IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.P.BALACHANDRAN TUESDAY, THE 18TH NOVEMBER 2008 / 27TH KARTHIKA 1930 CRP.No. 330 of 2006 --------------------------------- IA.1841/2005 IN CMA.131/2005 of DISTRICT COURT, THALASSERY .................... REVN. PETITIONER/DEFENDANT: PULICAKL JOY JOSEPH, S/O. JOSEPH, AGED 42 YEARS (RESIDING AT DUBAI IN CONNECTION WITH EMPLOYMENT) REP. BY POWER OF ATTORNEY HOLDER MRS.MARIAM, W/O. JOSEPH PULICKAL (LATE) AGED 74 YEARS, VELLARVALLI AMSOM, THALASSERY TALUK. BY ADV. SRI.K.V.PAVITHRAN SRI.JAYANANDAN MADAYI PUTHIYAVEETTIL RESPONDENT/PLAINTIFF: VANIYAPURAKKAL THRESSIAMMA ALIAS LISA, D/O. JOSEPH, AGED 36, CHAPPAMALA, KOTTIYOOR P.O., KOTTIYOOR, THALASSERY TALUK. ADV. SRI.R.SURENDRAN THIS CIVIL REVISION PETITION HAVING BEEN FINALLY HEARD ON 18/11/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: K.P. Balachandran, J. -------------------------- C.R.P.No.330 of 2006 -------------------------- ORDER Respondent/wife instituted O.S.No.247/98 before the Sub Court, Thalassery for a decree of recovery of money from the petitioner/husband towards value of gold ornaments appropriated by him and cash received by him from her while she was working abroad and the petitioner was living in the home country. The suit was decreed ex parte on 16.8.2001, though the petitioner/defendant had filed written statement on 20.5.1999, as the defendant did not appear to contest the case and his counsel reported that he has no instructions from his party, when the suit stood for trial in the special list on 16.8.2001. Thereafter, the petitioner, through his mother/power of attorney holder, filed I.A. No.2768/98 to set aside the ex parte decree along with I.A.No.2767/98 seeking for an order to condone the delay in filing I.A.No. 2768/98. The above applications were filed along CRP 330/06 2 with the power of attorney executed by the petitioner on 4.4.1999, which had not been produced before court till then. The reason stated for non appearance when the suit stood posted in the list for trial is that the power of attorney holder was bed ridden and was unable to instruct the counsel to appear in the case. The court below disbelieved the case so alleged by the power of attorney holder and held that written statement was filed on 20.5.1999 in the suit by the defendant himself signing therein, though the power of attorney had been executed in favour of his mother prior thereto on 4.4.1999 and thereby there was implied revocation of the power of attorney and dismissed both I.A.Nos.2767/98 and 2768/98 aforementioned. Against the said dismissal, instead of filing a C.M.Appeal before the District Court, the petitioner, through his power of attorney holder, filed C.R.P.No.780/03 before this Court and that was dismissed as not maintainable without prejudice CRP 330/06 3 to the petitioner taking up the matter before the District Court in appeal. Thereafter, C.M.A.No. 131/05 was filed by the defendant through his power of attorney holder mother along with a petition under Section 5 of the Limitation Act to condone the delay in filing the C.M. Appeal. The C.M. Appeal and the delay condonation petition were dismissed by the first appellate court, vide order impugned. Hence this revision. 2. Despite the courts below holding that the power of attorney stood cancelled impliedly, the defendant has not preferred any appeal or revision by himself, though it is submitted by the counsel for the petitioner that he has come over to these places several times even after the decree was passed ex parte. This revision also is filed not by the defendant/husband, but by his mother power of attorney holder. 3. Learned counsel for the petitioner produced before me a photostat copy of the power of attorney CRP 330/06 4 for perusal. It is dated 4th April, 1999 and authorises his mother to conduct O.S.No.247/98, by doing everything that is required in the matter, including filing of vakalath and engagement of a Lawyer and filing written statement in the suit. Despite execution of power of attorney on 4.4.1999, written statement was filed thereafter by the defendant himself signing therein at Dubai on 20.5.1999. It is submitted that the said written statement was filed on 16.7.1999. It is also submitted that counter to the attachment petition was filed on the same day by the defendant himself signing it in the very same manner. It is true that when a person is out of India, he can authorise someone else to conduct the case. But, it is difficult to believe that a person, who authorises someone else to conduct the case by giving engagement to Lawyer and filing written statement and doing all other acts on his behalf in his home station, will sign the pleadings himself at Dubai, CRP 330/06 5 where he is employed and then forward it to his Lawyer for being filed in court. This act of the defendant/husband, as observed by the courts below, is implied revocation of authority given to his mother under the power of attorney. In fact, the power of attorney had not been produced before the court and it was produced before the court for the first time only when petitions to set aside the ex parte decree and to condone the delay were filed by the alleged power of attorney holder/mother. The reason stated for not instructing the Lawyer to appear before the court when the suit stood listed for trial on 16.8.2001 is her illness. Her illness has no bearing as far as decreeing of the suit is concerned as the power of attorney had not been produced before court and the counsel was conducting the case on the basis of the vakalath executed by the defendant himself. Despite dismissal of the petition to set aside the ex parte decree, instead of filing a C.M. Appeal, a CRP was CRP 330/06 6 filed before this Court as C.R.P.No.780/03. It is difficult to believe that prosecuting the CRP without filing a C.M.Appeal was bona fide. Consequently, therefore, C.M.A.No.131/05, filed after the dismissal of C.R.P.No.780/03, was rightly dismissed by the court below dismissing also the application for condonation of delay filed therewith. The contention of the counsel for the petitioner is that doing any one of the things authorised under the power of attorney by the executant of the power of attorney by itself will not tantamount to revocation of power of attorney.I refuse to accept the contention for the reason that after executing the power of attorney on 4.4.1999 in favour of his mother, who is available in station, the husband, who was the defendant in the suit, has obtained the written statement prepared by a Lawyer forwarded to him for being signed and the written statement along with the counter was sent for being filed in court, which course was CRP 330/06 7 quite unwarranted, if his mother was expected to conduct the suit as authorised by the power of attorney. There is no merit in the contention so advanced. It is only that the power of attorney holder is filing petitions, appeals, CRPs etc. ever after the decree was passed on 16.8.2001 and was successfully protracting the execution of the decree till 2008. This revision, assailing the dismissal of C.M.A.No.131/05 and the delay condonation application filed therewith through the power of attorney holder/mother of the defendant, is devoid of merit and is dismissed. 18th November, 2008 (K.P.Balachandran, Judge) tkv