BAKSHI KESHO NATH Vs. STATE OF J&K

JUDGEMENT

(1.) IN a suit for declaration filed by the petitioner in the court of Munsiff, Jammu, the State and the Commissioner Food and Supplies for the State of J&K were impleaded as defendants. Mr. R. P. Bakshi appeared on behalf of the defendants and filed a vakalatnama which was signed only by the Deputy Commissioner Food and Supplies, Jammu. A written statement was also filed on behalf of the defendants which too was signed by the Deputy Commissioner Food and Supplies, Jammu besides Mr. Bakshi the counsel appearing for the defendants. After this was done the plaintiff made an application before the court below that Mr. Bakshi was not duly representing the defendants nor was the written statement on behalf of the defendants signed by a person competent to sign therefore they may be proceeded, against ex -parte. The Munsif considered the question but refused the prayer of the plaintiff by his order dated 26 -3 -1974. This revision is directed against this order of the Munsiff. The petitioner appeared in person, in support of the revision petition and submitted, that the order impugned in the revision was irregular. He has re -iterated before me the submissions made by him before the trial court.

(2.) SO far as the defendant No. 2 is concerned, the contention of the petitioner in my opinion is very well founded and must invoke acceptance. There is only one power of attorney on the file in favour of Mr. R. P. Bakshi. The same is signed by the Deputy Commissioner, Food and Supplies, Jammu. There can be no dispute that Deputy Commissioner Food and Supplies Jammu had no competence to sign a power of attorney on behalf of the Commissioner. Mr. Bakshi could not therefore put in his appearance for and on behalf of the defendant No. 2. Similar is the position regarding the written statement. Admittedly the written statement does not bear the signatures of the defendant No. 2. Legally speaking, therefore, the defendant No. 2 was not only represented before the court nor can it be said that there was any valid written statement before the court below on behalf of the defendant No. 2. There is no proof of due service on the defendant No. 2 in the file. If Mr. Bakshiâ„¢s appearance is held invalid the defendant No. 2 has to be served before he can be proceeded against ex parte. Mr. Bakshi at this stage undertakes to obtain a duly signed power of attorney from the defendant No. 2 and produce the same before the court below on 1 -11 -74. This disposes of the dispute regarding the defendant No. 2 and to this extent the order of the Munsiff is set aside.

(3.) THE position in regard to he 1st defendant namely the State of Jammu and Kashmir, however, is different and in my opinion the order of the Munsiff in so far as it relates to defendant No. 1 cannot be disturbed. In order to appreciate the point at issue, it is necessary to reproduce Rules 1 and 2 of order 27 of C.P.C., Rule 78 of the J&K State Law Deptt. Manual and the Notification S. R. O. 413 dated 18 -8 -73. These provisions on reproduction read as under : -