A.R.Ponnusamy, Rep. by Power Agent Venkatachalam vs Thoppalan @ Karuppa Gounder

S.S. Subramani, J.—Alleged power agent of defendant in O.S.516 of 1999 on the file of Additional District Munsif Court, Namakkal is the Revision Petitioner. Suit filed by plaintiff was one for permanent prohibitory injunction restraining defendant from carrying out quarrying operation in S.No.204/4A and for other consequential reliefs. In this revision petition, we are not concerned about the facts of the case and hence not narrated.

Reason for filing this Revision Petition is that petitioner, who claims to be the power agent of defendant filed I.A.930 of 1999 seeking permission that he may be permitted to file objection and contest the suit on behalf of defendant. According to petitioner, defendant has registered a power of attorney and the same authorises him to contest the suit.

Plaintiff filed his objections to the said petition and contended that defendant has not executed any such power and gave various reasons why such power would not have been executed by defendant.

By the impugned order, lower Court held that petitioner cannot be allowed to contest the litigation on the basis of power of attorney. It gave various reasons for not accepting power of attorney. The same is challenged in this Revision Petition.

Since caveat was entered, I heard the revision at the admission stage itself.

After hearing counsel on both sides, I do not think that the Revision itself is maintainable. When lower Court refuses to recognise a power of attorney, it is really defendant who is affected by the decision. The power of attorney, who is the so called agent cannot come in revision when the principal is not aggrieved by the order. It is also not a "case decided" u/s 115of Code of Civil Procedure.

In Baldevdas Shivlal and Another Vs. Filmistan Distributors (India) P. Ltd. and Others, their Lordships considered what is meant by ''case decided'', which read thus,

It may also be observed that by ordering that a question may properly be put to a witness who was being examined, no case was decided by the Trial Court. The expression "case" is not limited in its import to the entirety of the matter in dispute in an action. his Court observed in Major S.S. Khanna Vs. Brig. F.J. Dillon, that the expression "case" is a word of comprehensive import: it includes a Civil proceeding and is not restricted by anything contained in S. 115of the Code to the entirety of the proceeding in a Civil Court. To interpret the expression "case'''' as an entire proceeding only and not a part of the proceeding imposes an unwarranted restriction on the exercise of powers of superintendence and may result in certain cases in denying relief to the aggrieved litigant where it is most needed and may result in the preparation of gross injustice. But it was not decided in Major S.S. Khanna Vs. Brig. F.J. Dillon, that every order of the Court in the course of a suit amounts to a case decided. A case may be said to be decided, if the Court adjudicates for the purpose of the suit some right or obligation of the parties in controversy; every order in the suit cannot be regarded as a case decided within the meaning of Section 115of the Code of Civil Procedure."

It is true that after the decision of Honourable Supreme Court, CPC was amended and proviso and Explanation was added to Section 115, Under Explanation it is said, "In this Section, the expression ''any case which has been decided'' includes any order made, or any order deciding an issue, in the Course of a suit or other proceeding."

The Law Commission even recommended for deletion of Section 115and said that the main reason for delay in the trial of suits is the entertainment of petitions for revision against interlocutory orders and they also suggested that when Article 227 of the Constitution of India is available, that will safeguard the rights of the parties. But the Joint Parliamentary Committee considered this question and did not accept the suggestion of Law Commission, but they said, ''in addition to the restrictions contained in Section 115, an overall restriction on the scope of applications for revision against interlocutory orders should be imposed. Having regard to the recommendations made by the Law Commission in its Fourteenth and Twenty-seventh Reports, the Committee recommended that Section 115of the Code should be retained subject to the modification that no revision application shall lie against an interlocutory order unless either of the following conditions is satisfied, namely - (i) that if the orders were made in favour of the applicant, it would finally dispose of the suit or other proceeding; or (ii) that the order, if allowed to stand, is likely to occasion a failure of justice or cause an irreparable injury''. The Committee further observed thus.

The Committee feel that the expression ''case decided'' should be defined so that the doubt as to whether Section 115applies to an interlocutory order may be set at rest."

It is in consequent to the same, proviso and explanation was inserted by amendment Act, 1976.

In AIR 1990 Allahabad 8 (Kisan Udyog v. United Bank of India) it is held that no revision lies against an order refusing to raise additional issue since no right or obligation of a party is determined by refusal to frame additional issues.

In A.I.R 1979 Punjab & Haryana 76 (Smt. Harvinder Kaur v. Godha Ram), it is held that a revision would lie against interlocutory order only after determining the purpose of the suit some right or obligation of the parties in controversy. If subordinate Court did not decide any issue nor did it adjudicate for the purpose of the suit some right or obligation of parties in controversy, then it is not the case decided according to that High Court.

In 1992 (1) K.L.T.713 (Mytheen Kunju v. Azeez Kunju), it is held thus,

(i) The High Court''s revisional powers under S.115of the Code can be exercised only it the order of the subordinate Court sought to be revised constitutes "any case which has been decided".

(ii) The Court makes numerous orders during the pendency of a suit or proceedings. Every such order is not "case which has been decided" within the meaning of sub-section (1) of S. 115of the Code. Some of these orders decide or adjudicate upon rights or obligations of litigants. The Court also makes orders which do not determine any right or obligation. It is only those orders which decide or adjudicate upon rights or obligations of either party that come within the meaning of "case which has been decided".

(iii) The proviso to sub-section (1) of S.115of the Code introduced by the CPC (Amendment) Act - Act 104 of 1976 restricts the High Court''s power of revision created by Sub-section (1) of S. 115of the Code of those cases which fall within clauses (a) and (b) of the proviso. The proviso therefore operates to limit or restrict the general power of revision created by Sub-section (1) of S.115 of the Code. The proviso does not even remotely imply or mean that an order made during the pendency of a suit or proceedings, irrespective of whether it decides a right or obligation or not, is "any case which has been decided" within the meaning of Sub-section (1) of S.115of the Code. The legislature,

aware of the meaning of "any case which has been decided" has refrained from touching the fundamental prerequisite of Revisional power that the order sought 10 be revised must, constitute "case which has been decided".

(iv) Similarly the explanation introduced by the CPC (Amendment) Act - Act 104 of 1976 docs not enlarge and extend the meaning of the expression "any case which has been decided" to every interlocutory orders irrespective of whether it decides or adjudicates upon a right or obligation or not. The explanation was introduced for the purpose of clearing the doubt as to whether interlocutory orders fall within the expression "any case which has been decided". The explanation merely lays down that an interlocutory order may also constitute "any case which has been decided". It does not lay down that a decision or adjudication of a right or obligation is not necessary to constitute "any case which has been decided".

The explanation explains the meaning of "any case which has been decided" Its purpose is to make known and intelligible what has already been enacted. Consistently with this purpose the explanation merely clarifies that "case... decided" may cover interlocutory orders also.

The same principle was reiterated in 1992 (2) K.L.T.102 (Ravindarn v. Roja).

In view of these decisions, I do not think that a revision lies against the impugned order.

Even on merits of the case, I do not find that petitioner got an arguable case. It is not disputed that even as between the so called power of attorney and defendant, litigations are pending and they are not on good terms. Under such circumstances, it is too much to think that defendant would have executed general power of attorney in favour of petitioner. Lower Court has also taken into consideration various other aspects which cause doubt on the validity of the power of attorney. When plaintiff filed objection to interlocutory application, so called power of attorney should have at least examined defendant or at least made defendant to be present in the Court and Court be given an opportunity to get his approval for petitioner to be recognised as Power of Attorney. This has also not been done. In the result, the revision petition is dismissed. No costs. Consequently, C.M.P.18297 of 1999 is also dismissed.