JOHN KENNADY ALIAS MURUGAN Vs. V BHAGAVATHI

JUDGEMENT

(1.) IVIL Revision Petition filed under Article 227 of the Constitution of India against the fair and decretal order dated 16.2.2008 passed in I.A.No.20126 of 2007 in O.S.No.19 of 2005 passed by the VII Assistant Judge, City CIVIL Court, Chennai.)The defendant in the suit is the revision petitioner before this Court.

(2.) THE suit, O.S.No.19 of 2005 has been filed by the respondent /plaintiff for permanent injunction restraining the defendant from in any manner throwing garbage and interfering with the plaintiff's peaceful possession and enjoyment of the plaint schedule mentioned property. A written statement has been filed by the petitioner/defendant. THE defendant took an application in I.A.No.10895/2005 for appointment of Advocate Commissioner to note down the physical features of the plaint schedule property. THE trial Court declined to entertain the said application. THE same was challenged by way of Civil Revision Petition before this Court in C.R.P.PD.No.634/2007 and the same was allowed and the order of the trial Court was set aside. THE respondent herein challenged the order passed in the Civil Revision Petition by way of S.L.P. before the Honourable Supreme Court and the same was dismissed. THEreafter, the trial Court appointed the Advocate Commissioner who had inspected the property and filed a report. THEreafter, the Power Agent filed the proof affidavit on behalf of the plaintiff in respect of the documents relating to the plaint schedule property prior to the execution and appointment of power agent. Since the proof affidavit is totally contrary to provisions of Order III Rule 1 and 2 of the C.P.C., an application was filed by the petitioner/ defendant in Application No.20126/2007 to reject the proof affidavit filed by the Power of Attorney representing the plaintiff. A counter was filed resisting the said application. THE trial Court passed an order dated 16.2.2008 dismissing the application. Aggrieved by the same, the above revision has been filed by the petitioner/defendant.

(3.) I am unable to accept the contention putforth by the learned counsel for the petitioner. As rightly pointed out by the trial Court, the suit itself has been filed by the Power of Attorney after obtaining leave from the Court. At that point of time, there was no objection raised by the petitioner/defendant. Moreover, the proof affidavit has been filed by the Power of Attorney on behalf of the plaintiff. Therefore, as found by the trial Court, in the proof affidavit , he has referred to certain registered documents executed by the parties prior to the date of execution of the Power of Attorney. Further, there is no legal bar for a power agent to give evidence on behalf of the principals and how far that evidence is valid is to be considered only at the time of disposing of the suit.