Bombay High Court
Suresh Machhrumal Goklani vs Raziya Begum Sk. Iqbal Ahmed Thro. ... on 17 March, 2021
Bench: Anil S. Kilor
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
SECOND APPEAL NO.250 OF 2018
Suresh S/o Machhrumal Goklani,
Age-59 years, Occu:Business,
R/o-Mogli Novelties,
Tilak PAath, Aurangabad.
...APPELLANT
(Orig. Defendant)
VERSUS
Smt. Raziya Begum W/o Sk. Iqbal Ahmed,
Age-65 years, Occu:Housewife,
Through her Power of Attorney
Sk. Iqbal Ahmed S/o Sharfuddin,
Age-69 years, Occu:Business,
R/o-House No. 5-18-44,
Paithan Gate, Dist-Aurangabad.
...RESPONDENT
(Orig. Plaintiff)
...
Mr.Shyamsunder H. Jagiasi Advocate for Appellant.
Mr. A.D. Kasliwal Advocate for Respondent.
...
CORAM: ANIL S. KILOR, J.
DATE : 17th MARCH, 2021
ORAL ORDER :
1. Heard learned respective counsel for the parties at length
and thereupon it is revealed that the plaintiff had filed a Special
Civil Suit No. 275 of 2003 through her power of attorney, i.e. her
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husband. The said suit was for possession and perpetual
injunction restraining the defendant from creating third party
interest over the suit shop in municipal house No. 5-18-44 C.T.S.
No. 17692 on the ground floor admeasuring 10 X 12 situated at
Paithan Gate, Aurangabad.
2. It is the case of the plaintiff that since she is the owner
and in possession of the suit shop and there was an agreement
for sale entered into with the defendant, however on alleged
failure to comply with the terms and conditions of the agreement
in respect of payment clause, the sale deed was not executed in
favour of the defendant and the defendant forcibly took the
possession on 6th or 7th of July 2001 as per the police complaint
lodged by the plaintiff on 12th July 2001.
3. The learned trial Court while dismissing the suit,
considered the arguments advanced by the defendant as regards
the authority of the power of attorney to enter into witness box
and depose on behalf of the plaintiff. The learned trial court also
considered the arguments advanced by the learned counsel for
the defendant that the deed of power of attorney was not
referred before evidence is completed and the same was not
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exhibited. The learned trial Court has dealt with said argument in
para 9 of the Judgment and ultimately dismissed the suit.
4. The plaintiff, feeling aggrieved by the dismissal of the suit,
preferred an appeal, namely, Civil Appeal No. 315 of 2012 before
the District Judge-13, Aurangabad, which came to be allowed in
favour of the plaintiff and accordingly the suit was decreed.
5. Learned counsel for the appellant/ defendant has pointed
out that though in para 12 of the Judgment of the learned lower
appellate Court the authority of power of attorney to depose on
behalf of the plaintiff, was questioned and argued and though
the arguments were noted by the learned lower appellate Court
in this regard, however, no findings are given on the said point.
6. It is submitted that the said point goes to the root of the
matter and if the Court comes to the conclusion that there was
no valid deed of power of attorney or the power of attorney
holder was not having any authority to depose on behalf of the
plaintiff, in that case, the decree as passed by the learned lower
appellate Court in favour of the plaintiff, would go.
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7. Learned counsel for the plaintiff/ respondent is not
disputing that the learned lower appellate Court has not given
any finding or discussed or answered the said argument
advanced by the learned counsel for the defendant.
8. In the above referred backdrop, I could have set aside the
order of the learned lower appellate Court and could have
remanded the matter back to the learned lower appellate Court
for a decision afresh. However, looking to the fact that the civil
suit was filed in the year 2003 and the parties are waiting for the
decision over the dispute and if the matter is remanded back for
fresh decision, it may take long time to decide.
9. In the circumstances, I am of the considered view that, to
sub-serve the justice it would be appropriate in the peculiar facts
and circumstances of the present case, to remit the matter for a
limited purpose to answer and decide the contention raised by
the defendant as regards the power and authority of the power
of attorney in this matter.
10. In the circumstances, I pass the following order:-
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ORDER
(I) The matter is referred to the learned District
Judge-13, Aurangabad to consider and answer the
arguments recorded in the Judgment dated 9th
October 2017 in para 12 and 13, and return back
the record and proceedings along with the findings,
after recording the same within three (3) months
from today.
(II) After recording the findings and after answering
the said argument advanced by the defendant, the
learned District Judge-13, Aurangabad shall send
back the record and proceedings, with findings,
within fifteen (15) days thereafter.
(III) The parties shall appear before the learned
lower appellate Court on 30th March 2021.
Thereupon, the learned lower appellate Court may
fix the date for hearing and for further
consideration.
(IV) The Registry is directed to send the record and
proceedings to the learned District Judge-13,
Aurangabad before 30th March 2021.
(V) Registry is further directed to list the matter
within one week on receipt of record and
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proceedings, back from the learned District
Judge-13, Aurangabad.
(VI) Interim relief granted, will continue until further
orders.
[ANIL S. KILOR, J.]
asb/MAR21
