KANAI KARMAKAR Vs. SUBAL KARMAKAR

JUDGEMENT

(1.) Heard Mr. N Alam, learned counsel for the petitioner. Also heard Mr. N Dhar, learned counsel for the respondent nos. 1 and 2 and Mr. M Hussain, learned counsel for the proforma respondent no. 3.

(2.) Two suits i.e. Title Suit No. 44/2012 and Title Suit No. 45/2012 are preferred respectively by Jyoti Roy Choudhury and Ashok Roy Choudhury as plaintiffs for specific performance of contract, recovery of possession and permanent injunction against the present petitioner (defendant no. 1) and the respondent nos. 1 and 2 (defendant nos. 2 and 3) and their late mother (defendant no. 4). After filing of the suit, the present petitioner who is the defendant no. 1 in both the suits, on the strength of a general power of attorney by the present respondent nos. 1 and 2 and their late mother authorised the present petitioner to take steps in the suits. It would not be out of place to mention here that the respondent nos. 1 and 2 settled permanently at Cooch Behar in the state of West Bengal leaving their paternal property to be managed and looked after by the present petitioner on the strength of the aforesaid authority. The present petitioner filed written statement in both the suits on behalf of all the defendant nos. 2 and 3 including himself as the name of the mother of the present petitioner and the respondent nos. 1 and 2 was struck out owing to her death. The said written statements were accepted by the court of learned Civil Judge, Barpeta. Both the suits proceeded in the same court. While the same were at the stage of plaintiff's evidence, the respondent no. 1 who is the defendant no. 2 in both the suits filed petition no. 917/2014 dated 27.06.2014 in Title Suit No. 44/2012 and petition No. 918/2014 dated 27.06.2014 in Title Suit No. 45/2012 thereby seeking the leave of the court below to file a separate written statement instead of the one filed by the petitioner on behalf of the respondent nos. 1 and 2. The said prayer was objected by the present petitioner by filing his written objection. The objection raised by the present petitioner is based on paragraph 5 of the registered deed of General Power of Attorney No. 68/2006 dated 19.08.2006. In the said paragraph 5 it is stipulated that the executants agreed that all acts, deeds and things lawfully done by the said attorney (petitioner) shall be construed as acts, deeds and things done by them and they undertook to ratify and confirm whatsoever that the attorney (petitioner) had done lawfully or caused to be done for them on the strength of authority given by them. The said petition of the respondent no. 1 was allowed by the impugned order dated 16.06.2015 passed by the learned Civil Judge, Barpeta in both the suits. While passing the impugned order the learned court below made its observation which is reproduced hereinbelow:-

(3.) Mr. Alam, learned counsel for the petitioner in both the revision petitions, submits that by virtue of the ratification clause the present petitioner is fully authorised even till today to act on behalf of the said respondent nos. 1 and 2 irrespective of the fact that one of the executants i.e. the mother of the petitioner and the respondent nos. 1 and 2 had died. It is the further contention of Mr. Alam that had there been no interest involved so far the present petitioner is concerned with respect to the subject matter of the deed of attorney similar to the one of the executants then on the death of one of the executants the authority given to him would remain revoked. But that is not the case inasmuch as the petitioner along with the respondent nos. 1 and 2 are on the same footing having the joint interest over the subject matter of the deed of power of attorney. Further it is pointed out by Mr. Alam that the registered deed of power of attorney is still in force inasmuch as the legal heirs of deceased executant are represented in the deed and as such, even if the executant who is the mother of the present petitioner and the respondent nos. 1 and 2 had died her interest devolved equally on all the parties to the deed of power of attorney. Accordingly, Mr. Alam submits that the authority given to him by his brothers along with his mother shall always remain in force until and unless the same is revoked by following due process of law. In view of the said position, the learned court below erred in law in allowing the relief sought for by the defendant/respondent no. 1 and accordingly interference by this court is required.