THE HONOURABLE SMT. JUSTICE P.SREE SUDHA I.A.No.1 of 2024 In/And C.C.C.A.No.13 of 2024

COMMON ORDER:

I.A.No.1 of 2024 is filed to permit the petitioner herein to represent Mir Tehsin Ali, who is appellant in C.C.C.A.No.13 of 2024, as he is the G.P.A holder by virtue of Agreement of Sale (with possession)-cum-General Power of Attorney bearing document No.1464 of 2010 dated 29.04.2010.

2. During the pendency of the appeal, a copy of the said G.P.A was filed and this Court perused the same. The present appeal is filed against the Order of the trial Court dated 03.11.2023 passed in I.A.No.865 of 2015 in O.S.No.1024 of 2009. The said I.A was filed for passing of the final decree proceedings, but the trial Court after considering several citations and arguments of both sides, dismissed the application. Even in the said I.A, there is reference of the G.P.A, but the trial Court observed that he is not authorized to file the petition on behalf of the petitioner. It was also observed that respondent No.2, who accepted in his written statement that suit vide O.S.No.31 of 2008 was decreed in terms of compromise cannot again say that the said compromise decree was obtained by playing fraud.

3. Petitioner herein stated that he was given authority to represent Mir Tehsin Ali/appellant in all legal matters as per the G.P.A dated 29.04.2010. The Mir Tehsin Ali appeared himself in O.S.No.1024 of 2009 and he was not entrusted with the G.P.A at that point of time and thus now he requested the Court to permit him to represent the Mir Tehsin Ali.

4. Though he requested this Court to permit him to represent the Mir Tehsin Ali, no reasons were assigned for executing G.P.A in his favour. Moreover, vendor/executants appeared himself in the suit, what prevented him to appear before this Court did not explain anywhere.

5. The learned Counsel for the petitioner relied upon the decision of the High Court of Andhra Pradesh in the case of Natubhai Chotabhai Patel Vs.Patnam Shakuntala and Ors., in which it was held that “if the agent or GPA holder is authorized only to sign the pleadings or to give evidence as a witness, in such circumstances, Rule 32 is not mandatory.”

6. The learned Counsel for respondents relied upon the decision of the Hon’ble Apex Court in the case of Janki Vashdeo Bhojwani and another Vs.Indusind Bank Ltd. and others, in which it was held as follows:

“Power to depose in place of principal, held, extends only to depositions in respect of ‘acts’ done by power of attorney holder in exercise of power granted by the instrument. Term ‘acts’ would not include deposing in place of and instead of the principal for acts done by principal and not by power of attorney holder. Similarly, power of attorney holder cannot depose for principal in respect of matters of which principal is liable to be cross- examined. If principal is unable to appear in court, a commission for recording his evidence may be issued.”

7. In the Counter filed by respondent No.2, she stated that permission cannot be given for the reason that the present case is a City Civil Court Appeal, but not a Revision. It is also stated that the entire document is silent as to filing suit for partition, filing petition for final decree, deposing on behalf of the principal, filing of the appeal etc., as such the deponent cannot file appeal without any specific power given to him under the collusive Agreement of Sale (with possession) – cum – General Power of Attorney. She also stated that in the absence of any specific power, the deponent cannot act on behalf of the Principal based upon collusive document.

8. Perusal of the G.P.A clause - 12(e) shows that the G.P.A holder is authorized to appear before the Courts and to sign, verify and file plaints, representations etc., and to appoint third person on behalf of the vendor, but it is not an exclusive General Power of Attorney issued in favour of the petitioner herein, it is the Agreement of Sale – cum – General Power of Attorney. Moreover, the exe