( 1 ) THROUGH this application leave to defend the suit for recovery filed under the summary procedure of order 37 Code of Civil Procedure has been sought on multifarious grounds.

( 2 ) AT the outset, Mr. I. C. Kumar, learned counsel for the defendants has challenged the authority of Mr. Ravi k. Maggon who has filed the present suit as the power of attorney does not state that it was executed before a notary Public nor does it bear any authentication by a notary Public. It is pertinent to mention here that along with the suit a power of attorney was filed which was not notarised and a fresh power of attorney was filed on 29. 7. 2000 along with application for issuing summons for judgment.

( 3 ) SECTION 85 of Indian Evidence Act postulates that the court shall presume that every document purporting to be power of attorney and to have been executed before, and authenticated by, a Notary Public or any court, Judge, Magistrate, (Indian) Consul or Vice consul or representative of the Central Government, was so executed and authenticated.

( 4 ) IN D. H. M. Framji and others Vs. The Eastern Union bank Ltd. Chittagong A. I. R- (38) 1951 Punjab 371, an objection was taken that the person who originally authorised the Advocate to act on behalf of the decree holder had no authority to do so and the question to be determined was on the legality and propriety of a power of attorney given. It was held that it is the duty of the parties to produce before the court proof in favour of their submissions and the original power of attorney ought to be kept on the file or at least a photographic copy or a certified copy of it ought to have been produced.

( 5 ) IT is a settled law that power of attorney must be strictly perused and construed as giving only such authority as it confers expressely or by necessary implication. However, in the instant case, though a fresh power of attorney ratifying the power to file the suit and ail steps taken by Mr. Maggon was filed after two years of institution of the suit with the application seeking service of summons for judgment. In other words, defect was cured before summons for judgment were served upon the defendants.

( 6 ) MR. I. C. KUMAR, learned counsel for the defendants has contended that such a defect is not curable and the only alternative left to the plaintiff was to file a fresh suit after the power of attorney was got duly notarised. In support of this contention, Mr. Kumar has placed reliance upon Chunilal Bhagwanji Vs. Kanmal Lalchand A. I. R. (31) Bombay 201 wherein the facts were different and distinguishable. The question before the Bench was one of procedure.

( 7 ) THE aforesaid suit was filed by a minor by his next friend, his aunt. The defendant had executed a promissory note in favour of a firm known as Kisan Baf and sukalchand Kanmal of which plaintiff claimed to be the owner. The plaint was signed and verified by one Saremal and it was presented by a pleader Mr. Thakor, whose vakalatnama had been signed by Saremal. The case of the plaintiff was that Saremal was the duly authorized agent of Bai Dhapu to present the plaint, to sign it and to appoint a pleader, Saremal being authorized so to act under the power of attorney. It was under these circumstances held that for the purpose of appointing a recognised agent to take some step in the suit, the next friend is to be regarded as a party to the suit within the meaning of Order 3 Rule 1 Code of Civil Procedure. The next friend of a minor can appoint a recognised agent. The next friend has no right to execute a general power of attorney in respect of the minor s property. A general power of attorney would not enable the attorney to file suit in the name of unspecified minors using the guarantor s name as next friend. It was further observed that a person acting under such a power of attorney has no authority either to present the plaint or to sign it and if the plaint is presented by somebody who has no authority to present it