L. Basdev vs Krishan Kumar and Others

Kapur, J.—This is an appeal against an appellate order passed by Mr. Mani Ram reversing the order rejecting the plaint as brought by the plaintiffs.

The plaintiffs brought a suit for decla ration that the sale of a ''haveli'' effected by their father was without consideration and necessity and will not affect their reversionary rights. An objection was taken that the plaint had not been properly presented as the power of attorney in favour of the Pleader did not authorise him to make the presentation. The relevant words of the power of attorney are:

"In the above noted case I appoint for pro secution for defence ***** Lala Lakshmi Chand Advocate * * All actions of the said gentleman will be as if done by myself and will be acceptable to and binding on me * * * * The said gentleman will have the right to sign and verify the plaint, written state ment, etc."

In the body of the power of attorney the only person whose name is mentioned is Lala Lakshmi Chand, but underneath it is put down :

"I accept the power of attorney.

Rama Kant, Pleader.

Lakshmi Chand, Advocate."

This is the document which was held to be. defective as not giving to Mr. Rama Kant, Pleader (who actually presented the plaint) the power to institute the suit or present the plaint. This objection was given effect to by the trial Court, but on appeal it was held that there was no defect in the presentation of the plaint.

This question is not ''res Integra'' and has been decided by a Division Bench of the Lahore High Court in -- ''Mt. Barkata v Feroz Khan'', 46 Pun LR 96, where it was held that:

"there is no authority for the proposition that a mere act of presentation of a duly signed plaint or a memorandum of appeal by a person under the signatures of a plaintiff or appellant or their duly appointed Pleader or agent requires a written authority from any one of them. Therefore, a plaint or an appeal can be presented by any person other than the appellant or his recognized agent or Pleader."

I am in respectful agreement with this opinion. Every day we see that appeals in this Court are actually put into the box not by Advocates themselves but by their clerks who have no written authority from the appellants. I am, therefore, of the opinion that the learned Judge has rightly come to the conclusion that there is no defect in the presentation of this petition of plaint and I would dismiss this appeal, but in the circumstances of the case I would leave the parties to bear their own costs throughout. Parties have been directed to appear in the trial Court on 13-10-1952.