IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
MISC.CIVIL APPLICATION No 193 of 2003
in
SECOND APPEALNo 117 of 1992
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FAKIRBHAI MANGALBHAI PATEL DECD. THRO' HEIRS & L.R.
Versus
BACHUBHAI VARDHABHAI
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Appearance:
1. Misc.Civil Application No. 193 of 2003
MR PRABHAV A MEHTA for Petitioner No. 1-1/3
.......... for Respondent No. 1-4
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CORAM : MR.JUSTICE KUNDAN SINGH
Date of Order: 02/05/2003
ORAL ORDER
Heard the learned counsel for the petitioner.
2.This is an application for recalling an order
dated 23rd March 2000 passed in Second Appeal No. 117 of
1992 and for restoration of the Second Appeal No. 117 of
1992 on its original file.
3.The contention of the learned counsel for the
petitioner is that power of attorney holder was not given
power to withdraw the appeal hence the order dated 23rd
March 2000 is required to be recalled. He produced a
copy of the power of attorney, wherein, clause 7 states
as under:
“The holder of the power of attorney is also
appointed and authorised on our behalf to deal
with any dispute in any matter, if arises, with
regard to development of the properties described
in the appendix and will be further authorised to
arrive at any compromise or to hold negotiations
in regard to such dispute or to file any
proceedings of nature of civil, criminal, revenue
related proceedings before the Collector or
before any other Court of laws, and further
authorised to appear and file reply before
aforesaid authorities or Court of law as well as
to arrive at compromise or to accept any
settlement, so also, to accept the money,
issuance of the receipts and, would be further
authorised to undertake all other proceedings
relevant in the matter.”
4.The contention of the learned counsel for the
petitioner is that the power of attorney holder was not
authorised to withdraw the proceedings of the Second
Appeal which was pending in this Court. The power of
attorney has been given to prosecute and not to withdraw,
and the Delhi High Court has taken the view that the
prosecution does not include the compromise for
withdrawal of the proceedings and he relied on the
decision of the Delhi High Court reported in the case of
DR. MANMOHAN SINGH DALIWAL V. GURBAX SINGH ARORA AND
OTHERS, 2002 AIH C 275 and it is held therein as under:
“The conspectus of following facts manifestly
show that the fraud played upon the Court is writ
large on the face of the impugned order:
(i)The suit came up for hearing on 26.7.1999
wherein interim injunction was passed and Local
Commissioner for visiting the suit property was
appointed.
(ii)On 8.10.1999 the defendants appeared and
sought time to file the written statement. On
13.3.2000 the defendants again sought the time.
Adjournment was granted subject to cost of
Rs.5,000.00. Case was adjourned for 11.7.2001.
(iii)Though the application under Order 23,
Rule 3, CPC was signed on 10th April but was
filed on 18th April when the case was taken up on
mentioning though the actual date fixed was 11th
July, 2000. Feverish hurry has remained
unexplained.
(iv)Suddenly a new counsel was engaged in
order to keep the earlier counsel in dark about
the compromise and this bares the designs and the
intention of the attorney and the defendants 1 &
2.
(v)The signatures of the attorney appear at
the place meant for the signatures of the
plaintiff and at first glance it gives the
impression as if plaintiff has signed the
application and that is why the Court observed
that the application has been signed by the
plaintiff whereas it was actually signed by the
attorney.
(vi)Merely because the application was
supported by an affidavit of the attorney does
not mean that attorney was conferred the power to
compromise the matter nor does this affidavit
disclose that the application for compromise has
been duly signed by the plaintiff/applicant.
(vii)There was no specific power conferred
upon the attorney to enter into the compromise.
In such cases where the immovable property is to
be sold, vesting of such power in the attorney
becomes more essential. In absence of such a
power, the attorney is precluded from
compromising the suit. Thus the application
under order 23, Rule 3, CPC as well as the
withdrawal of the suit was without any authority
from the plaintiff.”
5.I do not find any substance in the contention of
the learned counsel for the applicant that the person
holding power of attorney was not given the power to
withdraw the suit as no power or consent was given under
the power of attorney to the holder of power of attorney
for the withdrawal of the proceedings. As it would
appear from clause-8 of the power of attorney that all
powers including settlement, compromise and to initiate
proceedings and acceptance of money on behalf of the
appellants in the proceedings have already been given to
the person holding the power of attorney. To prosecute
includes word of withdrawal. If there is any dispute
between the power of attorney and the persons authorising
to exercise the powers that matter can be decided by
appropriate Court of law not by this Court as that matter
can be decided only by giving an opportunity of leading
evidence to the parties concerned. That cannot be
decided by this Court. As in the present case, the
statement was made by the learned counsel on behalf of
the appellant that he does not want to press the appeal
on the instructions of the appellant. Hence, he sought
permission to withdraw the same and the permission was
granted and the appeal was disposed of as withdrawn. As
such, I do not find any good reason for recalling the
order, accordingly, this application is dismissed.
(Kundan Singh,J)
Jayanti*