VELUSAMI NADAR Vs. PUNITHA

JUDGEMENT

(1.) THE above revision petitions has been filed against the respective orders of the learned Subordinate Judge, Pattukkottai, dated 25.9.1995 in C.M.A. Nos.7 and 9 of 1995 in almost identical circumstances and factual background. Except that the plaintiff in the two proceedings are different and the subject matter of the suit pertains to different transactions, the similarity of the fact situation as also the issues involved would justify the consideration of both these matters together. As a matter of fact, submissions before me have also been made in common.

(2.) RESPONDENTS in these proceedings are the plain tiffs and it appears, they have filed the suits for recovery of the sums deposited with the defendant- petitioner, which is one and the same in both the cases. The suits came to be dismissed on account of the absence of the plaintiff in the respective suit, under 0.9, Rule 9, C.P.C. But, at the same time, it is to be noticed that the father of the plaintiffs by name Subbiah Chettiar has filed the power of attorney and the same was filed even on the date when the suits were dismissed for default. Since the power was not accepted and the representation by the power of attorney was not proper, as on that date, to represent the plaintiffs, the absence of the plaintiff in each case was considered to be a lapse and default. Thereupon, applications to recognise the applicant Subbiah Chettiar as the power of attorney agent of the plaintiffs came to be filed. But, the same were also dismissed on the ground that since the suits themselves were dismissed, there was no scope for granting any permission as prayed for. It is in those circumstances, the applications for restoration of the suits also came to be dismissed on the ground that no sufficient cause has been shown. Aggrieved, the plaintiffs represented by the power of Attorney have filed appeals before the lower appellate court. The learned Subordinate Judge considered the respective claims of the parties at considerable length and by his orders under challenge has held in Paragraph 12 of the orders, which are identical, as follows:

(3.) I have carefully considered the submissions of the learned counsel for the petitioner. The plaintiffs-respondents herein have substantial rights, in that they have filed the respective suits for recovery of the amounts said to have been deposited with the defendant- petitioner. The father of the plaintiffs only appears to have been given the power of attorney to represent the daughters as their agent to conduct and prosecute the proceedings before court. The stage of the execution and production of the power of attorney is not prior to the institution of suits or to enable him to file the suits. It is only to prosecute the proceedings already validly instituted further and in my view, the trial court might have taken a practical view of the situation and dealt with the matter with more humane approach to ensure justice to the parties. The fact situation appears to be that even on the date when the suits were dismissed for default, the leave applications have also been filed and merely because on the date when the suits were called or prior to that leave was not granted to the power of attorney to represent the plaintiffs by recognising the power of Attorney, the suits themselves came to be dismissed for default. The lower appellate court, in my view, has taken into account all the relevant aspects and adopted the correct approach by pointing out the hyper-technical attitude adopted by the trial court in rejecting the applications as well as the suits by the respondents. The justification for setting aside the orders of the trial court is made in paragraph 12 of the orders of the lower appellate court, which has been extracted supra and in may view, no exception could be taken to the approach of the lower appellate court or the reasons assigned therein.