The failure to obtain permission to sue in the capacity of the power agent at the time of filing the plaint is only a procedural irregularity and is a curable defect. The court may permit the power agent to prosecute the suit on behalf of his principal.

C.R.P.(MD)No.2606 of 2023

BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT

Reserved on : 09.11.2023

Pronounced on : 12.12.2023

CORAM:

THE HON'BLE MR.JUSTICE K.MURALI SHANKAR

C.R.P.(MD)No.2606 of 2023

and

C.M.P.(MD)No.13602 of 2023

1. P.Nithyanandham

2. P.Jabaraj

... Petitioners/

Respondents/

Defendants

Vs.

G.Jayaram

... Respondent/

Petitioner/

Plaintiff

Prayer : This Civil Revision Petition filed under Article 227 of the

Constitution of India, to allow the Civil Revision Petition and set aside

fair and decreetal order dated 24.08.2023 made in I.A.No.2 of 2022 in

O.S.No.109 of 2021 on the file of District Munsif Court, Bodinayakkanur.

For Petitioners

: Mr.A.Arumugam

For Respondent

: Mr.S.Raja Sekar

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C.R.P.(MD)No.2606 of 2023

ORDER

The Civil Revision Petition is directed against the order passed in

I.A.No.2 of 2022 in O.S.No.109 of 2021 dated 24.08.2023, on the file of

the District Munsif Court, Bodinayakkanur, allowing the application filed

under Order 3 Rule 2 of the Code of Civil Procedure.

2. The respondent/plaintiff has filed the suit in O.S.No.109 of 2021

against the revision petitioners/defendants, claiming permanent injunction

restraining the revision petitioners/defendants and their men from

interfering with the respondent/plaintiff's possession, agricultural

operations and from trespassing or causing damages to the suit property.

3. The respondent/plaintiff, in the body of the plaint, has specifically

observed that his son Suresh has executed a general power of attorney in

his favour and on that basis, he has been in possession and enjoyment of

the suit property and only on the basis of the said power of attorney, he has

filed the above suit.

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C.R.P.(MD)No.2606 of 2023

4. Generally, the person, who files the suit and claims the reliefs,

will be shown as the plaintiff and if he is represented by his power of

attorney agent, then the cause title would be

(name of the plaintiff)

represented by his power of attorney agent

(name of the power agent)”

5. In the case on hand, a perusal of the contents of the plaint would

reveal that Suresh, S/o.G.Jayaram is the plaintiff and he has filed the suit

through his power agent Jayaram, who is none other than his own father,

but in the short and long cause title, the power agent has been shown as

the plaintiff and as such, the way in which the plaintiff was described is

not proper.

6. Pending suit, the said power agent has filed an application under

Order 3 Rule 2 C.P.C. seeking permission of the Court to prosecute the

suit as power agent of his son Suresh, the principal. The revision

petitioners/defendants have filed a counter statement raising serious

objections stating that the power agent has deliberately failed to file an

application for permission to sue in the capacity of power agent of the

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C.R.P.(MD)No.2606 of 2023

owner and the said failure is fatal and goes to the root of the matter and

that the same cannot be remedied by filing an application subsequently to

recognize the power.

7. It is their further defence that filing an application under Order 3

Rule 1 and 2 C.P.C. for recognizing the power is the condition precedent

for numbering the plaint, that since the same was not done, the Court

ought to have returned the plaint, that the very numbering of the plaint is

against law and that the very filing of the above application is an abuse of

process of Court.

8. The learned counsel appearing for the revision petitioners by

quoting a proverb that no one can put a cart before the horse and start a

journey has argued that the permission application now filed ought to have

been filed along with the plaint and the trial Court ought to have taken the

plaint on file only after granting permission in the application filed under

Order 3 Rule 2 C.P.C. and th