IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 22.09.2006 CORAM THE HONOURABLE MR.JUSTICE S.MANIKUMAR C.R.P.(NPD) No.1995 of 2005 R.Arjunan ... Petitioner vs. 1. Arunachala Gounder 2. Thirumalaisami 3. Chennimalaisami 4. Thangaraj ... Respondents Prayer : Civil Revision Petition filed under Section 115 C.P.C. against the fair and decretal order passed by the learned District Munsif, Udumalpet, dated 21.09.2004 in E.A.No.318/2004 in E.P.No.14/2004 in O.S.No.169/1996. For Petitioner : Mr.T.M.Hariharan For Respondents : Mr.D.Krishnakumar O R D E R
This Revision Petition is filed against the order passed under Order 3 Rule 3 read with 151 C.P.C.
2. The brief facts leading to the filing of the Revision petition are as follows :
(i) The respondents are the plaintiffs in the suit. The suit is for declaration and permanent injunction in respect of suit schedule properties in S.No.139/9 including the 3 feet channel. The suit has been decreed on 13.03.2003. The defendant and her three sons disobeyed the decree and have caused interference. Consequently, the plaintiffs could not cultivate their lands. On 15.12.2003, the defendant stopped the flow of water through the channel to the plaintiffs’ lands. The defendant did not agree to the decision of the Panchayat also. Since the defendant has deliberately disobeyed the decree for injunction and caused interference, the plaintiffs’ filed a petition in E.P.No.14 of 2004 under Section 55 read with Order 21 Rule 32 C.P.C. for arrest and for detention in civil prison.
(ii) In the said E.P., the defendant’s son, R.Arjunan filed an Execution Application No.318 of 2004, under Order 3 Rule 3 r/w Section 151 C.P.C. to permit him to represent his mother, the defendant, namely Smt.Valliammal, as her Power Agent. In his application, he has stated that his mother has executed Power of Attorney document on 23.04.2002 appointing him as her Power Agent to conduct the above suit on her behalf.
(iii) In the Execution Application, respondents/plaintiffs filed a counter affidavit contending that the E.P. is filed for contempt under Order 21 Rule 32 against the judgment debtor for the personal act committed by the defendant. The remedy sought for is personal and is only against the judgment debtor and that therefore, the Power of Attorney cannot speak on behalf of the judgment debtor. Inasmuch as the accusation is against the defendant, the Power of Attorney has no locus standi to prosecute the Execution Proceedings. Considering the rival submissions made by the parties, the Lower Court dismissed the Execution Application seeking leave to represent the judgment debtor. Aggrieved against the same, the present Revision Petition is filed.
3. Learned counsel for the petitioner contended that the order of the Lower Court suffers from material irregularity in exercise of its jurisdiction. He further submitted that Civil Procedure Code provides that the party can be represented by his Power Agent and that there is no prohibition to represent on behalf of the Principal even in Execution Proceedings for the alleged violation of injunction order. He further submitted that the Power Agent will only put forth the defence of the judgment debtor and that any order passed in the Execution Proceedings will be binding on the judgment debtor. Even in the suit, the Power Agent has represented the judgment debtor and that there was no objection for the same. Therefore, the order of the Lower Court, that the judgment debtor cannot be represented in Execution Proceedings and she must file her pleadings in person is incorrect.
4. On the other hand, Mr.D.Krishnakumar, learned counsel for respondents submitted that the Power Agent can speak only for the purpose for which the Power of Attorney is given and not for personal acts committed by the defendant. Inasmuch as for violation of injunction, arrest and civil detention is sought for, the violator should personally explain to the Court and it cannot be spoken to by the Power of Attorney. He further submitted that the proceedings can be equated to a contempt proceeding.
5. In support of his contention, learned counsel for respondents relied on the judgment reported in Janki Vashdeo Bhojwani and another vs. Indusind Bank Limited and others (2005 (3) MLJ 109), in which the Supreme Court in paragraph 12 has held as follows :
12. O.3, Rules 1 and 2, C.P.C., empowers the holder of power of attorney to “act” on behalf of the principal. In our view the word “acts” employed in O.3, Rules 1 and 2, C.P.C., confines only in respect of “acts” done by the power of attorney holder in exercise of power granted by the instrument. The term “acts” would not include deposing in place and instead of the principal. In other words, 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 the matter which only the principal can have a personal knowledge and in respect of which the principal is entitled to be cross-examined. ”
6. Before adverting to the facts of this case, the provision under Order III Rule 1 C.P.C., permitting the Power Agent to represent the party to the suit is extracted below:
“1. Appearances, etc., may be in person, by recognised agent or by pleader : 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 recognised agent, or by a pleader appearing, applying or acting, as the case may be, on his behalf.
PROVIDED that any such appearance shall, if the court so directs, be made by the party in person. ”
7. An order of injunction is enforced against a party who violates the order and it is not executed. An order of arrest and placing a party in detention is purely personal, based on the personal act of the individual. The accusation is against that individual, who violates the order of the Court. Under such circumstances, it is for the party to lead the evidence to disprove the accusation, as to whether he has violated the order/decree of injunction. In respect of acts committed with personal knowledge, Power of Attorney cannot speak on behalf of the Principal. Therefore, I am of the opinion that it is not permissible to permit the Power of Attorney to represent the principal to appear and let in evidence in respect of acts of personal knowledge.
There is no material irregularity in the order of the Lower Court warranting interference. In the result, the order of the Lower Court is confirmed. Civil Revision Petition is dismissed. No costs. Consequently connected C.M.P.No.17760 of 2005 is closed.
abe
To
1. The District Munsif,
Udumalpet.
2. The Section Officer,
V.R. Section,
High Court of Madras,
Chennai 600 104.
[PRV/8042]