THOMAS SAVERIMUTHU Vs. K. JOSEPH

JUDGEMENT

(1.) The petitioner has commenced the suit in O.S.No. 200/2008 on the file of the IV Additional Senior Civil Judge Bengaluru Rural District, Bengaluru (for short, 'the civil Court'), through his power of attorney, who is permitted by the civil Court to prosecute the suit and to tender evidence on behalf of the plaintiff. The civil Court by the impugned order dtd. 22/3/2021, while considering an application (I.A.N.o.12) filed under Order III Rule 2 read with Sec. 120 of the Evidence Act, 1872 and under Order IX Rule 12 of the Code of Civil Procedure, 1908 (for short, 'CPC'), has called upon the petitioner to appear in person on 20/4/2021 observing that if he does not appear on the given date, the power of attorney executed by him would stand cancelled. The operative portion reads as under: IA filed by the defendants U/O.3 Rule 2 R/w Sec.120 of Evidence Act and U/O.9 Rule 12 of CPC is partly allowed. Consequently, plaintiff by name Sri. Thomas Saverimuttu is hereby directed to appear physically on 20/04/2021. If does not appear on the given date, automatically the General Power of Attorney executed by him stands cancelled. For appearance of plaintiff by: 20/04/2021.

(2.) This Court, in the present petition, has stayed the civil Court's order dtd. 22/3/2021. However, this stay is not extended from the second hearing date. With this being brought to the notice of the civil Court by memo dtd. 10/10/2020, the civil Court has dismissed the suit observing that with the petitioner's failure to appear in person, the power of attorney executed by him is cancelled and if the power of attorney stands cancelled, the suit would not survive for consideration. Presently, the petitioner is permitted by way of an amendment to impugn the civil Court's subsequent order dtd. 10/10/2022.

(3.) The petitioner, in what his learned counsel, Sri S.V.Giridhar describes as peculiar circumstances, has commenced miscellaneous proceedings[Misc Petition No.112/2022] for restoration of the suit while prosecuting this petition. The civil Court with this miscellaneous proceedings also listed before it, has opined that the petitioner is represented by the power of attorney holder and if the petitioner does not appear in person, the petition would not be maintainable. The civil Court's opinion in Miscellaneous proceedings read as under: