Allowed

R.Prakash, v. Sri Lakshmi Narashima Swamy

Madras HC9 Apr 2014CRP(MD)/667/2014

Case brief

AI extract

What is this about?

This court allowed a civil revision petition challenging an order recognizing a third party as a power agent. The court held that since the alleged principal (the Mutt) was not a party to the suit, it could not authorize someone to represent the plaintiff's trustee, setting aside the lower court's order.

What did the court decide?

The impugned order dated 16.08.2013 recognizing Mr. B.Ramu as power agent is set aside.

R.Prakash, Vs Sri Lakshmi Narashima Swamy — Contract and Commercial Disputes | Madras HC (2014)

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BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 09.04.2014 CORAM:

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THE HONOURABLE MR.JUSTICE T.MATHIVANAN

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C.R.P.(PD) (MD) No.667 of 2014 and M.P.(MD) No.1 of 2014

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R.Prakash ... Petitioner/Respondent/Defendant

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-vs-

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Sri Lakshmi Narashima Swamy Private Trust rep.by it's Trustee Mr.L.Srinivasan Residing at Door No.6 C Plot No.20, Perumal Nagar, 2^nd main road, Old Pallavaram, Chennai

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... Respondent/Respondent/Plaintiff

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PRAYER: Civil Revision Petition is filed, under Article 227 of the Constitution of India, against the fair and decreetal orders dated 16.08.2013 and made in I.A.No.89 of 2013 in O.S.No.65 of 2008, on the file of the court of the Principal Subordinate Judge, Kumbakonam.

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For Petitioner : Mr.R.Prakash, Party-in-Person

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For Respondent : Mr.G.Gomathi Sankar

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O R D E R

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The fair and decreetal orders dated 16.08.2013 and made in I.A.No.89 of 2013 in O.S.No.65 of 2008, on the file of the learned Principal Subordinate Judge, Kumbakonam, have been challenged in this memorandum of civil revision petition.

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2.The revision petitioner herein is the defendant in the suit in O.S.No.65 of 2008, on the file of the learned Principal Subordinate Judge, Kumbakonam, whereas the respondent Trust, which is represented by it's Trustee Mr.L.Srinivasan, is the plaintiff therein.

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3.The facts, which are very much essential for the disposal of this memorandum of civil revision petition, are as under:-

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3.1.The respondent/plaintiff had filed a suit in O.S.No.65 of 2008, on the file of the learned Principal Subordinate Judge, Kumbakonam, under Order VII Rule 1 of the Code of Civil Procedure, as against the revision petitioner/defendant, seeking the relief of decree of injunction restraining him, his men and agents or anybody claiming through in whatever capacity from in any manner entering upon the suit property described in the plaint schedule and directing the revision petitioner/defendant to pay the costs of the suit. https://hcservices.ecourts.gov.in/hcservices/

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3.2.During the pendency of the suit, one Mr.B.Ramu, son of Mr.S.V.Balakrishnan, residing at Nos.29 and 30, Mela Mettu Street, Kumbakonam, had filed an affidavit dated 04.04.2013 along with an interlocutory application in I.A.No.89 of 2013, under Order III Rules 1 and 2 of the Code of Civil Procedure, seeking permission of the Court to recognize him as the power agent of the plaintiff's new trustee Sri Utharathi Mutt. This interlocutory application was contested by the revision petitioner/defendant by filing his counter statement dated 06.06.2013. After hearing both sides, the learned Principal Subordinate Judge, Kumbakonam, had proceeded to allow the interlocutory application, on 16.08.2013, on the ground that he is of the opinion that recognizing the petitioner/deponent as the power agent would not in anyway prejudice the revision petitioner/defendant and accordingly he had recognized the deponent as the power agent of plaintiff's Trust.

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3.3.Impugning the said order dated 16.08.2013, the revision petitioner/defendant has approached this Court with this memorandum of civil revision petition.

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4.Heard Mr.R.Prakash, party-in-person as well as Mr.G.Gomathi Sankar, learned counsel appearing for the respondent/plaintiff and perused the materials available in the typed set of papers.

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5.Mr.R.Prakash, who is the revision petitioner/defendant, has argued that under Law, a power agent cannot give evidence on behalf of the principal, though he is entitled to be present before the Court on behalf of the plaintiff and to look into all other matters. But, the said general principle couldnot be applied in the present case as the respondent/plaintiff trustee could not delegate his powers to anybody.

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6.Secondly, he has argued that the cause title itself is defective and that the claim of the respondent/plaintiff that he is the power agent of the Uttradi Mutt has nothing to do with the present suit. Besides this, he has also canvassed that the interlocutory application ought not to have been entertained for recognizing the third party as a power agent for another third party, as the respondent/plaintiff Trust namely Sri Lakshmi Narashima Swami Private Trust has filed the suit through it's trustee Mr.L.Srinivasan.

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7.He has also argued that during the pendency of the suit i.e., in the midway of the proceedings, he had gone out of the proceedings voluntarily without replacing him in the manner known to law. He has also adverted to that in the interlocutory application Mr.L.Srinivasan, trustee of the Sri Lakshmi Narashima Swami Private Trust, alone is prevailing and that the pontiff of the Uttradi Mutt viz., Sri Sathya Athama Theerthar is not at all a party to the proceedings and as such the alleged execution of power of attorney in favour of the deponent Mr.B.Ramu to proceed with the suit is lack of bona fide and liable to be rejected for the simple reason that he could not be recognized as the power of attorney of the respondent/plaintiff's trust.

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8.Apart from this, he has also pointed out that the executant of the power of attorney did not add himself as a party and because of this reason he could not appoint a third party to proceed the suit as his https://hcservices.ecourts.gov.in/hcservices/ power agent. Apart from this, he has also focussed the following two points:

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i. It appears that the respondent/plaintiff Sri Lakshmi Narashima Swami Private Trust was replaced by the Uttradi Mutt and if the pontiff of the said mutt has been nominated as a trustee of the above said Sri Lakshmi Narashima Swami Private Trust, he can very well avail the benefit of the trusteeship as an individual, but it has not been done so. And

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ii. The intention of the respondent/plaintiff's trust is side tracked by the present representatives of the trust.

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9.On the other hand, Mr.G.Gomathi Sankar, learned counsel appearing for the respondent/plaintiff has argued that the respondent/plaintiff Trust is a private Trust and it was previously managed by the founder trustee Mr.D.Ranga Rao, who is none other than the father-in-law of the revision petitioner/defendant. The said Mr.D.Ranga Rao had duly nominated Mr.L.Srinivasan as the trustee of the respondent/plaintiff Trust under a registered document dated 14.06.2007. Mr.L.Srinivasan has been managing the Sri Lakshmi Narashima Swami Private Trust from 14.07.2007 to till date. Since Mr.L.Srinivasan has been residing at Madras, in order to assist him, he had appointed one Mr.V.A.Gururajan, to supervise the private Trust, building, idols, vessels and ornaments etc., and also to see that the daily worship of the idols is performed perfectly by the Archaka.

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10.Mr.G.Gomathi Shankar has continued that even during the lifetime of Mr.D.Ranga Rao, the revision petitioner/defendant, who is his son-inlaw, was not in good terms with him and as such he had always been quarrelling with him. Infact, the revision petitioner/defendant had filed a suit in O.S.No.406 of 2005, on the file of the learned District Munsif, Kumbakonam, against his father-in-law, who is the founder trustee of the respondent/plaintiff Trust and thereby questioned the authority of Mr.D.Ranga Rao and was trying to prevent him from alienating the Trust property. However, the said suit was dismissed on 29.04.2008. After the death of the founder trustee Mr.D.Ranga Rao, the revision petitioner/defendant had been continuing his disturbance to the smooth functioning of the respondent/plaintiff Trust and therefore the respondent/plaintiff Trust was constrained to file the above suit in O.S.No.65 of 2008, seeking the relief of injunction against him.

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11.It is significant to note here that the interlocutory application in I.A.No.89 of 2013 appears to have been filed by the learned counsel, who was appearing before the trial on court behalf of Sri Lakshmi Narashima Swami Private Trust, represented by it's trustee Mr.L.Srinivasan. It is also more relevant to note here that the affidavit, which is filed in support of the interlocutory application, seems to have been sworn in by one Mr.B.Ramu, son of Mr.S.V.Balakrishnan, residing at Door Nos.29 and 30, Mela Mettu Street, Kumbakonam, describing himself as the power agent of one Sri Utharathi Mutt.

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12.On a cursory perusal of the affidavit filed by Mr.B.Ramu, who has self-styled himself as the power agent of Sri Utharathi Mutt, along with the interlocutory application filed by the learned counsel, who was appearing on behalf of the respondent/plaintiff Trust, this Court finds https://hcservices.ecourts.gov.in/hcservices/ that the affidavit as well as the interlocutory application are not at all fit in fair congruence with each other.

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13.In this connection, it may be necessary for this Court to extract the provisions of Rules 1 and 2 of Order III of the Code of Civil Procedure. Order III C.P.C., deals with "Recognized agents and pleaders". Rule 1 to Order III C.P.C., deals with appearances etc., may be in person, recognized agent or by pleader. It enacts as under:

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“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 recognized agent, or by a pleader [appearing, applying or acting, as the case may be], on his behalf:

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Provided that any such appearance shall, if the Court so directs, be made by the party in person.”

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14.Rule 2 to Order III C.P.C., deals with recognized agents. It enacts as under:

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“The recognized agents of parties by whom such appearances, applications and acts may be made or done are-

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(a) persons holding power-of-attorney, authorizing them to make and do such appearances, applications and acts on behalf of such parties;

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(b) persons carrying on trade or business for and in the names of parties not resident within 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 made and do such appearances, applications and acts.”

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15.As decided in Janki Vashdeo Bhajwani v. Indusind Bank Ltd., reported in AIR 2005 SC 439 (442) , an attorney holder is empowered to act on behalf of the principal the work 'acts' employed in Rr.1 & 2 conforms only in respect of 'act' done by the power of attorney holder in exercise of power granted by the instrument. The term 'act' would not include deposing in place and instead of the principal.

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16.The scope and object of Rule 1 is that it contemplates appearance not as a man but as a party with the intention of acting as a party in the suit. As observed in T.Kaliappa Mudaliar vs. Kumaraswami Mudali minor by next friend Poongavanammal reported in AIR 1926 Mad 971 , the language of this rule means no more than that a recognized agent can appear, make applications and take such steps as may be necessary in the course of the litigation for the case of the principal being properly laid before the Court.

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17.Order III, Rule 2, deals with the persons who are recognized agents. An agent who holds a power of attorney is a recognized agent https://hcservices.ecourts.gov.in/hcservices/ within the meaning of this rule. He should be allowed to appear and act under this rule but the defendant may question his authority to do so.

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18.It is also pertinent to note here that as decided in Kanadapudi Bharathy, Gudivada and another vs. Authority under A.P.S.E. Act-cumLabour Officer , Machilipatnam and another , reported in 1999(3)ALD 420 : 1999(3)ALT 428 , the attorney holder can appear as a witness only in his personal capacity and not in the capacity of the party appointing him power of attorney holder. The word 'acts' in Rule 2 does not include the act of power of attorney holder to appear as witness on behalf of a party.

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19.In this connection, Rule 16 of the Civil Rules of Practice also assumes importance.

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20.Sub Rule 1 of Rule 16 enacts as under:-

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"When a party appears by an agent other than a pleader or advocate, the agent shall before making or doing any appearance, application, or act, in or to the court, file in court the power of attorney, or written authority, thereunto authorising him, or a properly authenticated copy thereof/or, in the case of an agent carrying on a trade or business on behalf of a party, without a written authority, an affidavit stating the residence of his principal, the trade or business carried on by the agent on his behalf and the connection of the same with the subject matter of the suit and that no other agent is expressly authorised to make or do such appearance, application or act.

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21.Sub Rule 2 of Rule 16 enacts as follows:-

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"The judge may thereupon record in writing that the agent, is permitted to appear and act on behalf of the party, and unless and until the said permission is granted no appearance, application, or act, of the agent shall be recognized by the court."

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22.In so far as the suit in O.S.No.65 of 2008 is concerned, it appears to have been instituted by Sri Lakshmi Narashima Swami Private Trust, by its Trustee Mr.L.Srinivasan, S/o.Lakshmanan. The revision petitioner herein is the defendant. As afore stated, one B.Ramu, S/o.Mr.S.V.Balakrishnan has sworn in the affidavit filed in support of the petition in I.A.No.89 of 2013. In his affidavit, the said B.Ramu has claimed that he is the power agent of Sri Utharathi Mutt and that prior Trustee L.Srinivasan (through whom the suit is instituted) has nominated Sri Utharathi Mutt as trustee of the plaintiff's trust under a registered nomination deed, dated 13.07.2009.

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23.It is significant to note here that the said Sri Utharathi Mutt, who is nominated by the original trustee Mr.L.Srinivasan is not a party to the present suit. Further, the said Uttrathi Mutt has not evinced any interest impleading itself as a party representing the plaintiff's trust. In this connection, a question arises for the consideration of this court is as to whether a party, who is admittedly a stranger to the suit, can authorise another third party to represent the plaintiff's trust.

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https://hcservices.ecourts.gov.in/hcservices/ 24.As argued by Mr.R.Prakash, party in person, Sri Uttradi Mutt is not a party to the suit and Uttradi Mutt has not apparently filed any

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application to get itself impleaded as a party, representing the plaintiff's trust. Since, Sri Uttradi Mutt is not at all a party to the suit and as observed supra, he is a stranger to the suit, how he could have authorised the said B.Ramu as power agent to represent the plaintiff's trustee.

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25.Secondly, in the interlocutory application also, the said Sri Uttradi Mutt is not a party and though, it appears that the petition seems to have been filed by Sri Lakshmi Narashima Swamy Private Trust etc., the petition itself seems to have been signed by the advocate and the affidavit was sworn in by the plaintiff B.Ramu and on account of this reason also, the petition in I.A.No.89 of 2013 ought not to have been entertained by the court below.

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26.Keeping in view of the above fact, this court finds that the pontiff of the Uttradi Mutt viz., Sri Sathya Athama Theerthar is not at all a party to the proceedings and therefore, the alleged execution of the power of attorney in favour of the deponent Mr.B.Ramu to proceed with the suit is lack of bona fide and liable to be rejected and due to this reason, the said B.Ramu could not be recognized as the power of attorney of the respondent/plaintiff's trust.

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27.As envisaged in the provisions of Rule 1 and 2 of Order III C.P.C, to make appearance in the court of law, the party concerned has three options:-

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(i)he may appear as party in person; or

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(ii)by his recognized agent; or,

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(iii) by a pleader [appearing, applying or acting, as the case may be] on his behalf.

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28.Since, the principal of the alleged power of attorney viz, pontiff of the Uttradi Mutt namely Sri Sathya Athma Theerthar is not a party to the suit, he cannot appear either by himself as party in person or through his power agent or through his pleader, unless he gets himself impleaded as a party to the suit.

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29.Having regard to the related facts and circumstances of the case, this court is of the considered view that the revision petition deserves to be allowed and the impugned order is liable to be set aside.

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30.In the result, this revision petition is allowed and the impugned order is set aside. No costs. Consequently, connected Miscellaneous Petition is closed.

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Sd/-

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Assistant Registrar(AE)

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\True copy\

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Sub Assistant Registrar

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To:

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The Principal Subordinate Judge,Principal Sub Court, Kumbakonam. +1 CC TO M/S.G.GOMATHI SANKAR, ADVOCATE SR.NO.22774