SARASU Vs. RAMASAMY

JUDGEMENT

(1.) THE revision petitioners are defendants in a suit filed by the respondents/plaintiffs for the relief of permanent injunction against the defendants.

(2.) THE brief facts of the case are as follows: THE plaintiff has filed the suit through Power Agent by name S.Somasundaram for permanent injunction restraining the defendants from grazing the cattle or taking their bullock carts or in any way encroach upon the suit schedule property. Since the plaintiff Ramasamy is in Malaysia he has appointed one Somasundaram as his Power of Attorney Agent and filed the suit through him. THE Power of Attorney executed by Ramasamy is produced in Court.

(3.) THIS Court in 2007 (1) CTC 653 (R.B.K.Rajeswari Nachiar v N.N.S.A.Mohamed Kasim) has held in paragraphs 8, 9 and 12 as follows: "8. The second limb of the argument of the learned counsel for the petitioner is that since the power of attorney was executed at Malaysia, which has not been certified by the Collector as provided under Section 32 of the Act, it cannot be relied upon and the same has to be rejected in toto. The power of attorney executed at Malaysia, but engrossed in Indian Non-Judicial stamp paper need not be produced before the Collector for certification since full stamp duty has been paid. The said document is admissible. The opening words in Section 32 of the Act clearly states"when an instrument brought to the Collector under Section 31 is ...". Therefore if Section 32 of the Act has to be applied, then the instrument should have necessarily been produced under Section 31 of the Act before the Collector concerned. If the instrument is not produced before the Collector, the Collector does not get any jurisdiction at all to o into the question of whether proper stamp duty has been paid under the Act or not. The production of the document before the Collector is not at all mandatory. 9. Further, since the power of attorney itself was already written in Indian Stamp papers, it cannot be said that the failure to produce before the Collector within three months can be a ground to hold that it will disentitle the party from acting on the basis of such power. Further, the admissibility of the instrument not duly stamped is dealt with under Section 35 of the Act. Improperly stamped instrument excepting the categories mentioned in clause (a) of Section 35 shall be admitted in evidence on payment of duty with which the same is chargeable with a penalty. The power of attorney is not the one of teh categorieis of the documents mentioned in Section 35 (a) of the Act. Hence, even assuming that the power of attorney is not duly stamped, the said document is admissible. .... .... 12. While the position of law is very clear on this aspect, I am constrained to reject the arguments of the learned counsel for the petitioner and uphold the contentions raised by the learned counsel for the respondent. In the result, I find no illegality in the order dated 25.4.2006 of the learned District Munsif/Judicial Magistrate No.I, Ramanathapuram made, in I.A.No.75 of 2006 in O.S.No.24 of 2005 permitted S.Bismillah Khan as power agent of the respondent, herein and hence, the same is hereby confirmed. Therefore, the Civil Revision Petition in C.R.P.(PD) No.472 of 2006 is liable to be dismissed". In this case also, the Power of Attorney deed has been executed at Malaysia and sworn before the Notary Public which is also attested by a Gazetted Officer of Malayisian Government.