed to issue notice to respondents 1 to 3 with respect to the application filed by the fourth respondent to permit him to act as their power agent. The said course is necessary on account of the dispute raised by the revision petitioner in the light of the communication sent by the first respondent to the revision petitioner on 11.10.2006.

25. The civil revision petition is allowed accordingly. Consequently the connected MP is closed. No costs.