Delhi High Court
Santosh Kakar vs Vivek Bhushan on 14 September, 2012
Author: M. L. Mehta
* THE HIGH COURT OF DELHI AT NEW DELHI
+ CM(M) 1026/2012
Date of Decision: 14.09.2012
SANTOSH KAKAR ..... Petitioner
Through: Mr.J.M. Bari with Mr.
Meenakshi Bari, Advocates.
Versus
VIVEK BHUSHAN ..... Respondent
Through: None.
CORAM:
HON'BLE MR. JUSTICE M.L. MEHTA
M.L. MEHTA, J. (Oral)
1. This petition under Article 227 of the Constitution is filed
impugning order dated 30.03.2011 and 06.08.2012 of
Administrative Civil Judge (ACJ), by the petitioner who was
defendant in the suit.
2. In the suit that was filed by the respondent, the ACJ had
permitted him to file Power of Attorney (POA) executed by its firm
in favour of witness PW-1, vide order dated 30.03.2011. The
petitioner filed an application under Section 151 CPC for recalling
the said order. The same was dismissed by the ACJ vide the
impugned order dated 06.08.2012. The said order is challenged by
the petitioner in the instant petition. The grounds which have been
taken to challenge the said order are the same which are taken before
the ACJ.
3. I have heard the learned counsel for the petitioner and perused
the records.
4. The submission of learned counsel for the petitioner is that
since there was no POA filed by the respondent/plaintiff before or at
the time of examination of PW-1, the same could not be taken on
record. The learned counsel relied upon certain judgments to
substantiate his plea. All the judgments which are relied upon by
the learned counsel for the petitioner, have been rightly noted by the
ACJ to be not applicable to the facts of the instant case, as in those
cases the POA was executed after the filing of the suit and after the
expiry of limitation. In the instant case he noted, and rightly so, that
the POA which was allowed to be filed, was already executed, even
before the institution of the suit. It was only by mistake that the
same was not filed. It was nothing, but an irregularity which had
occurred in not filing the POA and that was a curable one. No doubt
the filing of POA was mandatory at the time of filing of suit or at
least at the time of examination of PW-1, but it does not mean that
the non compliance thereof would result in automatic rejection of
the plaint or that of the POA. The respondent/plaintiff had sought to
rectify the defect when it was noticed. In fact, such defects are
curable not only on the application of the respondent/plaintiff, but
even suo moto, by the Court. It is settled law that procedural defects
and irregularities, which are curable, could not be allowed to defeat
substantive rights or to cause injustice. Procedure, a hand maiden to
justice, should never be made a tool to deny justice or perpetuate
injustice, by any oppressive or punitive use.
5. In view of my above discussion, I do not see any merit in the
instant petition. Dismissed.
M.L. MEHTA, J.
SEPTEMBER 14, 2012
awanish
