DEB RATAN BISWAS Vs MOST. ANAND MOYI DEVI .
Bench: MARKANDEY KATJU,GYAN SUDHA MISRA, , ,
Case number: C.A. No.-002728-002728 / 2006
Diary number: 20414 / 2004
Advocates: RANJAN MUKHERJEE Vs
RESPONDENT-IN-PERSON
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 2728 OF 2006
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.
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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.
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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
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