PUSPA DEVI Vs. ANAND MOYI DEVI

JUDGEMENT

(1.) This civil revision application is directed against the order dated 7.6.2002 passed by the Subordinate Judge V, Bhagalpur in Misc. case No. 13/96/5/02 by which the Court below has dismissed the said misc. case and has thereby refused to recall the order dated 31.7.1996 passed in Title suit No. 186/84 whereunder compromise petition dated 30.7.1996 was accepted and the said title suit was decreed in terms of the aforesaid compromise petition.

(2.) Before proceeding to notice the submissions of the parties, it is appropriate to mention a few relevant fact. The plaintiff- opposite party Nos. 1 to 5 filed Title (Partition) suit No. 186/84 in the Court of Subordinate Judge, Bhagalpur in which they referred to earlier T.S. No. 35/43 which was disposed of in terms of the compromise decree dated 23.7.1945 on the basis of which survey record was published in the name of Sarojendu Biswas. Having made the said reference plaintiff-opposite party Nos. 1 to 5 claimed half share and further pleaded that defendants Ist party i.e. defendant Nos. 1 to 14/opposite party Nos. 6 to 26 herein were entitled to 1/3rd share and defendant No. 15 opposite party No. 27 herein was entitled to 1/6th share respectively in the suit properties. Besides transferees from co- sharers were also added as defendant Nos. 16 to 19 in the suit. While Title Suit No. 186/84 was pending defendant Nos. 2 Smt. Puspa Biswas and 2(a) Apurba Kumar Biswas wife and son of late Sarojendu Biswas, in respect of suit properties, executed general power of attorney on 31.7.1992 (exhibit 6/annexure 7) in favour of two persons namely 1. Umesh Chandra son of Shjvchandra resident of Nawab Road P.S. Kotwali District Bhagalpur and 2. Dr. Sanjeev Kumar Mishra son of Mahendra Nr. Mishra resident of village Gosaidaspur P.O. Champanagar P.S. Nathnagar District Bhagalpur. The said power of attorney was later registered on 3.8.1992. In terms of power of attorney both holders were authorised to negotiate the sale of the suit properties as also to execute the sale deed and to admit the execution after receipt of consideration before the Registrar/sub-Registrar. The holders were also authorised to appoint and engage Solicitor/ counsel and to prosecute and defend civil and criminal actions filed against the executant. The holders were further authorised to sign and verify the plaint, written statement and other pleadings which were required to be filed in connection with civil and criminal action instituted against executant. On 4.8.1992 the Attorney S.K. Mishra executed deed of Zerbeyana (agreement for sale) with respect to the entire suit property on the basis of the power of attorney in favour of his wife and brother namely Nutan Mishra and Pankaj Kumar Mishra petitioner Nos. 3 and 4 herein. The aforesaid deed of zerbeyana (agreement for sale) has been marked as exhibit 7. Having executed the aforesaid zerbeyana deed/agreement for sale the said Dr. S.K. Mishra engaged M/s. Murli Manohar Shukla and Naresh Mohan Thakur (both advocates) to defend and appear on behalf of defendants 2 and 2(a) in the aforesaid title suit. The aforesaid advocates filed their vakalatnama on behalf of the defendant Nos. 2 and 2(a) on 28.4.1993 and thereafter prepared written statement on the basis of the materials made available by the attorney Dr. S.K. Mishra which was filed on 18.5.1993 after verification/affidavit of Dr. S.K. Mishra. In the written statement filed on behalf of defendant Nos. 2 and 2(a) it was averred that the suit as framed was not maintainable on account of non-joinder of necessary party as daughters of Jyotendra Nath Biswas and Subodh Chaudhary were not made party. It was also averred in the written statement that the partition suit as framed should not proceed without payment of ad volorem court-fee as the subject matter of the suit is already concluded by the compromise decree dated 23.7.1945 passed in Title suit No. 35/43 on the basis of which revenue records have already been published and contesting defendants are in possession of the suit properties and they have executed power of attorney dated 31.7.1992/3.8.1992 for better management of the suit properties. Defendant No. 15 filed written statement denying his interest in the suit property but prayed for dismissal of the suit as the suit as framed was neither maintainable nor the plaintiffs had any cause of action. During the pendency of the suit, contesting defendant Nos. 2 and 2(a) filed several petitions praying inter alia to decide the question of maintainability of the suit including payment of ad valorem court-fee as preliminary issues and it appears from the ordersheet dated 2.7.1996, 12.7.1996 and 24.7.1996 as contained in Annexure-11 that hearing of those petitions were being deferred and finally 30.7.1996 was the date fixed for hearing of those petitions. It, however, further appears from the ordersheet dated 30.7.1996 that on that date instead of proceeding with hearing of the maintainability matter as preliminary issue, parties filed compromise petition (Annexure-3) which was forwarded to Sheristedar for scrutiny and report and 31.7.1996 was fixed for receipt of the report of Sheristedar. It also appears from the ordersheet dated 30.7.1996 that another (new) vakalatnama on behalf of defendants 2 and 2(a) and papers on behalf of defendants 10, 1, 3 and 4 was filed whereafter the suit was called for hearing in response whereto parties appeared and they were heard. The report of Sheristedar was also received on 30,7.1996 and, thereafter, the matter was adjourned to 31.7.1996, for orders on the compromise petition. On 31.7.1996 the Court below perused the compromise petition and the report of Sheristedar dated 30.7.1996 approved the terms of the compromise and directed that the suit be decreed in terms of the compromise which should form part of the decree. On 29.8.1996 petitioner Nos. 1 and 2/defendant Nos. 2 and 2(a) filed petition through their attorney Dr. S.K. Mishra under Section 151 of Code of Civil Procedure which was numbered as miscellaneous case No. 13/16 of 1996 (Annexure-6) praying inter alia to recall the order dated 31.7.1996 passed in the title suit on the ground that fraud has been practised as compromise petition was neither signed by defendant Nos. 2 and 2(a) nor by their constituted attorney nor by their lawyer who filed their written statement and conducted the case until new power was filed on their behalf on 30.7.1996 as is evident from the later portion of the order dated 30.7.1996. During hearing of the misc. case parties adduced both oral and documentary evidence as would appear from the list of documents admitted in evidence and contained in Annexure-15. The relevant deposition of the witnesses have also been annexed with the civil revision application and are contained in Annexures-6 and 7. The Court below having considered the oral and documentary evidence passed the impugned order dated 7.6.2002 holding that misc. petition filed at the instance of one of the constituted attorney namely Dr. S.K. Mishra is not maintainable as according to the Court below under the power of attorney Exhibit-6/Annexure-7 both the constituted attorneys were entrusted to act jointly and independent exercise of authority by one of the constituted attorney namely Dr. S.K. Mishra was not permissible and in that view of the matter misc. case filed on behalf of defendant Nos. 2 and 2(a) only by one of the constituted attorney Dr. S.K. Mishra is not maintainable and dismissed accordingly. The Court below while recording the aforesaid order also observed that it had compared the signatures of defendants 2 and 2(a) on the compromise petition with their admitted signatures on the power of attorney and it was satisfied that defendants 2 and 2(a) had signed the compromise petition and as such the same was rightly approved by the trial Court under Order dated 31.7.1996 and there is no ground much less good ground to recall the order dated 31.7.1996.

(3.) Learned counsel for the petitioners assailed the aforesaid order dated 7.6.2002 on the following grounds: