Chattisgarh High Court
Nankidai And Ors vs Vijay Lal And Ors on 14 June, 2022
Page 1 of 15
AFR
HIGH COURT OF CHHATTISGARH, BILASPUR
SA No. 377 of 2012
Reserved on : 21.03.2022
Delivered on : 14.06.2022
1. Nankidai, Wd/o Late Hemraj, Aged About 72 Years, Caste- Teli,
R/o Village- Kandola, Tehsil- Baramkela, Post- Bonda, P.S.-
Sariya, District- Raigarh (C.G.) Pin- 496854
2. Sakravati, D/o Late Hemraj, Caste- Teli, Aged About 47 Years,
W/o Bodhan Teli, R/o Chevaripali, Post- Barpali, P.S.- Sariya,
Tehsil- Baramkela, District- Raigarh (C.G.) Pin- 496854
3. Bijali Bai, D/o Late Hemraj, Aged About 45 Years, W/o Devdhar,
R/o Village- Kounva Tal, P.O., P.S. & Tehsil- Pusoure, District-
Raigarh (C.G.) Pin- 496854
4. Sulochana Bai, D/o Late Hemraj, Aged About 35 Years, Caste-
Teli, W/o Babu Lal, R/o Village- Domadih, Post- Malda, P.S. &
Tehsil- Sarangarh, District- Raigarh (C.G.) Pin- 496445.
5. Rampyari, D/o Late Hemraj, Aged About 32 Years, Caste- Teli,
W/o Amrit Lal, R/o Village- Bayang (Bhadrapali), Post- Kachar,
P.S.- Kotra Road, Raigarh, Tehsil & District- Raigarh (C.G.) Pin-
496001.
---- Appellants
Versus
1. Vijay Lal, S/o Late Harihar, Aged About 48 Years.
2. Raj Kumar, S/o Late Hemraj, Aged About 42 Years.
3. Videshi Lal, S/o Late Harihar, Aged About 37 Years.
All by Caste- Teli, Respondents No. 1 to 3 are R/o Village-
Kandola, Post- Bonda, P.S.- Sariya, Tehsil- Baramkela, District-
Raigarh (C.G.) Pin- 496554.
4. Bali, D/o Late Harihar, Aged About 55 Years, W/o Lachhman, R/o
Village & Post- Sankara, P.S.- Sariya, Tehsil- Baramkela,
District- Raigarh (C.G.) Pin- 496854.
5. Indarmati, D/o Late Harihar, Aged About 44 Years, W/o
Neelkantha, R/o Village- Baramkela, P.S., P.O. & Tehsil-
Baramkela, District- Raigarh (C.G.) Pin 496854.
6. Vedmati, D/o Late Harihar, Aged About 35 Years, W/o Jadumani,
Caste- Teli, R/o Village- Dongapali, Post, P.S. & Tehsil- Bathli,
District- Bargarh (Orissa) Pin- 0768028.
7. Lachhmi Bai, D/o Late Hemraj, Aged About 53 Years, W/o
Kartikeswar, R/o Village- Dongipali, Post, P.S. & Tehsil- Bhathli,
District- Bargarh (Orissa) Pin- 0768028.
8. Kamla Bai, D/o Late Hemraj, Aged About 50 Years, Caste- Teli,
W/o Hrishikesh, R/o Village & Post- Bhathli, P.S.- Sariya, Tehsil-
Baramkela, District- Raigarh (C.G.) Pin- 496854.
9. State of Chhattisgarh, Through: Collector Raigarh, P.S. &
District- Raigarh (C.G.) Pin- 496001.
---- Respondents
For Appellants : Mr. S.N. Nande, Advocate.
For Respondents No. 1 to 8 : Mr. H.S. Patel, Advocate.
For State/Respondent No. 9 : Mr. Ravi Pal Maheshwari, P.L.
Hon'ble Shri Justice Narendra Kumar Vyas
C.A.V. JUDGMENT
1. This second appeal has been filed by the appellants/plaintiffs
under Section 100 of the C.P.C. against judgment and decree
dated 14.08.2012 passed by Additional District Judge,
Sarangarh, District- Raigarh (C.G.) in Civil Appeal No. 04A/2011
(Vijay Lal & others Vs. Nanki Dai & others) whereby the
judgment and decree dated 30.03.2011 passed by Civil Judge
Class-I, Sarangarh, District- Raigarh (C.G.) in Civil Suit No.
52A/2011 for declaration of title and possession of the suit
property mentioned in Schedule- C & D of the plaint, has been
set aside.
2. For the sake of convenience, the parties shall be referred to in
terms of their status in Civil Suit No. 52A/2011 which was filed
for declaration of title and possession of the suit property.
3. The instant Second Appeal is admitted for hearing by this Court
vide its order dated 08.11.2012 on the following substantial
question of law:-
"Whether the lower appellate Court was justified in
allowing the appeal and dismissing the suit filed by
the appellant instead of remanding the same in
absence of any valid written statement/ pleadings
on behalf of the then defendant Harihar ?"
4. The brief facts, as reflected from the plaint averment, are that the
plaintiff has filed Civil Suit No. 16A/2007 before Civil Judge
Class-II, Sarangarh, District- Raigarh (C.G.) for declaration of
title and possession mainly contending that the property
mentioned in Schedule-A of the plaint situated at Village-
Kandola, Patwari Halka No. 35, Revenue Circle- Sariya, Tahsil-
Sarangarh, District- Raigarh (C.G.) is recorded in the name of
ancestor of plaintiffs and defendants namely Anandram. The
property mentioned in Schedule-B of the plaint situated at
Village- Sukhapali, Patwari Halka No. 30, Revenue Circle-
Sariya, Tahsil- Sarangarh, District- Raigarh (C.G.) is agricultural
land, which is also recorded in the name of ancestor of the
plaintiffs and defendants. The property situated at Village-
Bhikhampura, Patwari Halka No. 39, Revenue Circle- Sariya,
Tahsil- Sarangarh, District- Raigarh (C.G.) total 14 plots, area
admeasuring 4.634 Hectares is also ancestral property recorded
in the name of their ancestor, which has already been partitioned
between the parties on the basis of oral partition and recorded in
the revenue record.
5. It has been further contended that after death of Anandram, the
property mentioned in Schedule-A & B of the plaint has already
been partitioned between husband of plaintiff No. 1- Late Hemraj
and Harihar prior to 35-40 years in the year 1970. Accordingly,
the property mentioned in Schedule- C & D of the plaint are
separate share of Late Harihar and he was in possession of that
property and doing agricultural work. Plaintiff No. 1- Nanki Dai's
husband-Late Hemraj and Harihar have already orally
partitioned the house and movable property situated at Village-
Kandola and they are in possession of their separate share of
property, as such, there is no dispute with regard to this property.
It has been further contended that plaintiff No. 1- Nanki Dai is
second wife of Hemraj. His first wife-Sukhelibai expired prior to
50-52 years having two daughters, thereafter, plaintiff No. 1 got
marriage as per family customs and from their wedlock, four
daughters were born. It has been further contended that on
27.11.2002, since the plaintiffs have no male child, defendant
No. 1 with intent to take possession of the agricultural land, has
removed crop stand in the land allotted to plaintiff No. 1 through
oral partition. Against that, the plaintiff has lodged FIR at Police
Station- Sariya and also filed an application before the Sub
Divisional Officer, Sarangarh for seizing the crop, in which,
possession has been directed in favour of plaintiff No. 1 whereas
defendant No. 1 is still continuing the dispute. Considering this
aspect of the dispute created by defendant No. 1, plaintiff has
filed an application before Naib Tahsildar, Sariya for recording
their names in the property situated at Village- Kandola and
Sukhpali. Accordingly, vide order dated 30.08.2005, the property
of husband of plaintiff No. 1 Hemraj was directed to be
partitioned. The plaintiff has filed revision against the order
passed by the Naib Tahsildar which was also dismissed, which
has necessitated the plaintiff to file the civil suit.
6. On the above factual matrix, the plaintiffs have prayed for (1)
declaration of title for the property mentioned in Schedule- C & D
of the plaint on the basis of oral partition between the plaintiffs
and defendants No. 2 & 3, (2) order passed by the Naib
Tahsildar with regard to the possession of the properties situated
at Village- Kandola & Sukhpali be declared as null and void & (3)
possession of the suit property may kindly be restored in favour
of the plaintiffs.
7. The trial Court issued notice to the defendants. Defendant No. 1
has filed his written statement denying the allegations made in
the plaint contending that his elder brother Late Hemraj has
taken Rs. 50,000/- and other movable property at the time of oral
partition, which was in addition to the partition and he has also
stated that the order passed by the Naib Tahsildar dated
03.05.2007 is also illegal as it has been passed without giving
any opportunity to defendant No. 1. It has also been contended
that defendant No. 1 has also preferred an appeal before Sub
Divisional Officer, Sarangarh against the order passed by Naib
Tahsildar with regard to land situated at Village- Kandola and
Sukhapali on 03.05.2007 and would pray for dismissal of the
suit.
8. Defendants No. 2 & 3 have also filed their written statements
denying the allegations made in the plaint mainly contending that
the parties are in possession of their property as per oral
partition, accordingly, Naib Tahsildar, Saragarh has directed for
partition. The said order has been approved by the Additional
Collector, accordingly, the records have been corrected, as such,
it is binding upon the parties. It has also been further contended
that Surbeli is the first legally wedded wife of Hemraj, as such,
defendants No. 2 & 3 be given ½ share of all the properties of
Hemraj, therefore, the plaintiffs are not entitled to get any relief
against the defendants No. 2 & 3 and would pray for dismissal of
the suit against defendants No. 2 & 3.
9. On the pleadings of the parties, learned trial Court framed as
many as four issues- (1) Whether the plaintiffs and defendants
No. 2 & 3 are title holder and in possession of the property
mentioned in Schedule- C & D of the plaint as per earlier oral
partition? (2) Whether the order passed by the Naib Tahsildar
with respect to the property mentioned in Schedule-A & B of the
plaint, is liable to be declared null and void? (3) Whether the
plaintiffs are entitled to get possession from defendants No. 1 &
3? & (4) Relief and cost.
10. Learned trial Court vide its judgment and decree dated
30.03.2011 has decreed the suit in favour of the plaintiffs and
directed that the plaintiffs and defendants No. 2 & 3 are entitled
to get title over the property mentioned in Schedule C & D of the
plaint as per oral partition taken place between them. It has also
been directed that if the plaintiffs have dispossessed from their
share of the suit property mentioned in Schedule- C & D of the
plaint, they will be restored back and are entitled to get
possession. Against that, defendants No. 1 to 3 have preferred
first appeal under Section 96 of the C.P.C. before the learned
Additional District Judge, Sarangarh, which has been allowed
vide judgment and decree dated 14.08.2012 dismissing the suit
filed by the plaintiffs on the count that Harihar has not filed any
written statement nor written statement filed by Vijay Lal can be
treated as written statement filed by Harihar. Learned First
Appellate Court has also recorded that Harihar expired and Vijay
Lal became party on 23.04.2009 being legal representative of
deceased Harihar whereas the defendant No. 1 who was
already appearing as defendant No. 1, has signed the
Vakalatnama on 24.01.2008 at that time, he was not made party
to the suit, as such, the written statement filed by him, cannot be
said to be legally filed written statement, as such, the objection
raised in the written statement is not acceptable, therefore, issue
raised by the trial Court is also not correct. Accordingly, the
decision taken by the trial Court is also not correct. Thus, the
First Appellate Court has set aside the judgment and decree
passed in favour of the plaintiffs.
11. Learned counsel for the appellants/plaintiffs would submit that
defendant No. 1 namely Harihar having been summoned for
appearance before the learned trial Court on 27.10.2007 through
duly appointed counsel and in pursuance of the notice issued by
the trial Court, defendants No. 1 & 3 have entered into
appearance on 30.11.2007 and on 24.01.2008, defendant No. 2
has entered appearance. The order-sheet of the trial Court
would reflect that power of attorney dated 15.01.2008 executed
by defendant No. 1-Harihar in favour of Vijay Lal was filed on
24.01.2008 along with written statement of defendants No. 1 &
3. No one on behalf of defendant No. 4 has appeared, therefore,
exparte proceedings were done. The power of attorney provides
that Harihar being suffering from paralysis was unable to move
from his house and has appointed his son Vijay Lal as power of
attorney holder, who was authorized to file written statement and
also authorized to execute the compromise in the case. The
power of attorney further provides that all the proceedings taken
by the power of attorney holder will be deemed to be action
taken by him and it will be binding upon him without any
reservation. It is also reflected that written statement signed and
verified by Vijay Lal has filed written statement on behalf of
defendant No. 1 on 24.01.2008 denying the allegations made in
the plaint and prayed for dismissal of the suit. The records of the
trial Court would further show that on the basis of power of
attorney, Vijay Lal has also filed Vakalatnama on 26.03.2008.
Defendant No.2-Laxmibai & defendant No. 3-Kamla Bai have
filed their written statements separately, which was taken on
record. Issues have been framed on 12.02.2008 & 30.03.2011.
On 02.03.2009, the plaintiff moved an application under Order
22 Rule 4 of C.P.C. on the count that defendant No. 1 expired
and the learned trial Court issued notice to the proposed legal
representatives of defendant No. 1. Defendant No. 1b-Vijay Lal,
1(c)-Raj Kumar, 1(d)-Videsh Lal, 1(e)-Vati, 1(f)-Indermati & 1(g)-
Vedmati, were brought on record vide order dated 22.04.2009.
The legal representatives have moved an application for
amendment in the written statement filed on behalf of defendant
No. 1 incorporating certain new facts, which was also allowed.
12. In the evidence, the witness examined by the defendant Videsh
Lal has stated that when the written statement was filed at that
time, his father Harihar was alive, but his father Harihar has not
signed the written statement as he was suffering from paralysis
and elder brother Vijay Lal has signed the written statement.
Learned trial Court after appreciating the evidence has decreed
the suit in favour of the plaintiffs. Against that, first appeal was
filed, wherein one of the grounds has been taken that the written
statement was not signed by Harihar, but some other person has
signed the written statement and the learned trial Court has
taken into consideration the defence taken by the person who
was not party to the case. As such, prayed for setting aside the
judgment and decree. Learned First Appellate Court has allowed
the appeal for the reasons mentioned in previous paragraph of
this judgment.
13. I have heard learned counsel for the parties and perused the
entire record of the trial Court with utmost satisfaction.
14. From the records, it is quite clear that defendant No. 1 has filed
written statement signed by Vijay Lal who was power of attorney
holder of Harihar. The execution of power of attorney is
governed by Section 2 of the Powers of Attorney Act, 1882 (for
short "the Act, 1882) as well as Sections 188 & 226 of the Indian
Contract Act, 1872 (for short "the Act, 1872). Section 2 of the Act,
1882, Sections 188 & 226 of the Act, 1872 are necessary for
deciding the present appeal, which are extracted below:-
"Section 2-Execution under power-of-attorney-
The donee of a power-of-attorney may, if he thinks
fit, execute or do any instrument or thing in and with
his own name and signature, and his own seal,
where sealing is required, by the authority of the
donor of the power; and every instrument and thing
so executed and done, shall be as effectual in law
as if it had been executed or done by the donee of
the power in the name, and with the signature and
seal, of the donor thereof.
This section applies to powers-of-attorney created
by instruments executed either before or after this
Act comes into force.
Section 188- Extent of agent's authority- An
agent having an authority to do an act has authority
to do every lawful thing which is necessary in order
to do such act.
An agent having an authority to carry on a business,
has authority to do every lawful thing necessary for
the purpose, or usually done in the course, of
conducting such business
Section 226. Enforcement and consequences of
agent's contracts.- Contracts entered into through
an agent, and obligations arising from acts done by
an agent, may be enforced in the same manner, and
will have the same legal consequences as if the
contracts had been entered into the acts done by
the principal in person."
15. The provisions of Section 2 of the Act, 1882, has come up for
consideration before Hon'ble Division Bench of High Court of
Karnataka in Syndicate Bank Vs. Amitha & other 1, wherein it
has been held at paragraph 20 as under:-
1 AIR 1985 Kar 213 : 1985 ILR Kar 1900
"20. We must not fail to notice that a power of
attorney is a document of convenience. It is a
document which aids all kinds of transactions to be
carried out by the agent in the absence of the
principal. S. 226 of the Contract Act and Section 2
of the Powers of Attorney Act make it abundantly
clear that the principal is liable for all the actions of
his agent. Most people respect the power of
attorney acting in good faith and on the plain
language of the power conferred. If the
construction suggested by the learned counsel for
defendants 3 to 9 is accepted, then more often
than not it would enable the principal to escape his
liabilities and obligations for the acts of his agent."
16. Hon'ble High Court of Karnataka in subsequent judgment in S.V.
Revanaradhya Vs. Sri. Jagadish Mallikarjunaiah
Chakrabhavi2, has held at paragraph 12 & 16 as under:-
"12. Thus, a power of attorney is an authority given
by a formal instrument whereby one person, who is
called the donor or principal, authorises another
person, who is called the donee, attorney, or
agent, to act on his behalf. A general power of
attorney is one by which authority is given to act
for the principal in all matters, or in all matters of a
particular nature, or concerning a particular
business. A special power of attorney is one by
which authority is given to do some particular
specified act. The law relating to powers of
attorney is a branch of the law of agency. Where
the authority of the agent is required to be
conferred by a deed, or the circumstances require
to appoint an agent formally to act for the principal
in one transaction, or a series of transactions, or to
manage the affairs of the principal generally, the
necessary authority is conferred by an instrument
known as power of attorney. It is a document of
convenience, which gives a right to the donee to
use the name of the principal.
16. Section 188 of the Indian Contract Act provides
for the extent of agent's authority. It states that an
agent having an authority to do an act, has
authority to do every lawful thing, which is
necessary in order to do such act. An agent having
an authority to carry on a business, has authority
to do every lawful thing necessary for the purpose,
or usually done in the course, of conducting such
business."
2 ILR 2010 Kar 3774
17. From the above stated factual position and considering the law
on the subject, it is quite vivid that Vijay Lal has filed written
statement being power of attorney holder though not mentioned
in the written statement and no one has raised objection about
the execution of power of attorney in his favour. Defendant No.
1- Vijay Lal has filed appeal contending that the learned trial
Court has taken into consideration the written statement which
was not signed by the competent person whereas he himself
being the power of attorney holder has not raised any question
over the power of attorney executed in favour of defendant No.
1, as such, he is estopped from turning around and saying that
written statement has been filed by unauthorized person. The
learned First Appellate Court has committed gross illegality in
considering the submission without considering the provisions of
the Act, 1882. As such, the impugned judgment and decree
passed by the learned First Appellate Court allowing the appeal
suffers from patent illegality.
18. This Court cannot lose sight of the fact available on record as
original defendant No. 1- Harihar expired on 22.12.2008 and
thereafter, Vijay Lal and other persons namely Raj Kumar,
Videsh Lal, Vati, Indermati & Vedmati were arrayed as party to
the case. Vijay Lal who has signed the written statement and
also filed Vakalatnama being a power of attorney holder after
death of Harihar became legal representative of deceased
Harihar and he along with other legal representatives were
arrayed as party to the case and Vakalatnama was also filed on
behalf of all the legal representatives on 08.04.2008. The
learned First Appellate Court without examining the provisions of
Legal Representatives as defined in Section 2(11) of the C.P.C.
and without considering that the legal representative steps into
the shoes of deceased, it means they are bound by the acts of
the persons in whose shoes they have stepped into and they did
not have any right to setup any individual case or they can be
allowed to file a fresh written statement and has allowed the
appeal on the count that the learned trial Court has considered
the written statement filed by unauthorized person.
19. It has been well settled by the various High Courts that the legal
representatives of a deceased defendant can only step into the
shoes of the deceased defendant and did not have any right to
set up any individual case or to be allowed to file fresh written
statement which has already been filed by the defendant.
Hon'ble Delhi High Court in Vigro Frozen Foods P. Ltd. Vs.
S.K. Gandhi & another3 has held at paragraph 5 as under:-
"5. I agree with the submission of the learned
counsel for the plaintiff, as far as the merit of the
present application is concerned. It is an
undisputed fact that defendants No.1 & 2 had filed
the written statement to the suit. The replication
was also filed by the plaintiff and subsequently, the
issues were framed. The evidence of the plaintiff is
also on record. The defendants have filed their
evidence by way of affidavit and cross-examination
of DW-1 was also partly recorded. There is no
dispute that the applicants are the legal heirs of the
deceased defendants. They have no independent
right, title or interest dehors the claim of the
defendants No.1 & 2. Actually, they have come on
record at a later I.A. No.4139/2010 in CS(OS)
No.1239/2002 Page No.2 of 3 proceeding and
have been impleaded by the plaintiff on the death
of defendants No.1 & 2. They have simply stepped
into the shoes of the deceased defendants. Hence,
they cannot be permitted to set up a new case or to
be allowed to file the fresh written statement which
has already been filed by defendants No.1 & 2. The
application filed by the applicants is highly
misconceived and the same is accordingly
dismissed."
20. Hon'ble Allahabad High Court in New Okhla Industrial
Development Authority Vs. Pooran Singh & others 4, has held
at paragraph 12 to 15 as under:-
"12. Definition of the term "Legal Representative"
contained in Section 2(11) of Code of Civil
Procedure is very wide [See AIR 1949 All 604
(DB)].
13. According to the definition, it includes a
3 (2012) 127 DRJ 339
4 (2004) AIR (Allahabad) 218
person, who in law represents estate of deceased
person. Definition in this Court denotes that those
class of persons on whom the status of a
representative is fastened by reason of death,
whose estate they are held to represent. [See AIR
1929 Oudh 353 (DB)].
14. It is rights and liabilities of the original party that
have to be considered and not those of legal
representative. All that legal representatives can
take up suit at the stage it was left, when original
party (so represented by him) died and to continue
it likewise that defendant is entitled to raise against
a legal representative, any defence other than
those, which he could raise against deceased
plaintiff.
15. A 'legal representative' steps into the shoes of
an original deceased party, who died during
pendency of a proceeding and only represents the
estate of the deceased. He is to continue the
proceedings as could have done by the deceased,
in whose place he is substituted as his 'legal
representative'. It is also well settled that legal
representative can contest a suit/proceeding only
on the basis of 'cause of action', on which
suit/proceeding was contested by the deceased
party and not beyond it."
21. Rajasthan High Court (Jaipur Bench) in Rameshwar Prasad Vs.
Pratap Singh5, has held at paragraph 11 to 14 as under:-
"11. A legal representative must proceed wish the
litigation from the stage where the death of the
plaintiff or defendant had taken place. He is bound
by the pleadings of his predecesor in whose place
he has been substituted. A legal representative
substituted under order 22 Rule 4 C.P.C. cannot set
up a new or individual right. He cannot take up a
new and inconsistent plea or a plea contrary to the
one taken up by the contrary to the one taken up
by deceased. He thus stands in the shoes of the
deceased plaintiff of defendant as the case may be
and must accept the position adopted by his
predecessor that is the deceased plaintiff or the
deceased defendant.
12. Bhawani Singh is, therefore, bound by the
written statement filed by the deceased Takhat
Singh. He cannot be allowed to repudiate the
written statement filed by Takhat Singh. In
Thavazhi Karnavan v. Sankunni A.I.R 1935 Madras
52, the learned Singh Judge has observed :
5 (1990) RRD 257
"A party who cones into the suit as the legal
representative of another party cannot be
allowed to depart from or vary or contradict
the attitude taken up by the party whose
legal representative he is, it is obvious that if
he were permitted to do so, it would be
impossible to conduct any litigation where
legal representatives come in."
13. In Babulal v. Jeshankar A.I.R. 1972 Calcutta
494 the following view has been expressed :
"A legal representative substituted in place
of a deceased defendant cannot be
permitted to make out a new case afresh in
another written statement at this stage. He
has to take up the suit at the stage at which
it was left when the original party died and to
continue it. The only right he has is to make
a defence appropriate to his character as a
legal representative of the deceased
defendant. His case is on a different footing
than the addition of a new defendant which
is governed by O.1 R.10 (iv). Therefore, only
the order for substitution would be served on
the substituted defendant and no fresh writ
of summons could be issued for service on
the substituted defendant."
14. The substituted defendant Bhawani Singh is,
therefore, bound by the written statement filed by
Takhat Singh. "
22. Now coming to the facts of the case, it is quite vivid that Vijay Lal
was earlier power of attorney holder which was never disputed
by the plaintiff also and thereafter, he became legal
representative, as such, he stepped into shoes of deceased
Harihar, therefore, he cannot turn around and could not take a
ground that the learned trial Court has committed illegality in
relying upon the written statement by incompetent person. The
learned First Appellate Court has not examined the case in light
of the facts already brought on record as well as considering the
provisions of Section 2(11) of the C.P.C. with regard to the legal
representative, thus, committed illegality in setting aside the
judgment and decree passed by learned trial Court without
examining the evidence, material on record, but on the ground
which is not permissible under the law and thus, the judgment
and decree passed by the learned First Appellate Court
deserves to be set aside and accordingly, it is set aside.
Consequently, the matter is remitted back to the First Appellate
Court to decide the appeal filed by Vijay Lal and other
defendants on merit taking into consideration the defence taken
by them in the written statement filed before the trial Court within
an outer limit of six months from the date of receipt of copy of
the judgment and decree passed by this Court.
23. The parties are directed to appear before the learned First
Appellate Court i.e. Additional District Judge, Sarangarh, District-
Raigarh (C.G.) on 13th July, 2022.
24. It is made clear that this Court has not commented anything on
merits of the case and only examined the substantial question of
law framed by this Court with reference to the illegality
committed by the learned First Appellate Court.
25. Accordingly, the instant second appeal is allowed. No order as to
costs.
26. A decree be drawn up accordingly.
Sd/-
(Narendra Kumar Vyas)
Judge
Arun
HEAD-NOTE
Every action done by the power of attorney holder, will deem to
be done by the executant of the power of attorney holder unless
restriction is imposed.
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