Deb Ratan Biswas & Ors vs Most. Anand Moyi Devi & Ors

Deb Ratan Biswas and others .. Appellants

-versus-

Most. Anand Moyi Devi & others .. Respondents

J U D G M E N T

Markandey Katju, J.

1. This appeal has been filed against the impugned judgment

and order dated 21.5.2004 passed by learned Single Judge of the

Patna High Court in Civil revision No. 945 of 2002.

2 2. The facts have been stated in the impugned judgment and we

are not repeating the same except where necessary.

3. It appears that a Title Suit No. 186 of 1984 by one Nrisingha

Prasad Biswas and his four sons (who are the appellants herein)

was filed against the respondents herein before the Subordinate

Judge-V, Bhagalpur for partition of certain properties. While the

aforesaid partition suit was pending, the defendants Smt. Pushpa

Biswas and Apurva Kumar Biswas executed a General Power of

Attorney on 31.7.1992 in favour of Umesh Chandra and Dr.

Sanjeev Kumar Mishra and the same was registered. The terms

and conditions giving the powers to the attorneys were specifically

set out in the Power of Attorney itself.

4. On 30.7.1996, the parties to the suit including Pushpa Biswas

and Apurva Kumar Biswas filed a compromise petition which was

forwarded to the Sheristedar for scrutiny and report. On

31.7.1996, on receiving the report of the Sheristedar dated

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30.7.1996, the Subordinate Judge-V, Bhagalpur approved the

terms of the compromise and directed that a decree be passed in

terms of the compromise.

5. Subsequently, on 29.8.1996, a petition purporting to be on

behalf of Pushpa Biswas and Apurva Kumar Biswas was filed

through the attorney Dr. Sanjeev Kumar Mishra under Section 151

CPC being Miscellaneous Case No. 13/16 of 1996 praying for

recalling the order dated 31.7.1996 passed in terms of the

compromise on the allegation that the signatures on the

compromise were forged.

6. On 7.6.2002, the learned Subordinate Judge-V, Bhagalpur

held that Miscellaneous Petition filed at the instance of only one

of the attorneys was not maintainable, as according to the terms of

the power of attorney both the constituted attorneys were entrusted

to act jointly. Hence, he dismissed the Miscellaneous Case filed

by Dr. Sanjeev Kumar Mishra.

4 7. Against that order dated 7.6.2002, the respondents herein

filed a Civil Revision being Civil Revision No. 945 of 2002 which

was allowed by the impugned judgment, and hence this appeal.

8. In the order dated 7.6.2002 in Misc. Case No. 13/96, the

learned Subordinate Judge-V, Bhagalpur considered the prayer of

the applicant in that Miscellaneous Case that the the compromise

petition had not been signed by the petitioners and their signatures

were forged. The finding of fact recorded by the learned

Subordinate Judge-V, Bhagalpur after detailed discussion of the

evidence was that there was no forgery. This finding is based on

material on record and it is a finding of fact. Hence it could not

have been validly interfered with in Civil Revision by the High

Court.

9. In his order dated 7.6.2002, the learned Subordinate Judge-V

Bhagalpur has held that Dr. Sanjeev Kumar Mishra was only an

attorney and he cannot claim any independent capacity in the

proceedings. We agree with this view. The principal Pushpa

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Biswas and Apurva Kumar Biswas have signed the compromise

for partition of the property, which in our opinion in law amounts

to implied revocation of power of attorney in favour of Dr. Sanjeev

Kumar Mishra vide Illustration to Section 207 of the Indian

Contract Act. Pushpa Biswas and Apurva Kumar Biswas cannot

be allowed to say that their own act of signing the compromise

petition was collusive and fraudulent.

10. The learned Subordinate Judge-V, Bhagalpur has gone into

the evidence in great detail and recorded findings of fact which

could not have been interfered with by the High Court in civil

revision. It is well settled that in civil revision the jurisdiction of

the High Court is limited, and it can only go into the questions of

jurisdiction, but there is no error of jurisdiction in the present case.

11. We have carefully perused the impugned judgment of the

High Court. The High Court has observed that defendants Nos. 2

and 2a viz., Pushpa Biswas and Apurva Kumar Biswas should

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have consulted the power of attorney Dr. Sanjeev Kumar Mishra

before signing the compromise petition. This is a strange kind of

reasoning. The principal is not bound to consult his attorney

before signing a compromise petition.

12. The High Court has also held that if Dr. Sanjeev Kumar

Mishra was not willing to sign the compromise petition his

unwillingness should have been mentioned in the compromise

petition. This also is a strange reasoning. It is well-settled that

even after execution of a power of attorney the principal can act

independently and does not have to take the consent of the

attorney. The attorney is after all only an agent of the principal.

Even after executing a power of attorney the principal can act on

his own.

13. For the reasons given above this appeal is allowed. The

impugned judgment and order of the High Court is set aside and

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the order dated 7.6.2002 of the learned Subordinate Judge-V,

Bhagalpur is restored. There shall be no order as to costs.

............................J.

(Markandey Katju)

............................J.

(Gyan Sudha Misra)

New Delhi;

April 15, 2011