Madras High Court
Represented By His Power Agent vs Advait Shivkant Nathan on 30 July, 2021
O.S.A.No.237 of 2021
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 30.07.2021
CORAM :
THE HON'BLE MR.JUSTICE N.KIRUBAKARAN
and
THE HON'BLE MRS.JUSTICE T.V.THAMILSELVI
O.S.A.No.237 of 2021
and
C.M.P.No.9752 of 2021
Shivkant Jagannathan
Son of Late (Dr) K.Jagannathan
Aged about 59 years,
No.100 & 101 D Block, 6th Street,
Anna Nagar East, Chennai 600 012
Presently residing at
No.38, The Birches, South Wootton,
King's Lynn, United Kingdom – PE 303JG.
[Represented by his Power Agent:
N.Alaganan
Son of Late Narayanan
Aged about 74 years
No.3, Raju House, Kurangani Road,
Bodinayakkanur, Theni 625 513.] ...Appellant
Vs
1.Advait Shivkant Nathan
Represented by his agent:
Justice V.Ramaswami (Retd.)
No.162, Justice Ramaswami Road,
Kamaraj Avenue, Adyar,
Chennai 600 020.
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O.S.A.No.237 of 2021
2.Sureka Alaganan
3.Minor Ms.Tara
(Minor aged about 14 years)
Represented by her father and Natural Guaradian,
Dr.Shivkant Jagannathan
Both Respondents 2 and 3 residing at:
New No.4, Old No.100, D Block, 6th Street,
Anna Nagar (East), Chennai 600 102.
Both presently residing at:
No.38, The Birches, South Wootton,
King's Lynn, United Kingdom – PE 303JG. ... Respondents
PRAYER : Original Side Appeal filed under Clause 15 of the Letters
Patent read with Order XXXVI Rule 9 of Madras High Court Original
Side Rules praying to set aside the order and decree passed in
Application No.2760 of 2020 in C.S.No.16 of 2013 dated 18.01.2021 and
modified order dated 08.03.2021.
For Appellant : Mr.L.Rajasekar.
For Respondents : Mr.Karthick Seshadri for R1.
JUDGMENT
(Judgment of the Court was delivered by N.KIRUBAKARAN, J)
The matter has been heard through "Video Conference".
2.This Appeal has been filed against the allowing of
Application filed by the Plaintiff for appointment of an Advocate
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O.S.A.No.237 of 2021
Commissioner to examine PW1 who is the Power Agent of the First
Respondent / Plaintiff.
3.The Plaintiff / First Respondent herein is the son of the First
Defendant / Appellant and the Second Respondent herein is the wife of
the Appellant and the Third Respondent herein is the daughter of the
Appellant. The First Respondent herein is the son born to the Appellant
through the First marriage of the Appellant. Thereafter, it is stated that
the Appellant got married to the Second Respondent and out of the
wedlock, the Third Respondent was born. The marriage between the
Appellant and the First Respondent's mother was dissolved as per the
proceedings before the Foreign Court.
4.Contending that the First Respondent has got right over the
property, he has filed a Suit in C.S.No.16 of 2013 against the Appellant
as well as the Second and Third Respondents listing out number of
properties. The said Suit has been filed before this Court through the
Power Agent of the First Respondent. The Power Agent is none other
than the grand father of the First Respondent. When the Suit is taken up
for trial, an Application has been taken out by the First Respondent
herein to examine his Power Agent, as he had been living in United
Kingdom and the deponent, PW1 is aged 94 years. The said Application,
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O.S.A.No.237 of 2021
on contest, was allowed, against which, the Present Appeal has been
filed.
5.Heard Mr.L.Rajasekar, Learned Counsel for the Appellant
and Mr.Karthick Seshadri, Learned Counsel for the First Respondent.
6.This Court, in an endeavor to sort out the issue between the
father and son, asked both of them to appear before this Court through
Video Conference as they have been living in United Kingdom. Though
they appeared before this Court through Video Conference in the last
hearing, in spite of persuasion by this Court, the issue could not be sorted
out effectively. However, this Court was successful in making the son to
speak to his father after sixteen years.
7.Mr.L.Rajasekar, Learned Counsel for the Appellant would
submit that the First Respondent is aged about 34 years and he himself
can appear before this Court and adduce evidence. Secondly, the Power
Agent of the First Respondent is sought to be examined in his residence
and the Appellant cannot get a fair chance of cross examination as there
is no cordial relationship between the Appellant and the Power Agent.
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O.S.A.No.237 of 2021
8.However, this Court is not convinced with the said
arguments, as the Power Agent is none other than the grand father of the
First Respondent. Further, the Learned Counsel for the Appellant would
submit that the Power Agent does not have any authority. A perusal of
the Power of Attorney would denote that the Power of Attorney has been
appointed to institute, commence, prosecute, carry on or defend or resist
all suits and other action and proceedings or be added as a party or be
non suited or withdraw the same concerning my property or any part
thereof, or concerning any matter or thing in which I may be a party in
any court in civil, criminal, revenue or revisional jurisdiction etc., Hence,
it is very crystal clear that carrying on the proceedings in any court in
civil, criminal, revenue or revisional jurisdiction would also include
giving evidence and there is no necessity to explain as to what are all the
things which are required to be done by the Power of Attorney.
9.Secondly, the contention that the Appellant will not get a fair
chance to examine the deponent in his residence is not sustainable. The
Learned Counsel for the Appellant is going to cross examine the Power
Agent of the First Respondent and that would be before the Advocate
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O.S.A.No.237 of 2021
Commissioner appointed by this Court. Further, if the Appellant wanted
himself to be present, Mr.Karthick Seshadri, Learned Counsel for the
First Respondent submits that there will not be any objection or
inconvenience caused to the Appellant, in case he is present at the time
of examination of PW1, Power Agent in his residence. Therefore, that
will take care of the apprehension expressed by the Learned Counsel for
the Appellant.
10.When the grand son is in United Kingdom and he has
authorized a Power Agent, PW1 viz., Grandfather, there should not be
any prohibition either in initiating proceedings or giving evidence on
behalf of the First Respondent. The Power Agent is aged about 94 years
and therefore, it will be inconvenient for him to appear before this Court
and give evidence. Therefore, rightly, the Learned Single Judge has
allowed the Application for appointing an Advocate Commissioner to
examine the Power Agent of the First Respondent in his residence.
11.Since the Appellant expressed his inability in coming down
to Chennai to instruct his Counsel to cross examine the Power Agent of
the First Respondent due to his prior commitments, this Court grants
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O.S.A.No.237 of 2021
three weeks time for the Appellant from today to come down to Chennai
and assist his Counsel and thereby personally be present during the cross
examination of PW1. Considering the age of the Power Agent of the
First Respondent, it is expected that the Appellant shall conclude his
cross examination within a period of ten days.
12.Therefore, this Court is of the view that there is no illegality
or infirmity in the order passed by the Learned Single Judge. Hence, the
Appeal fails and the same is dismissed. No costs. Consequently,
connected Miscellaneous Petition is closed.
(N.K.K.,J.) (T.V.T.S.,J.)
30.07.2021
ay
Index:Yes/No
Internet:Yes/No
http://www.judis.nic.in
O.S.A.No.237 of 2021
N.KIRUBAKARAN, J.
and
T.V.THAMILSELVI, J.
ay
O.S.A.No.237 of 2021
and
C.M.P.No.9752 of 2021
Dated: 30.07.2021
http://www.judis.nic.in
