Oyya Thevar vs Munia Thevar and Others

V. Kanagaraj, J.—This civil revision petition is directed against the fair and decretal order dated 29.1.1999 made in I.A.No. 610 of 1999 in

O.S.No. 197 of 1997 by the Court of District Munsif, Manamadurai, thereby dismissing the application filed by the petitioner herein who is a third

party to the suit proceedings, under Order 3, Rules 1 and 2, C.P.C. praying to permit him to conduct the suit for and on behalf of the second

defendant, as his Power of Attorney Agent, accepting the General Power of Attorney executed by the second defendant, in his favour.

The petitioner would allege in the affidavit filed in support of the petition that the second defendant has executed a general power of attorney

dated 16.4.1998 in favour of the petitioner, to act on his behalf, to sign the affidavit, statement, etc. and thereby praying to permit him to act on

behalf of the second defendant in the suit, accepting the general power of attorney executed by the second defendant.

In the counter filed by the respondents, they would categorically deny that the second defendant had given the general power of attorney in

favour of the petitioner. They would further submit that it is a forged document that in spite of the second defendant not willing to contest the suit,

the petitioner having forged the power of attorney document in his favour, has come forward with a false plea to contest the suit; that the second

defendant without having a mind to act against the people of the village, had gone away from the village somewhere else and his whereabouts are

not known; that unless the second defendant appears in persons and conducts the case, his genuine interest in the suit cannot be decided; that the

second defendant has absolutely no connection with the suit property, nor is he belonging to that village where the suit property locates, and

therefore, it is desirable to summon the second defendant to appear before the Court and that the petitioner is not maintainable.

Based on these pleading by parties, the lower Court having discussed the arguments of both sides, would appoint a Commission to inspect the

place of residence of the second respondent and to file a report. The Commissioner so appointed had also gone to the address of the second

defendant and made enquiries on the spot and had come to know that the second defendant is not in the place for the last 1 1/2 years and based

on this report submitted by the Commissioner and upon issuing the summons to the second defendant, the lower Court has arrived at the

conclusion to dismiss the application on ground that the second defendant in spite of being summoned, has not appeared before the Court, and

therefore, the petition is dismissed. It is only testifying the validity of this order passed by the lower Court, the petitioner has come forward to file

the above civil revision petition, on certain grounds as brought forth in the grounds of revision.

In consideration of the pleadings by parties, having regard to the materials placed on record and upon hearing the learned Counsel for both,

what comes to be known is that an application has been filed by the petitioner, who is a third party to the suit, under Order 3, Rules 1 and 2,

C.P.C. also filing a general power of attorney aid to have been executed in favour of the petitioner by the second defendant in the suit, thereby

praying to accept the same thus permitting him to act on behalf of the second defendant, so far as the suit is concerned.

This application has been stiffly opposed by the respondents on ground that the second defendant is not at all in the village for quite some time

and that he would not be interested in acting against the interest of the village people in the suit filed by the plaintiff and that the petitioner has come

with a forged general power of attorney, and therefore, the same should not be accepted, nor the petitioner be allowed to act on behalf of the

second defendant in the suit, based on the general power of attorney produced along with the application. They have also prayed for a commission

to be appointed to ascertain whether the second defendant is in the village or not and to know about this whereabouts and the said commissioner

having visited the place of residence of the second defendant, submitted a report to the effect that for the last 1 1/2 years, he is not in the village.

Based on this, the lower Court has issued summon to the second defendant to appear before the Court and since there was no response, has

dismissed the petition on account of his non-appearance before the Court.

It comes to be known that the general power of attorney produced before the Court by the petitioner is a registered document. The plea of the

petitioner is that only because the second defendant is not in a position to appear before the Court and conduct the case himself, has come forward

to execute the general power of attorney in favour of the petitioner. However, it is the case of the respondents in the lower Court and herein that

the said power of attorney had not been validly executed, by the second defendant. Their defence is forgery. Without proving it as the defence

taken on their part, they have requested the Court to appoint a commission to know whether the second defendant is at home or in the village, or

has gone outside somewhere and to know his whereabouts and the Commissioner who is appointed by the Court based on such contentions made

on the part of the respondents, has also visited the address offered and submitted a report that for the last 1 1/2 years, he is not residing therein,

and thereupon the lower Court also issuing summons to the second defendant to appear before the Court and since there was no response, would

decide the petition dismissing the same on ground that since the second defendant did not respond to the summons, the petition is dismissed.

The plea taken by the respondents is forgery. No steps have been taken on the part of the respondents, nor has it been demanded on the part of

the lower Court from the respondents to prove this plea taken on their part and the said plea which is the only valid plea taken on the part the

respondents has been left in wilderness by the lower Court. Instead, at the request of the respondents, the lower Court has gone into unnecessary

exercises, such as appointing a commission for the purpose of ascertaining the whereabouts or residence of the second defendant and the lower

Court itself sending summons to the second defendant, seeking his appearance before the Court forgetting that to the defence of forgery pleaded

by the respondents, it is their burden to prove that the document was forged.

Only because the second defendant is not in a position to appear before the Court, he has executed the general power of attorney in favour of

the petitioner, is the case of the petitioner. While such is the position, without asking the respondents to prove the plea taken on their part, i.e.,

forgery, the lower Court has gone into such unnecessary and wasteful exercises of appointing a Commission and sending summons to the second

defendant to ascertain his whereabouts. It is not the case of the petitioner that the second defendant is at home in his address or he is very well

available so as to ascertain the same through the Commissioner or by sending summons to him. Whether he is an interested party, or disinterested

in the suit cannot be spoken about at this stage, especially in view of a registered document filed before the Court, and therefore, without trying to

ascertain the authenticity of the document, which is a registered instrument, especially requiring the respondents to prove the plea that they have

taken in the petition, i.e. forgery, the lower Court has indulged into such exercises, which the lower Court is not permitted to do and the best

method to ascertain the validity or genuineness of the document produced is by itself to conduct an enquiry based on the plea of forgery, and

therefore, the exercises undertaken by the lower Court are not only undesirable in the circumstances of the case, but also improper and the only

course that is open for the lower Court is to go into the genuineness of the document produced by the petitioner, allowing parties to record

evidence and deciding the matter, without seeking to locate the second defendant, since the report of the Commissioner and the returned summons

are not the conclusive proofs of the plea of the petitioner that the second defendant had executed the general power of attorney, in his favour.

For these reasons, the fair and decretal order passed by the Court of District Munsif, Manamadurai, in dismissing the application filed by the

petitioner is not sustainable in law and the same becomes only liable to be set aside.

In result,

(i) the above civil revision petition succeeds and the same is allowed;

(ii) the fair and decretal order dated 29.1.1999 made in I.A.No. 610 of 1998 in O.S.No. 197 of 1997 by the Court of District Munsif,

Manamadurai, is hereby set aside;

(iii) However, the matter is remanded to the lower Court concerned for proper enquiry to be held in the manner indicated in the foregoing

paragraphs;

(iv) The lower Court is directed to dispose of the application, on enquiry, as expeditiously as possible.

However, in the circumstances of the case, there shall be no order as to costs.