Telangana High Court
Sri. Danda Amarender vs M/S. Lakshmi Garden on 14 November, 2024
Author: T. Vinod Kumar
Bench: T. Vinod Kumar
THE HON'BLE SRI JUSTICE T. VINOD KUMAR
CIVIL REVISION PETITION No.3392 of 2024
ORDER:
Heard learned counsel for the petitioner and Sri J.Suresh
Babu, learned counsel for 1st respondent, and perused the record.
2. This Civil Revision Petition is preferred against the order
dated 25-07-2024 passed in I.A.No.511 of 2023 in O.S.No.17 of
2014 on the file of the I Additional District Judge at Nalgonda,
whereby the said Interlocutory Application is dismissed.
3. The Revision petitioner herein is plaintiff in the
aforementioned suit filed for dissolution of the 1st respondent /
defendant partnership firm.
4. In the aforesaid suit, the petitioner herein has filed the
underlying Interlocutory Application to receive the General
Power of Attorney (GPA) executed by him and permit the Power
of Attorney Holder to represent the Revision petitioner in the
aforementioned suit.
5. Upon the petitioner executing the General Power of
Attorney authorizing V.Narsi Reddy, S/o. Rami Reddy to
represent the petitioner as his Power of Attorney Holder, the
GPA Holder has filed two Interlocutory Applications under Rule
32 and 33 of the Civil Rules of Practice (for short 'the Rules') to
receive the GPA and permit him to prosecute the suit.
6. On the aforesaid Interlocutory Applications being filed, the
1st respondent herein had filed its counter to the aforesaid
Interlocutory Applications.
7. The 1st respondent herein opposed the underlying
Interlocutory Application being I.A.No.511 of 2023 by filing
counter. The 1st respondent inter alia contended that no reasons
have been assigned in the petition as to why the
petitioner/plaintiff is unable to attend the Court; and that the
petitioner/plaintiff did not file his affidavit in terms of Rule 33 of
the Rules, and sought for dismissal of the Interlocutory
Application.
8. The trial Court, on consideration of the aforementioned
Interlocutory Applications, while allowing the Interlocutory
Application filed under Rule 32 of the Rules, however, dismissed
I.A.No.511 of 2023 filed under Rule 33 of the Rules whereby the
GPA Holder had sought permission to give evidence, conduct
and participate in the proceeding of the suit.
9. The trial Court, having regard to Rule 33 of the Rules, had
observed that Rule 33 of the Rules deals with instances where
the agent signs and verifies the proceedings on behalf of his
principal; and that it requires an affidavit of the principal
appointing the said agent duly verifying the signature of the
agent besides stating the reasons for principal's inability to sign
or verify the proceeding. The trial Court by observing as above,
had held that since the principal did not file such an affidavit, the
application filed under Rule 33 of the Rules cannot be allowed,
and accordingly dismissed the underlying Interlocutory
Application.
10. The trial Court also took note of the fact that in the facts of
the present case, since the agent seeks to adduce evidence on
behalf of the principal i.e. petitioner/plaintiff, the requirement as
mandated under Rule 33 of the Rules must be complied with and
the agent along with the underlying Interlocutory Application,
except fling the certified copy of the Power of Attorney, did not
file the affidavit of the principal/plaintiff with all the reasons and
particulars as stipulated under Rule 33 of the Rules and as such,
permission cannot be accorded to the agent either to sign the
pleadings or adduce evidence much less to conduct the suit on
behalf of the principal/plaintiff.
11. Assailing the same, the present Civil Revision Petition is
filed.
12. On behalf of Revision petitioner, though it was sought to be
contended that since Rule 33 of the Rules deals with signing or
verification by agent, the affidavit that is required to be filed in
terms of said Rule is that of the agent and not of the principal.
13. It is also contended that Rule 32 of the Rules deals with the
party appearing by agent and thus, the procedure laid down
thereunder is required to be complied by the party appointing the
agent and that the same is at variance with the procedure
prescribed to be followed by agent so appointed by the principal.
14. Thus, it is contended on behalf of the Revision petitioner
that the impugned order passed by the trial Court is without
proper appreciation of the scope and applicability of Rule 33 of
the Rules and thus, the same warrants interference by this Court
in exercise of Revisional jurisdiction.
15. Per contra, learned counsel appearing on behalf of
1st respondent would contend that Rule 33 of the Rules, though
deals with signing and verification by the agent stipulates that if
any proceeding which is required to be signed or verified by a
party, is required is signed or verified by his agent, the written
authority of the party who is required to sign otherwise is to be
filed into Court together with an affidavit of the said person
stating therein the reasons of his inability to sign or verify the
proceeding by himself, for which the agent is being authorized.
16. On behalf of the 1st respondent, it is also contended that
inasmuch as the underlying Interlocutory Application as filed is
not accompanied by any affidavit of the principal/plaintiff
explaining the reasons of his inability to sign/verify the
proceeding himself and also verifying the signatures of the
person signing on his behalf, the order of the trial Court being in
consonance with the Rules does not call for any interference, and
seeks for dismissals of the Revision Petition.
17. I have taken note of respective contentions urged.
18. Though, on behalf of the petitioner it is contended that Rule
32 is applicable in relation to the party appearing by agent i.e.
principal and Rule 33 deals with signing or verification to be
undertaken by the agent, firstly, it is to be noted that Rule 32 of
the Rules deals with appearance of a party before the Court
through agent, while Rule 33 of the Rules deals with signing or
verification. Thus, both the Rules are independent of one
another.
19. Secondly, the heading of Rule 33 of the Rules reads as
"Signing of verification by Agent". A plain reading of the said
Rule shows that same stipulates that a party who is otherwise
required to sign or verify any proceeding under any provision of
law or Rules thereunder, instead of being signed or verified by
himself, is signed or is verified by any person on his behalf, a
written authority signed by such party is required to be filed into
Court along with an affidavit verifying the signature of the said
party and also stating the reasons for his inability to sign or
verify the proceeding. The use of the word "his inability" to sign
or verify the proceeding used in Rule 33 of the Rules would
clearly show that the reference is to the inability of the party who
is otherwise required to sign the proceeding himself and for the
said purpose the other person being authorized to sign on his
behalf, who would be considered as his agent.
20. In the facts of the case, though the petitioner/plaintiff had
appointed an agent, whereby the petitioner/plaintiff is to be
considered as principal while the Power of Attorney holder as
agent, the affidavit of the petitioner/plaintiff as stipulated under
Rule 33 of the Rules indicating the reason for his inability to sign
the proceeding by himself and verifying the signature of the
agent has not been filed. On the other hand, only an affidavit of
the agent is filed along with the Interlocutory Application, which
course of action adopted cannot be considered as being in
compliance with Rule 33 of the Rules.
21. A Division Bench of erstwhile High Court of Andhra
Pradesh in Natubhai Chotabhai Patel Vs. Patnam Shakuntala
and another 1 in similar circumstance, had held as under:
"15. ..... But if an agent is authorized to undertake the signing
of pleadings, adducing of evidence and advancing of arguments,
the agent shall be permitted in writing and the party has to file
an affidavit that he has duly authorized the agent to represent
him instead of an Advocate. In case of a party executing a
General Power of Attorney in favour of another person, the
General Power of Attorney holder also cannot be permitted to
represent the party in the suit for all purposes namely to sign the
pleadings, to adduce evidence and to advance arguments unless
an affidavit is filed by the party affirming that he has authorized
his General Power of Attorney holder to represent his case for
the above purposes. .."
22. Further, in Janab Syed Kazim Sahab Vs. Janab Sayeed
Bakaran Sahab (died) by L.R. and another 2 the erstwhile High
Court of Andhra Pradesh while considering Rule 33 of the Rules,
had held as under :
"24. .... In deed there is no conflict between the C.P.C. and Rule
33 CRP. Rule 33 is an additional provision and not repugnant to
any provision in the C.P.C. and, therefore, if a rule like 33 were
2012(4) ALD 553 (DB)
1989 SCC online AP 502
to fall for consideration before the Supreme Court, what would
have been the judgment? May be, it might have held on the
principle of generalia specialibus non derogant that Rule 33
must be given effect to in preference to C.P.C. ...."
In the said case, it was further held as under:
"25. ..... But however in order to hold the said plaint to be valid,
it must be accompanied by an affidavit of the executant of the
GPA in terms of Rule 33. ..."
23. Thus, having regard to the stipulation of Rule 33 of the
Rules and also the legal position as settled above, this Court is of
the considered view that the reasons assigned by the trial Court
while dismissing the underlying Interlocutory Application are
valid and thus, the impugned order does not call for any
interference by this Court in exercise of its supervisory
jurisdiction under Article 227 of the Constitution of India.
24. Accordingly, the Civil Revision Petition being devoid of
merit is dismissed. No costs.
25. As a sequel, miscellaneous petitions pending if any shall
stand closed.
____________________
T. VINOD KUMAR, J
Date: 14.11 .2024
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