IN THE HIGH COURT OF KERALA AT ERNAKULAM
CRP.No. 115 of 2008()
1. SANKAR, S/O. LATE MADHAVAN NAIR,
... Petitioner
2. KANAKAVALLI, W/O. SANKAR, AGED 60,
Vs
1. T.K.MANIKANTAN NAIR @ T.K.M.NAIR,
... Respondent
For Petitioner :SRI.K.B.PRADEEP
For Respondent :SRI.M.BALAGOVINDAN
The Hon'ble MR. Justice M.SASIDHARAN NAMBIAR
Dated :06/08/2008
O R D E R
M. SASIDHARAN NAMBIAR, J
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C.R.P. NO. 115 of 2008
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Dated this 6th day of August, 2008.
O R D E R
This petition is filed under Section 151 of Code of Civil Procedure
challenging the order passed by Additional Sub Court,
Thiruvananthapuram in I.A. No.675 of 2007. Petitioners are the
defendents in the suit. The suit was originally instituted by the
respondent through the Power of Attorney holder. Subsequently
respondent cancelled the Power of Attorney and filed a vakalath before
the Court on 27-6-2005. Hence from 27.6.2005 suit was being
contested by the respondent without the power of attorney. While so
on 20.11.2006 suit was dismissed on a memo filed by the Power of
Attorney Holder stating that suit is not pressed. Finding that suit
was dismissed on the basis of the memo, respondent filed I.A.No.675
of 2007 to restore the suit contending that the learned Sub Judge
should not have dismissed the suit on a memo filed by the Power of
Attorney Holder, when the power of attorney was revoked and
respondent himself was contesting the suit. Petitioners opposed the
application contending that the Court has no inherent jurisdiction to
restore the suit and remedy of the petitioner the respondent is not
under Section 151 of Code of Civil Procedure.
2. Learned Sub Judge, under the impugned order, allowed
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the petition on payment of cost of Rs.750/-. The order is challenged in
this petition.
3. Learned counsel appearing for the petitioner and the
respondent were heard.
4. The arguement of the learned counsel appearing for the
petitioners is that suit was dismissed as not pressed and hence it is a
decree and remedy of the respondent is only to file an appeal and
trial Court should not have restored the suit invoking the powers under
Section 151 of Code of Civil Procedure and therefore, the impugned
order is illegal and irregular. Based on the Division Bench decision of
the Court in Mohammed Master v. Abu Haji (1981 KLT 578)
learned counsel appearing for the respondent pointed out that suit
was dismissed as not pressed on the submission made by the
respondent and it is a decree. But that memo was filed at a time
when the respondent was contesting the suit of his own after
cancelling the power of attorney and in such circumstances there is no
illegality or irregularity in the impugned order.
5. Though respondent had originally instituted the suit
through Power of Attorney Holder, the impugned order shows that
after cancelling the power of attorney executed in favour of the Power
of Attorney Holder, who instituted the suit on behalf of the respondent,
respondent filed a Vakalath on 27.6.2005. Therefore, from that date
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the power of attorney holder has no authority to act on behalf of the
respondent. The suit was dismissed accepting the memo filed by the
Power of Attoreny Holder on 20.11.2006. The Court should not have
accepted the said not pressed memo filed by the Power of attorney
holder when he has no authority to do so. It is finding that a
mistake apparent on the face of record was committed learned Sub
Judge invoked the inherent power provided under Section 151 and
restored the suit to file. When the Court found that it has committed
an apparent error in accepting a memo filed by the Power of Attorney
Holder subsequent to cancellation of the power of attoreny, the Court
has only corrected the mistake by exercising the inherent power. I do
not find any illegality or irregularity in that order. This revision petition
is dismissed.
M. SASIDHARAN NAMBIAR,
JUDGE
bps
CRP:115/2008
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