p IN THE HIGH COURT OF CHHATTTSGARH AT BILASPUR Second Appeal No. ^^7 /2003 \^^^"" APPEAL UNDER SECTION (00 OF THE CODE QF CIVIL PROCEDURE Ajipellant .Arjun Singh, S/o Trilok Singh ^ aged about 45 years, Occupation - Agriculturist R/o Kumhi, Tah. Berla, Distt. Durg (C.G.) VERSUS Respondents : 1. /" ^ ..'<^ .yy. y ^' y^^ ^ ^y ..&y ^^ <^": ,^2. <s*' ^3. 4. ^' Ml ll) llii Smt. Kumari Bai, W.o Ramkl^ilawan aged about 35 years, Caste - Kshatriya Occupation - Agriculturist R/o Bramhapuri, Tah. and Distt. Raipur (C.G.) Bhuvan Singh, S/o Trilok Singh aged about 30 years, Occupation - Agriculturist R/o Kumhi, Tah. Berla, Distt. Durg (C.G.) Jambai, W/o Late Makhan Singh Caste - Kshatriya, Occupation Agriculturist, R/o Khajri, Tah. Berla, Distt. Durg (C.G.) Dulari Bai, W/o Late Narad Singh Caste - Kshatriya aged about 40 years, R/o Navagaon, Tah. Saja Distt. Durg (C.G.) Contd........2 ^.^s^ss'^^^^ -6. to€^ ^ 7. Pavan Kumar, S/o Ujiyar Singh Caste - Kshatriya, R/o Gram Nyay General Store Shop No. 38, Civic Centre, Indra Palace, Bhilai Nagar, Durg (C.G.) Sakun Bai @ Baby, W/o Lokeshwar Singh aged about 19 years, R/o House No. 22, Street No. 37 Sector-2, Bhilai Nagar, Distt. Durg (C.G.) UJiyar Singh, S/o Aan Singh aged about 50 years, R/o Gram Khara Tah. Berla., Distt. Durg (C.G.) l.-/ ' Being^aggrieved by impugnedjudgemgnt and decree dated 17.01.2003 passed,by learned Sicond Additipnal District Judge, Bemetara, in civil appeal No. 47-A/2002, ^ppellant prefer this memorandum ofappeal on following facts and grounds amongst others :- FACTS OF THE CASE -2- .1,r':-i r'\.y> ^ ^' >a; ^"\.^ Pavan Kumar, S/o Ujiyar Singh Caste - Kshatriya, R/o Gram Nyay General Store Shop No. 38, Civic Centre, Indra Palace, Bhilai Nagar, Durg (C.G.) Sakun Bai @ Baby, W/o Lokeshwar Singh aged about 19 years, R/o House No. 22, Street No. 37 Sector-2, Bhilai Nagar, Ui ott -nnra- 4^ O \ W Staia pt Qihat^.sQa^i |h3?ouc|i, ^oll^tof' Qlatt^ 9ua?g (€»a*) 'ee Being^aggrieved by impugned judgeme.nt and decrc dated lT.01.2003 passed,by learned ^cond Additional District Judge, Bemetara, in civil appeal No. 47^A/2002, ^ppellant prefer this memorandum ofappeal on following facts and grounds amongst others :- FACTS OF THE CASE •i ^. ^. ' COURT or : No. 369 of 2003 Aijun Singh -Versus- Smt. KuiQ.ari Bal & others POSTFOR ORDER ON1^^042004 Sd/- L.C. Bhadoo Judge 50 ^^~ "k NQ. of - Arjun Siagh "Versus- Smt/ Kumad Bai & otliers ^ AppeUant by Shri Sudhir Verma, Advocate. JUDGEMENT (Delivered or^April, 2004) Bj_Jtisfci€e_j^_Co^_B_h_adQO£ <- r Arjun Siiigli, Defendaiit No.l m ttie original. .Suit (here m-after referred a^ filed this CivU second appeal being aggrteved by ttie Judginent and decree dt-17,01.2003 passed by ihe Second Addiuonal Disrrict Judge (Fasr TTack Coun), Bemetra ia Civil Appcat No.47-A/2002, whcrcby lcamcd Addmo?ial District Judgc ^vhilc aUowiiig thc appcaJ: of thc plaintiff Sixit Kuiaa-ri Bai, reverQed tlie judgsiieiit aiid the decree of the trial Court aiid decreed the nlaiiitiffe suit, Brief iacts uecessaiy for the disposal of this Civil Second Appeal are that the respoiident No,T herein. was plaiiitifT in. th.e ougmal Suit, She iiled a Suit through her husband Ram Khilawaii^ Power of attoniey holder, again.st tlie present appellaiit and six otliers for partitton possession £m.d niesne of tiie piDperty descnbed as A, B, C in para 3 4 of the plaint; left by her late fatiier ^. ^" ^''.. ^, - 'v.... -^ 3, Tiilok Siiigh ^iid laotlier Benu Bsd. ¥^iitt.eustateiiielit w,a.s filed 011 beliRlf of the respoiidente No. 1, 2 & 4 ajid respoudents No.3, 5 & 6. After frsm.nig the issues leamed trisl Court declared the plaiD.tiif share, for which she is entitled, however, dismissed uie Suit on fhe ground that Khilawan, power of attomey holder, husbajid of tlie plaio.tiS, was required to prove tliet he is legally authorized power of attoniey faoMer to file the suit. Even though he piDduced the power of attomey but he has not piDvecl fSie saine ttierefbre, it csiinot be consiriered thax said Ram KliUawan 1s legalty appoiared power of attoraey holder, and ultimately ir caiinot bc hcld that thc Suit has bccn actuaUy fllrd br thc plaintif^ Since ^aid Raiii Khilawan ha^ not bccn ablc to provc tliat he is legally a.ppoiiited power of attoiiiey holder of tlie plaiiitiff; therefore. he is not eiititled to file tlie suit. aiid a©siicli t-he suit flled bv hnn. on behcdf of flie plain.tiff is witliout autlioritv ^iiid ultiaiatelv leoi'ned trial Court disixiissed tlie suit. Aggrteved by tlie said judgment aiid decree dated 7.4,1995 passed m Civil Suit No. 30-A/94. Khilawaii. husbaiid of plaiiitiff Smt. Kumad Bai preferred an appeal before tlie 6th Additk)nal District Judge, Durg, Bemetra aad vide mipugned judgiiient decree leanied AdditiDual Distri.et Judge altowed the appeal after holdmg tliat smce the defendants had not ralsed any objectlon about tlie maiiitaiiiabiliw of tlie suit ond abour. tlie autliorin' .of powcr of attoiTicy holdcr to filc tlic suit aiid uo issuc wa"5 frsmicd on that count, thci'efore, thc fiiiding of lcai'nccl trial Gourt on this gix:»uiid is illegal. It lias furtlier beeii held tha.t tlie fiiidiiig oftlie trial Court that the suit is not legaUy sigiied. veii&ed aiid coiisntuted ia iiot coii'ect aiid ultimately aUowed tlie appeal aiid •^' <<. decreecl tlie pl^m.tifi:b? suit, as 110 cross appeal vvas filed by tlie defeiid^iits challeiiguig the fiiidirig of issues i\diich were decided in favour of the plsiu-uir 4, I have heard leamed counsel for fhe appellaiit, 5, In oirier to entertaiB. this civil second appeal tlie appellaiit is required to estabUsh that the First AppeUate Court has commiued rsiatcrial illcgallt)r isi arrizriiig at tlic fiiidiag ^iid tliis appcal iiivolvc^ a. substajiitial quc^tion of law thercforc it should bc adinitted 011 that szibstaiitial qziestioii of law^. Leaiiied couiisel for tlie appellaiit ai'guecl fliat tfie trial Court has rightly disraissed tlie suit. of tlie plaititiff as tlie saiiie was uot filed by a legaUy coinpeteiit ^aid a.utlioiised persoxi, as per tbe requii-eiaent of tlie lavv. 6. 1 have penised tlie JudgBient of ttie trial Court as well-.as * fiie appellate Court, records ofboth the court betow ond the statement of Rain Khilawan Smgli, power of attomey Iiolder of the platntiff recorded bv tlieulal Courr. 7, As lo.eiitioned above, the sziit was filed by Rainkhilawaii Siagh, hasbaiid of plain-biff Snit. KuiD.ari Bai, in the capa.city of power of ^.ttoi'Tiey holder. The plain.t \va.^ signed arid verified by hiiii iri th.e capacity of power of attoniey hoMer in consonance wilh the requtrements of Rule 14 aad 15 of Order 6. Rule 14 prescnbes th.at every pleadiiig shMl be signed by t&e party aiid his pleader (if aay): provided that wherc a party pleadmg is, by reason of absence or fbr other good cause, unable to sign the pleadmg, it may be signed by aoy pcrson duly autiiorized by hrm io sign fhe or to sue or defeiict on his behalf Thereft)rc, the requlrcment K .x' <<' i. -^ 'l . -/ of tlie law is tlia.t iii the abseiice of Uie piQintiff, tlie pleadiiig caii be sigxied by saiy persoii duly ^uthorized by hiixi or her by i^^-sou of aijsence or fbr oth.cr good cause unable to sign pleadrag. 8, In this case, th.e plamtiff had appomted her husbaad as power of attomey, who had filed the.power ofattomey alongwith the plaiiit sigued the ^pteadiiig m coiiibrmity with Rule 14 of'Order 6. Further, he had also veriited. the pleaxlmgs m CQnfbrmity of the Rule 15 of Order 6. Even befbre the trial Court the uower of attomey holder of plaiiTtiff naiiiety Raiii K!iilawaa(P.W.l) had siated ihat he has signed rlie suli tn. rhe capacity of power of attomcy holdcr of his wife/ plaiiitiff. Thcrcfbrc, thcrc was no -iiifinsii^ in thc ^igiiing of thc plaJiit a^tid vciir^iiig thc saiiic a^ pcr Rule 14 aiid 15 oftlie Order 6. TTie. sigtiiiig ofpleadiiig is tiierely a iiiatt.er of procediire aiid it is itiiiiiaterial ^diether it IQ signed by the plaititiiTor sonieone else on her behatfas has? beeii held iii tlie c^se of SaiJLi Vs. Badri,-reported iii AIR 1939 Na.gp-ar 242, aiid it would be uiifbir ajid unjust to reject tlie piaiat Bierely 011 the ground thsi fh-e plsint was not properly signed aiid veriiied when the plaiiiuiFs husbaiid came to rhe witness box aiid made out the case m the plaiiit as been held m the case of Kailash Sin.gh.. Vs. Hiralal Dey, reported iii AIR 1994 Ganhati 123 aiid omission to sign or defect ia signature or veriilcation b^-cured at aijy by ainendmeut. On the contrary iii this case the pleadnig was slgn^d verified by the power of attDniev Iiolder of ttie plainriff and he has appeared in uie Court and stated that he has filcd thc ^iiit ou bchaif of the hi^ wife (plaintiff) . Thcrcfore, thc fiiidiiig of thc trial COUIT wa^ not iii con^onaiicc with the provisions ofthe Civil Proccdure Codc, ; y. M ^. \^ 1. - \- ^. Y- - M.ore over it i^ surpriQing th^t ho^y the trial Court took up this pGint sjid aeeided ^.gmnst the pi^iiitiif wheii no such objectk)ii was raised on behslf of the defendaiit aiid even no issue was iraiued io. this regaiu,.Thercfore even ifthe power ofattDniey was: iiot teudered mto' evideuce eveu then that not gomg ro make aiiy dtfierence. Tfaerefbre, m-'view ofthe'aljove the findiiig of-the trial Court was ittegal aiid.'fhe jud.gmeiit decrce of the first appellate Court m .reversmg the judgment and. decrce of the tnal Court 1s legal aiid the flrst appeUaie Coun not committed any iilegaMry in reversing the flndm-g of tlie trial Court aiid ta iny opiniou what to talk of substaiitial qucstiou of law, cvcn tlic quc^tioii oflaw m xiot iiivoivcd ia thi^ appcai. This appcaJ. i^ Uablc to be disiiiissed as no substaj.itial question of la.^v is iiivolved iii this Biatter for decision of tliis Court, thei'efore the saine is disro.issed. Sd/- L.C. Bhadoo Judge