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HIGH COURT OF MADHYA PRADESH : JABALPUR
First Appeal No. 17/1999
Awadh Raj Singh, S/o Shri Rameshwar Singh
aged about 57 years, Occupation Agriculturist
and contractorship for Shri Rameshwar Singh
S/o Shri Mahadeo Singh aged about 80 years
village Harrai, Tehsil Sirmour District Rewa.
Plaintiff/Appellant
Vs.
1. State of M.P.
through Collector, Rewa
District Rewa (M.P.)
& another
Respondents/Defendants
_________________________________________________________________
For the Appellant :Shri A.K.Pathak, Advocate.
For the respondents : Ku. Kamlesh Tamrakar, Panel Lawyer.
Date of hearing : 09.11.2010
Date of Judgment :
JUDGMENT
As Per : Hon’ble G.S.Solanki, J.
1. Plaintiff/appellant has preferred this appeal under
section 96 of the Code of Civil Procedure, 1908 being
aggrieved by judgment and decree dated 8.9.1998 passed
by Fourth Additional District Judge, Rewa in Civil Suit No.
11-A/98,.
2. The brief facts of the case are that plaintiff/appellant
Awadh Raj Singh filed a suit for and on behalf of his father
Rameshwar Singh against respondents/defendants for
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damages of Rs. 42,550/- including refund of security
deposit of Rs. 2200/-.
3. As per the plaint, respondents invited tenders for
construction of temporary houses in village Budgawana,
Tehsil – Gobadbanas, District Sidhi under Bansagar
Project, Bansagar Colony, Rewa. In response to invitation
of this tender, plaintiff/appellant submitted his tender on
24.2.1983 and deposited a sum of Rs. 2200/- towards
security in Union Bank of India, Rewa. It has been further
pleaded that tender of Rameshwar Singh (father of
appellant) was finally accepted and contract agreement
was executed by him and Executive Engineer/respondent
No. 2 on behalf of State.
4. As per the terms of agreement, the work was to be
completed within a period of three months, therefore, the
Executive Engineer was bound to give lay out of the
proposed construction immediately. The plaintiff/
appellant made necessary preparation by spending a sum
of Rs. 26,000/- for supply of building material and labours
in anticipation of lay out. The Executive Engineer did not
give lay out despite repeated demands, therefore, the
plaintiff/appellant served a written notice on 3.8.1983 to
the Department requesting for lay out, so that the work
could be completed within the stipulated time.
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5. It is further pleaded that respondent Department,
after lapse of 14 months on 7.7.1984, called upon the
plaintiff/appellant to start the work. Since by that time the
costs had escalated beyond any proportion, the
Government of M.P. was not ready to sanction higher
rates. In these circumstances, the plaintiff/appellant filed
a suit for damages after serving the notice under section
80 of the CPC on 1.2.1985 and 5.2.1985 for recovering the
amount of Rs. 42,200/- including the security amount.
6. The defendants/respondents admitted the contents of the
plaint regarding tender agreement and pleaded that lay
out ought to have been supplied up to 20.7.1983 but due
to rainy season, it could not have been supplied to the
plaintiff/appellant. But after end of the rainy season,
respondents informed the appellant vide letter dated
26.11.1983 to start the work and lay out is ready on the
spot but plaintiff/appellant did not comply with the
direction given by the respondents and thereby damage
has been caused to respondents/State. They have further
pleaded that plaintiff filed this false suit to avoid the
recovery of damages by respondents/State.
7. The trial Court on appraisal of evidence on record,
passed the impugned judgment and decree and dismissed
the suit holding that Awadh Raj Singh had not entered
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into any contract, thus, he has no right to file the suit on
behalf of his father Rameshwar Singh. The trial Court also
held that suit is not maintainable for want of notice under
section 80 of the CPC. Being aggrieved thereby the
instant appeal has been preferred by the
appellant/plaintiff.
8. Learned counsel for the appellant has submitted that the
trial Court has erred in holding that Awadh Raj Singh had
not entered into any contract, thus, he has no right to file
the suit on behalf of his father Rameshwar Singh, as in
the cause title of the plaint, it has been clearly mentioned
that Awadh Raj Singh filed the suit as attorney for and on
behalf of his father Rameshwar Singh. Counsel has
further submitted that respondents did not object the
capacity of Awadh Raj Singh to file the suit on any ground
whatsoever, therefore, no inference against the plaintiff
could have been drawn for not filing the power of
attorney. He has further submitted that the pleading
regarding the notice under section 80 of the CPC was not
specifically denied by the respondents, thus, service of
notice under section 80 of the CPC was admitted fact and
suit could not be dismissed for want of notice under
section 80 of the CPC, hence impugned judgment and
decree passed by the trial Court be set aside and suit be
decreed with costs against the respondents.
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9. On the other hand learned Panel Lawyer appearing on
behalf of respondents/State has submitted that the suit
was not properly framed. Awadh Raj Singh was not
authorized to file the suit on behalf of his father
Ramwshwar Singh. She has further submitted that Awadh
Raj Singh cannot depose in place and instead of principal
(Rameshwar Singh), thus Awadh Raj Singh has failed to
establish the execution of contract as well as service of
notice under section 80 of the CPC, therefore, the trial
Court rightly dismissed the suit.
10. I have perused the record of the trial Court, evidence
recorded and other material on record. It is true that
pleading in regard to notice under section 80 of the CPC
was not specifically denied, therefore, it amounts to an
admitted fact regarding notice under section 80 of the
CPC and in case the plaintiff/appellant has failed to
exhibit the said notice on record, it cannot be said that
notice was not served on the respondents. In these
circumstances, the finding regarding the non service of
notice under section 80 of the CPC on respondents cannot
be said to be sustainable in the eyes of law.
11. Coming to the question whether Awadh Raj Singh is
entitled to file suit on behalf of his father Rameshwar
Singh or not; it is true that in the cause title of plaint it
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was mentioned that Awadh Raj Singh filed the suit on
behalf of his father Rameshwar Singh, but Awadh Raj
Singh did not file any power of attorney along with the
suit, thus the suit was not properly framed and in the
absence of any power of attorney, Awadh Raj Singh
cannot be said to be recognized agent of Rameshwar
Singh as provided under Order 3 Rule 1 and 2 of the CPC.
It is also pertinent to mention here that Rameshwar Singh
had not entered into the witness box, only Awadh Raj
Singh deposed on behalf of his father Rameshwar Singh
regarding tender and execution of contract.
12. It is provided under Order 3 Rule 1 and 2 of CPC that a
holder of power of attorney can act on behalf of principal
but the term ‘act’ would not include deposing in place and
instead of principal. If the power of attorney holder has
rendered some acts in pursuance to power of attorney, he
may depose for the principal in respect of such acts but he
cannot depose for the principal for the acts done by the
principal and not by him. Similarly he cannot depose for
the principal in respect of matter of which only the
principal can have a personal knowledge and in respect of
which the principal is entitled to be cross-examined.
13. In the instant case, firstly there is no power of
attorney in favour of Awadh Raj Singh and secondly
Awadh Raj Singh cannot depose for his father Rameshwar
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Singh in respect of filing of tender and execution of
contract for which only Rameshwar Singh can have a
personal knowledge and only Rameshwar Singh is entitled
to be cross-examined. Further more, Awadh Raj Singh
himself has admitted all these facts in Paras 10 and 11 of
his cross examination. Further Chhotelal (PW-2),
Ramsumiran Vishwakarma (PW-3), Lalmani (PW-4) and
Ayodhya (PW-5) deposed in regard to Awadh Raj Singh.
None of them stated about principal plaintiff Rameshwar
Singh. In this way, plaintiff has utterly failed to prove his
case.
14. In Janki Vashdeo Bhojwani and another Vs.
Indusind Bank Ltd. And others – AIR 2005 SC 439,
the Apex Court held that the power of attorney holder
cannot depose in place and instead of principal. The ratio
of the aforesaid case is fully applicable in the instant case.
15. In view of the aforesaid, it is clear that the plaintiff has
failed to prove his case. No case is made out to make
interference in the judgment and decree passed by the
trial Court. The appeal is liable to be dismissed, same is
hereby dismissed. Plaintiff/appellant to bear his own cost
as well as cost of respondents. Advocate’s fee as per
schedule or as per certificate (which is less).
16. Decree be drawn accordingly.
(G.S.Solanki)
Judge
PB