Daya Nand vs Shashi Bala And Others

Amol Rattan Singh, J.

By this petition, the petitioner challenges the order of the learned trial Court (Civil Judge (J.D.-cum-JMIC, Mahendergarh), dated 02.04.2018, by

which the plaint signed by plaintiff no.2 along with the vakalatnama (power of attorney) executed by her, in favour of her counsel were taken on

record.

Learned counsel for the petitioner submits that the petitioner had raised an objection at the time of arguments in the trial, that the suit on behalf of

plaintiff no.2 was not maintainable as the plaint was not signed by the said plaintiff and further, that the power of attorney executed by her in favour of

plaintiff no.1 for pursuing the suit, was not actually qua the suit property but some other property. Hence, he submits that at the final stage of the trial,

a fresh plaint signed by plaintiff no.2 along with a power of attorney executed by her in favour of her counsel could not have been taken on record.

On specific query, it is not denied that the aforesaid objections were not taken by the petitioner, i.e. defendant, at any stage in the pleadings prior to the

argument actually having been raised at the final stage of the trial.

In my opinion, that being so and plaintiff no.2 submitting the plaint signed by her, executing a power of attorney in favour of her counsel, thereby

substituting the general power of attorney executed by her in favour of plaintiff no.1, (pertaining to some other property), was not a deniable action by

the trial Court, especially as it is not denied that no amended plaint was actually filed by plaintiff no.2, though in the impugned order the second last

sentence reads to say as follows:

“Now to come upon 05.04.2018 for amended plaint, Power of Attorney, final arguments.â€​

Learned counsel for the respondents, apart from submitting that there was no amended plaint actually submitted, has relied upon a judgment of the

Supreme Court in Uday Shankar Triyar vs. Ram Kalewar Prasad Singh & anr., 2006(1) RCR (Civil) 18, to submit that though a pleader appearing

only upon on a vakalatnama signed in his favour is mandatory, however, appearance without that would be a procedural defect only; and, in any case,

a vakalatnama having duly been filed by counsel for the 2nd plaintiff.

Learned counsel for the petitioner has further submitted that as a matter of fact plaintiff no.2 should have been summoned personally by the trial Court

to verify her signatures on the plaint and even on the vakalatnama signed by her in favour of her counsel.

That contention is rejected because the plaint was accompanied by the vakalatnama presented by a counsel duly appearing for her. If that contention

is to be accepted, without any evidence led to prove that the signature was not that of plaintiff no.2, it would mean that in every single case the

vakalatnama of any counsel is to be disbelieved, with the litigant actually summoned to Court to identify his/her signatures thereon.

As regards the contention earlier raised by learned counsel, that the plaint and vakalatnama should not have been accepted by the trial Court at that

stage, he relies upon a judgment of a Coordinate Bench of this Court in Ganesh Parshad Aggarwal vs. Sushila and others, 2010 (9) RCR (Civil) 358,

from which he points to paragraph 6, which read as follows:

“Applying the ratio of the above dictums, I am of the opinion that even if plaint filed for the Unit No. S-668 and S-671 seems to be not proper, in

view of the non-mentioning of these units in the power of attorney, however, learned Trial Court instead of rejecting the plaint should have called the

plaintiff either to sign and verify the pleading or to execute another power of attorney in favour of the power of attorney holder to justify the filing,

signing and verification of the pleading.â€​

I do not see how the ratio of that judgment is in his favour, as in my opinion actually it goes against the petitioner's case, because what has been

specifically held by this Court is that instead of rejecting the plaint the trial Court should have called the plaintiff, either to sign and verify the pleading

or to execute another power of attorney in favour of the power of attorney-holder, to justify the filing, signing and verification of the pleadings.

Though undoubtedly the first part of the aforesaid observation is to the effect that the trial court should have called the plaintiff, however, it is clarified

by the second part of the sentence, which says “or to execute another power of attorney in favour of power of attorney-holder to justify the filing,

signing and verification of the pleadingsâ€. Though in the present case, a second power of attorney in favour of plaintiff no.1 was not submitted by

plaintiff no.2, however, instead a vakalatnama was executed by her to enable her counsel to appear for her independently, instead of plaintiff no.1

representing her as her attorney.

Consequently, finding no merit in this petition, it is dismissed.