IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR WEDNESDAY, THE 6TH AUGUST 2008 / 15TH SRAVANA 1930 CRP.No. 115 of 2008(D) --------------------- AGAINST THE ORDER DATED 09/01/2008 IN IA 675/07 IN OS.482/2004 of I ADDL.SUB COURT,TRIVANDRUM .................... REVN. PETITIONER: (CR.PETITIONERS/DEFENDANTS IN THE COURT BELOW) ---------------------------------------------------------------- 1. SANKAR, S/O. LATE MADHAVAN NAIR, AGED 67, 7A, KESTON TOWERS, DEVASWOM BOARD JUNCTION, THIRUVANANTHAPURAM-3. 2. KANAKAVALLI, W/O. SANKAR, AGED 60, RESIDING AT -DO- -DO- BY ADV. SRI.K.B.PRADEEP RESPONDENTS: (PETITIONER/PLAINTIFF) ----------------------------------- 1. T.K.MANIKANTAN NAIR @ T.K.M.NAIR, OUSHADHA THOTTAM, THALATHOTTA YOGANANDA ASRAMOM, VITHURA, NEDUMANGAD, THIRUVANANTHAPURAM. 2. CHANDRIKA RANI, W/O LATE T.K.MANIKANTAN NAIR @T.K.M.NAIR, OUSHADHA THOTTAM, THALATHOTTA YOGANANDA ASRAMOM, VITHURA, NEDUMANGAD, THIRUVANANTHAPURAM. 3. ATHIRA M. NAIR, D/O LATE T,K, MANIKANTAN NAIR @T.K.M. NAIR, DO. DO. *(ADDL. RESPONDENTS 2&3 ARE IMPLEADED VIDE ORDER NO.555 DTD.6-8-2008) BY ADV. SRI.M.BALAGOVINDAN FOR ADDL.R2& R3 SRI.T.K.ANANDA PADMANABHAN FOR ADDL.R2 & R3 THIS CIVIL REVISION PETITION HAVING BEEN FINALLY HEARD ON 06/08/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: I.A. NO:340 OF 2008 IN C.R.P. NO.115 OF 2008 DISMISSED 6-8-2008 SD/- M.SASIDHARAN NAMBIAR,JUDGE. M. SASIDHARAN NAMBIAR, J -------------------------------------------- C.R.P. NO. 115 of 2008 -------------------------------------------- Dated this 6th day of August, 2008. O R D E R This petition is filed under Section 151 of Code of Civil Procedure challenging the order passed by Additional Sub Court, Thiruvananthapuram in I.A. No.675 of 2007. Petitioners are the defendents in the suit. The suit was originally instituted by the respondent through the Power of Attorney holder. Subsequently respondent cancelled the Power of Attorney and filed a vakalath before the Court on 27-6-2005. Hence from 27.6.2005 suit was being contested by the respondent without the power of attorney. While so on 20.11.2006 suit was dismissed on a memo filed by the Power of Attorney Holder stating that suit is not pressed. Finding that suit was dismissed on the basis of the memo, respondent filed I.A.No.675 of 2007 to restore the suit contending that the learned Sub Judge should not have dismissed the suit on a memo filed by the Power of Attorney Holder, when the power of attorney was revoked and respondent himself was contesting the suit. Petitioners opposed the application contending that the Court has no inherent jurisdiction to restore the suit and remedy of the petitioner the respondent is not under Section 151 of Code of Civil Procedure. 2. Learned Sub Judge, under the impugned order, allowed CRP:115/2008 -:2:- the petition on payment of cost of Rs.750/-. The order is challenged in this petition. 3. Learned counsel appearing for the petitioner and the respondent were heard. 4. The arguement of the learned counsel appearing for the petitioners is that suit was dismissed as not pressed and hence it is a decree and remedy of the respondent is only to file an appeal and trial Court should not have restored the suit invoking the powers under Section 151 of Code of Civil Procedure and therefore, the impugned order is illegal and irregular. Based on the Division Bench decision of the Court in Mohammed Master v. Abu Haji (1981 KLT 578) learned counsel appearing for the respondent pointed out that suit was dismissed as not pressed on the submission made by the respondent and it is a decree. But that memo was filed at a time when the respondent was contesting the suit of his own after cancelling the power of attorney and in such circumstances there is no illegality or irregularity in the impugned order. 5. Though respondent had originally instituted the suit through Power of Attorney Holder, the impugned order shows that after cancelling the power of attorney executed in favour of the Power of Attorney Holder, who instituted the suit on behalf of the respondent, respondent filed a Vakalath on 27.6.2005. Therefore, from that date CRP:115/2008 -:3:- the power of attorney holder has no authority to act on behalf of the respondent. The suit was dismissed accepting the memo filed by the Power of Attoreny Holder on 20.11.2006. The Court should not have accepted the said not pressed memo filed by the Power of attorney holder when he has no authority to do so. It is finding that a mistake apparent on the face of record was committed learned Sub Judge invoked the inherent power provided under Section 151 and restored the suit to file. When the Court found that it has committed an apparent error in accepting a memo filed by the Power of Attorney Holder subsequent to cancellation of the power of attoreny, the Court has only corrected the mistake by exercising the inherent power. I do not find any illegality or irregularity in that order. This revision petition is dismissed. M. SASIDHARAN NAMBIAR, JUDGE bps CRP:115/2008 -:4:-