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Smt. Shail Devi Saraf vs Smt. Janakibai Gupta on 30 October, 2001

Chattisgarh High Court
Smt. Shail Devi Saraf vs Smt. Janakibai Gupta on 30 October, 2001
Equivalent citations: 2001 (5) MPHT 52 CG
Author: Fakhruddin
Bench: Fakhruddin

ORDER

Fakhruddin, J.

1. The applicant/plaintiff has filed suit for eviction against the non applicant/defendant. In the said suit, Mukhtyarnama executed by the applicant in favour of her husband was sought to be brought on record, but by impugned order dated 6-2-2001, the said prayer has been rejected. The plaintiff filed an application under Section 151 C.P.C. before the trial Court praying that she is a Parda Nashin lady and she generally remains sick, as such her husband Shankar Lal be permitted to act, appear and plead on her behalf in the suit. The said prayer was objected by the defendant on the ground that she is neither Parda Nashin lady nor is sick.

2. The learned trial Judge rejected the said prayer of the applicant on the ground that the suit has been filed by her and Mukhtyarnama contained the photograph and as such she does not appear to be a Parda Nashin lady. It is also mentioned that the material regarding her sickness has not been produced and as such the application for taking Mukhtyarnama has been rejected.

3. Counsel for the applicant relied on the provisions of Power of Attorney Act. Section 2 of the Power of Attorney Act is pertinent to quote here which reads as under:

“2-Execution under power-of-attorney :– The donee of a power-of-attorney may, if he thinks fit, execute or do any instrument or thing in and with his own name and signature, and own seal, where sealing is required, by the authority of the donor of the power, and every instrument and thing so executed and done, shall be as effectual in law as if it had been executed or done by the donee of the power in the name, and with the signature and seal, of the donor thereof.

This section applies to powers-of-attorney created by instruments executed either before or after this Act comes into force.” So far as the power-of-attorney is concerned, the power-of- attorney is the instrument by which a person is authorized to act as the agent of the person granting it. Section 2 of the power-of-attorney Act quoted hereinabove empowers the donee of an attorney to do anything “in and with his own name and his signature”, by the authority of the donor of the power. This Section declares that everything so done “shall be as effectual in law as if it has been done by the donee of the power in the name and with the signature of the donor thereof and as such the act committed by the holder of the power-of-attorney would be presumed to be an act committed by the person who gives power-of- attorney.

4. It is also relevant here to quote Order 3 Rule 2 of the Code of Civil Procedure. It reads as under :-

ORDER 3 Rule 2 : Recognised Agents :– The recognized agents of parties by whom such appearances, applications and acts may be made or done are –

(a) persons holding power 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 between 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.

5. The appointment of attorney may be required or necessitated for various reasons. Especially in modern day of life and globalization of industry, trade and Commerce. The Court has to take practical approach keeping in mind the relevant facts and circumstances of modern times. Under the circumstances, merely filing of a suit would not disentitle a person to execute power- of-attorney and the reasoning of the Court to disallow the prayer on that count is not justified. The other ground taken for rejecting power-of-attorney is that the photograph of the applicant is affixed on the power of attorney. That photo has been affixed as per requirement of executing the power of attorney. If photo would not have been affixed, the power of attorney would not have been in order. Thus merely because the photo is affixed, it cannot be said that the lady is not a Parda Nashin lady. The court has to apply commonsense as well and ground realities. Too much technical and flimsy approach defeats and frustrates the very object of the statute causing great hardship which should be avoided.

6. A perusal of the impugned order shows that the Court below ignoring the provisions of law has adopted too much hyper technical approach. The reasons assigned and the grounds mentioned defeat the very purpose and frustrate the power-of-attorney Act. In the instant case the power-of-attorney was given by the wife to her husband is quite natural. Many things have been read in between. The perversity and illegality is writ large. The Court further failed to consider the law laid down in Dr. Anil Kumar Haritwal and Ors. v. Sant Prakash Gupta and Ors., 2001 (3) M.P.H.T 325. Relevant portion of the said judgment reads as under :

“The power of attorney is the instrument by which a person is authorized to act as the agent of the person granting it. Section 2 of the Powers of Attorney Act empowers the donee of a power of attorney to do anything “in and with his own name and signature”, by the authority of the donor of the power. This section declares that everything so done “shall be as effectual in law as if it has been done by the donee of the power in the name and with the signature the donor thereof and as such, the act committed by the holder of the power of attorney would be presumed to be an act committed by the person who gives power of attorney. In that view of the mater, lodging of the complaint by the power of attorney holder of the payee could not be said to be illegal or invalid. Thus, in view of the specific provision of Section 2 of the Powers of Attorney Act, the complaint lodged by the power of attorney holder is a complaint lodged by the payee.”

7. Having thus considered the facts and circumstances of the case, material on record and in view of the discussion made above, the order passed by the Court below is patently illegal and suffers from error of jurisdiction causing miscarriage of justice. The impugned order dated 6-2-2001 is set aside. Counsel submits that delay has occurred because of the impugned order. It is directed that the trial Court shall decide the case expeditiously as early as possible preferably within four months from the date of production of a copy of this order.

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