C.R.P.(PD).No.2098 of 2020

IN THE HIGH COURT OF JUDICATURE AT MADRAS

DATED : 25.01.2023

CORAM:

THE HON'BLE MRS.JUSTICE V.BHAVANI SUBBAROYAN

C.R.P.(PD).No.2098 of 2020

and C.M.P.No.13252 of 2020

1.Rathnamma

2.B.R.Sharada

...Petitioners

Vs.

Santhanam Pillai

...Respondent

Prayer: Civil Revision Petition filed under Article 227 of Constitution of

India, against the Fair Order and Decretal Order dated 01.02.2020 made

in I.A.No.1/2019 in O.S.No.252/1997 on the file of the District Munsiff

Court, Hosur.

For Petitioners

: Mr.J.Nandagopal

For Respondent : Mr.Avinashwadhawani

for Mr.V.Raghavachari

O R D E R

This Civil Revision petition has been filed to set aside the Fair and

Decretal Order dated 01.02.2020 made in I.A.No.1 of 2019 in

O.S.No.252 of 1997 on the file of the District Munsiff Court, Hosur.

2.The brief fact of the case is that originally the suit was filed by

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C.R.P.(PD).No.2098 of 2020

the petitioners in O.S.No.252 of 1997 under Order VII Rule 1 to 6 Code

of Civil Procedure before the District Munsiff Court, Hosur to declare

the title of the plaintiffs to the suit properties described in 'A' Schedule

and marked as ABCD and AEFG in the plaint sketch and for permanent

injunction directing the defendant and his men from further putting up

construction in the 'A' Schedule property; for mandatory injunction

directing the defendant to remove the illegal construction put up in the

'A' Schedule property and also to remove the windows put up adjacent to

the 'B' Schedule property. Subsequently, I.A.No.1 of 2019 was filed by

the petitioners before the District Munsiff Court, Hosur for a prayer to

permit them to be represented by the Special Power of Attorney Holder

and also to permit the Power of Attorney Holder to conduct the case on

behalf of the petitioners/plaintiffs. By order dated 01.02.2020, the

District Munsif Court had dismissed the application filed by the

petitioners. Aggrieved by the same, the present Civil Revision Petition

has been filed.

3.Learned counsel for the petitioners submitted that the trial Court

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C.R.P.(PD).No.2098 of 2020

erred in dismissing the application on the ground that if the petitioners

are suffering from health related problem and unable to appear before the

Court, they may apply for appointment of Commissioner for the

evidence, when they have appointed Power of Attorney Agent and

seeking permission to represent through the said Power of Attorney

Agent under Order III Rule 1 of CPC. He submitted that the trial Court

failed to note that the recognized agent of the parties can represent the

case and shall get leave of the Court under Order III Rule 1 & 2 of CPC

provided the agent shall have personal knowledge about the case.

4.He further submitted that the Court below failed to understand

that only at the time of deposing evidence the best knowledge about the

case of the Power of Attorney holder can be tested. The trial Court below

failed to note that the first petitioner is very old lady and her sister-in-

law, the second petitioner herself is aged 60 years who is suffering from

diabetes and she cannot travel and attend the Court and also Advocate

office regularly and hence both the petitioners executed a Special Power

of Attorney in favour of the second petitioner's husband to represent

them in the case.

5.Learned counsel for the respondent has filed a counter in

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C.R.P.(PD).No.2098 of 2020

I.A.No.1 of 2019, wherein it has been stated that the whole exercise

attempted by the plaintiffs is to avoid entering into the witness box and

subject themselves to rigors of cross examination. None of the petitioners

herein have filed or produced any medical documents to prove the reason

for which they allegedly executed the Po