Procedural defects and irregularities which are curable should not be allowed to defeat substantive rights.

M. SATHYANARAYANAN, J.

1. By consent, the Civil Revision petition is taken up for final disposal. For the sake of convenience, this Court adopts the nomenclature/array of parties in O.S.No.149 of 2009 on the file of the Court of Subordinate Judge, Poonamalle.

2. Tmt. Dr. Nafeez Zawahir had filed O.S.No.149 of 2009 on the file of the Court of Subordinate Judge, Poonamallee against Thiru. P.G. Venugopal, praying for a judgment and decree for specific performance of the contract dated 21.04.1999, in respect of the site and land and building situated at Plot No.6160, TNHB, HIG - Type 344, 50 Sq.M in Ambattur, Ayyapakkam Village, Thiruvallur District. The plaintiff was represented by Thiru. Arul samy, Power of Attorney.

3. The defendant had filed I.A.No.502 of 2012, under Order 7 Rule 11 read with Section 1 of Civil Procedure Code, praying for rejection of the plaint on the ground that admittedly, the Suit came to be laid on the power of attorney said to have been executed by him on 20.04.1999 in favour of the plaintiff, which was subsequently cancelled and as such the Suit per se is not maintainable. The defendant also took a stand that he became owner of the said property on 29.05.2008 through a registered Sale Deed executed by Housing Board and he has no authority to execute the so called Power of Attorney or any other instrument in favour of some body and therefore prays for rejection of the plaint.

4. The plaintiff has filed a counter affidavit refuting the allegations. The plaintiff also filed the Power of Attorney of the plaintiff namely Mr. M. Arulsamy and he also filed I.A.No.502 of 2012 under Order 3 Rule 2 read with Section 151 CPC seeking leave of the Court to file the Power of Attorney along with a petition and to take back the already filed Power Deed and permitted to conduct the case on behalf of the Principal. In the affidavit filed in support of the said petition, it was averred that the Principal had executed a Power of Attorney in his favour on 01.09.2007 and the original was filed in the Court and after filing of the application by the defendant under Order 7 Rule 11 CPC in I.A.No.502 of 2012, it came to the knowledge that the Principal did not subscribe signatures on a page but only on the last page. Since a mistake has crept in inadvertently, fresh power of attorney was prepared and sent to the Principal at United States of America and it was sent back and he sought to use the same to prosecute the suit and the said petition was resisted by the defendant by submitting that it cannot be termed as a technical as well as curable defect for the reason that even at the time of institution of the suit, an invalid Power of Attorney has been utilised and therefore it cannot be replaced with another Power of Attorney, which came into being subsequent to the filing of the Suit and therefore, prays for dismissal of the application.

5. The Court of Subordinate Judge, Poonamalle, had taken up I.A.No.502 of 2012 filed by the Power of Attorney of the plaintiff at the first instance and noted that though it was claimed that the Power of Attorney was sent to the Principal at United States of America and she signed the same, a perusal of the Power of Attorney dated 22.08.2007 would disclose that it seems to be executed at Chennai and witnesses were also residing at Chennai and therefore, it became evident that the said Power of Attorney has not been executed in United States of America. Reliance was also been placed upon the judgment of the Karnataka High Court in the case of State of Karnataka Vs. M.Muniraju, (2002) AIR Karnataka 287 and after extracting Paragraph No.51, the Lower Court felt that the Power of Attorney cannot be allowed to be filed and accordingly, dismissed the petition, vide impugned fair and decreetal orders dated 04.01.2013 and challenging the legality of the same, the plaintiff had filed this revision.

6. The Trial Court has also taken up I.A.No.214 of 2012 filed by the defendant for rejection of the pla