M.J. Sobhanakumari (through Power of Attorney Holder M. Amrutha Kumar) v Rajasekharan Nair

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT :** **THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH** **TUESDAY, THE 1ST JUNE 2010 / 11TH JYAISTHA 1932** ## **WP(C).NO. 1492 OF 2010(O)** **--------------------------------------AGAINST THE ORDER DATED 16/12/2009 IN IA 4212/08 IN OS.782/2008 OF PRINCIPAL MUNSIFF,ALAPPUZHA** **....................** ## **PETITIONER(S):** **------------------------** **M.J.SOBHANAKUMARI, MADHAVA MANGALAM, MATHOOR, THOTTUVATHALA MURI, NEDUMUDI VILLAGE, REPRESENTED BY POWER OF ATTORNEY HOLDER M.AMRUTHA KUMAR, 38/1550, BMRA-98, EDAPPALLI, KOCHI-24.** **BY ADV. SRI.H.HAMSA RAWTHER SRI.V.K.PEERMOHAMED KHAN** ## **RESPONDENT(S): PETITIONER/2ND DEFENDANT** **---------------------------------------------------------------------** **RAJASEKHARAN NAIR, VETTUVELIL HOUSE, PERUMPETTY MURI, PERUMPETTY VILLAGE.** **ADV. SRI.K.P.RAMACHANDRAN FOR R1 SRI.PADMALAYAN.P.P. FOR R1 SRI.SEBASTIAN JOSEPH (KURISUMMOOTTIL) FOR R1 SMT.BINDHU PAULOSE FOR R1** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 01/06/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** ## **APPENDIX ---------------** ## **PETITIONER'S EXHIBITS: ----------------------------------** **EXHIBIT P1 TRUE COPY OF THE PLAINT SUBMITTED BY THE PETITIONER IN O.S. NO.782 OF 2008.** **EXHIBIT P2 TRUE COPY OF THE PETITION FILED BY THE RESPONDENT AS I.A. NO.4212 OF 2008.** **EXHIBIT P3 TRUE COPY OF THE OBJECTION FILED BY THE PETITIONER IN I.A. NO.4212 OF 2008.** **EXHIBIT P4 TRUE COPY OF THE ORDER PASSED BY THE PRINCIPAL MUNSIFF'S COURT, ALAPPUZHA IN I.A. NO.4212 OF 2008 IN O.S.. NO.728 OF 208.** ## **RESPONDENT'S EXHIBITS:** **-----------------------------------** **EXHIBIT R1(a) TRUE PHOTOSTAT COPY OF THE AUCTION CERTIFICATE DATED 31.8.2006 OF THE HONOURABLE ADDITIONAL MUNSIFF'S COURT, ALAPPUZHA.** **EXHIBIT R1(b) TRUE PHOTOSTAT COPY OF THE TAX PAID RECEIPT DATED 5.11.2008 ISSUED BY THE NEDUMUDI VILLAGE OFFICER IN FAVOUR OF THE RESPONDENT'S** **EXHIBIT R1(c) TRUE PHOTOSTAT COPY OF THE REGISTERED SALE DEED NO.3123 OF 2008 OF THE PULINKUNNU SUB REGISTRY DATED 24.11.2008 EXECUTED BY RESPONDENT IN FAVOUR OF RAVIKUMAR.** **EXHIBIT R1(d) TRUE PHOTOSTAT COPY OF THE APPLICATION DATED 24.1.2008 SUBMITTED FOR MUTATION OF TITLE IN FAVOUR OF THE PURCHASER RAVIKUMAR ACCEPTED BY COUNTER SIGNING THE APPLICATION BY SUB REGISTRAR, PULINKUNNU.** **EXHIBIT R1(e) TRUE PHOTOSTAT COPY OF THE INJUNCTION ORDER DATED 1.12.208 IN O.S. NO.750 OF 2008 BY THE HONOURABLE MUNSIFF'S COURT, ALAPPUZHA.** **EXHIBIT R1(f) TRUE PHOTOSTAT COPY OF THE JUDGMENT IN W.P(C) NO.37476 OF 2008 DATED 18.12.2008.** **EXHIBIT R1(g) TRUE CERTIFIED COPY OF THE FORGED GENERAL POWER OF ATTORNEY DATED 3.12.2008 NOTARIZED BY PUBLIC NOTARY SHRI ADV. BEN JOSEPH.** **EXHIBIT R1(h) TRUE PHOTOSTAT COPY OF THE COMPLAINT DATED 19.8.2009 OF THE RESPONDENT SUBMITTED BEFORE THE HONOURABLE BAR COUNCIL OF KERALA.** **EXHIBIT R1(i) TRUE PHOTOSTAT COPY OF THE NOTICE DATED 5.11.2009 O THE HONOURABLE BAR COUNCIL OF KERALA INTIMATING THE COMPLAINANT (RESPONDENT IN WRIT PETITIONER THAT HIS COMPLAINT IS NUMBERED AS CP/82/2009 AND RE-JOINDER AGAINST RESPONDENT'S REMARKS TO BE FILED.** **EXHIBIT R1(j) TRUE PHOTOSTAT COPY OF THE COMPLAINT DATED 6.10.2009 OF THE RESPONDENT SUBMITTED BEFORE THE HONOURABLE ADDITIONAL SECRETARY OF LAW AND JUSTICE DEPARTMENT OF LEGAL AFFAIRS, NEW DELHI.** **EXHIBIT R1(k) TRUE PHOTOSTAT COPY OF THE RE-JOINDER DATED 19.11.2009 SUBMITTED BY THE RESPONDENT BEFORE THE HONOURABLE BAR COUNCIL OF KERALA.** **EXHIBIT R1(l) TRUE PHOTOSTAT COPY OF THE PLAINT SUBMITTED BY THE RESPONDENT BEFORE THE HONOURABLE SUB COURT, ALAPPUZHA AS O.S. NO.252 OF 2009.** **EXHIBIT R1(m) TRUE PHOTOSTAT COPY OF THE PROCEEDINGS OF HONOURABLE CHIEF JUDICIAL MAGISTRATE, ALAPPUZHA DATED 22.6.2001 AND 26.8.2002 AND ORDER DATED 16.5.2001 OF THE HONOURABLE JUDICIAL FIRST CLASS MAGISTRATE-I, ALAPPUZHA EVIDENCING THAT SMT. SOBHANAKUMARI IS ABSCONDED AND NOT APPEARING BEFORE THE COURT.** **TRUE COPY** ## **THOMAS P.JOSEPH, J.** **==================================== W.P(C) No.1492 of 2010 ==================================== Dated this the 01[st] day of June, 2010** ## **J U D G M E N T** Petitioner through his Power of Attorney Holder filed O.S. No.782 of 2008 in the court of learned Prl. Munsiff, Alappuzha for prohibitory injunction. Respondent filed Ext.P2, application to direct petitioner to appear in court in person alleging that petitioner is absconding evading several criminal cases against her and there is no possibility of her executing a Power of Attorney as claimed by the Power of Attorney Holder. He also contended that Power of Attorney is fraudulent. Power of Attorney Holder of petitioner preferred objection stating that Power of Attorney is executed before a Notary Public and sought time to adduce evidence in that regard. Vide Ext.P4, order learned Munsiff accepted the contention of respondent and directed petitioner to be present in court invoking his power under the proviso to Order III Rule 1 of the Code of Civil Procedure (for short, “the Code”). That order is under challenge in this Writ Petition invoking the jurisdiction under Article 227 of the Constitution of India. It is contended by learned counsel for petitioner that in so far as there **W.P(C No.1492 of 2010** ## -: 2 :- is a Power of Attorney attested and authenticated by a Notary Public it carried the presumption under Section 85 of the Indian Evidence Act (for short, “the Act”) and so far as that presumption is not rebutted court below ought to have accepted the Power of Attorney as genuine and hence it was not necessary to direct petitioner to appear in person. Learned counsel for respondent per contra contends that there was no possibility of petitioner executing a Power of Attorney since there is material on record that she was absconding on account of for criminal cases registered against her. 2. No doubt proviso to Order III Rule 1 of the Code empowers the court to direct appearance of a party in person before such court. Question is whether circumstances of this case warranted such a direction to the petitioner. It is not disputed that except the contention regarding validity of Power of Attorney allegedly executed by the petitioner in favour of its holder there was no other reason or circumstance which required petitioner to appear in person in court. It is not disputed that petitioner was represented by a counsel appointed by the Power of Attorney Holder. It is seen from Ext.R1(g), photocopy of Power of Attorney that it is attested and authenticated by a Notary Public. 3. Section 85 of the Act reads, ## **W.P(C No.1492 of 2010** ## -: 3 :- ## “ **Presumption as to powers-of-attorney** .- The Court shall presume that every document purporting to be a power-of-attorney, and to have been executed, and authenticated by, a Notary Public, or any Court, Judge, Magistrate (Indian) Consul or Vice-Consul, or representative of the Central Government, was so executed and authenticated”. Dwelling upon the said provision the High Court of Bombay in ## **P.R. Society v. I.M.P.Restaurant** (AIR 1939 Bombay 347) has stated that under Sec.85 of the Act court shall presume that a power of attorney executed before and authenticated by a notary public was so executed and authenticated and that the provision is mandatory. It is open to the court to presume that all the necessary requirements for proper execution of the power of attorney have been duly fulfilled. The Allahabad High Court has ## taken the same view in **Wali Mohammad v. Jamal Uddin** (AIR (37) 1950 Allahabad 524). It is held that authentication under Sec.85 of the Act is not merely attestation, but means that person authenticating has assured himself of identity of the person who has signed the instrument as well as the fact of execution unless rebutted stands and the document can be admitted in evidence as a document executed by the person **W.P(C No.1492 of 2010** -: 4 :- alleged to have been executed it without any further proof. The Delhi High Court in **Yogesh Singh v. Nrianjan Lal** (AIR 1961 Delhi 222) would say that when the person objecting to the Power of Attorney is not adducing evidence to the contrary presumption that Power of Attorney was duly executed and authenticated by a Notary Public would arise. The Supreme Court had occasion to consider the question in **Jugraj Singh v. Jaswant Singh** (AIR 1971 SC 761). It was held that endorsement of Notary Public that the Power of Attorney has been subscribed and sworn before him arises presumption under Sec.85 of the Act and the Notary Public must have satisfied himself in discharge of his official duty that person executing it is the proper person and that the Notary Public has not stated so is not material. 4. I stated that Ext.R1(g) is the photocopy of the Power of Attorney attested and authenticated by the Notary Public. So much so presumption under Sec.85 of the Act as explained in the decisions quoted above must arise. As of now there is no material on record to rebut that presumption. Mere fact that there were some criminal cases against petitioner and she was not available for arrest is not by itself sufficient to rebut the presumption under Sec.85 of the Act. In the circumstance and in ## **W.P(C No.1492 of 2010** **==> picture [41 x 9] intentionally omitted <==** so far as there was no other purpose to be served by directing presence of petitioner in the court below, learned Munsiff was not correct in ignoring Ext.R1(g) and directing petitioner to appear in person. For the said reason the order under challenge cannot stand. Resultantly, Writ Petition is allowed. Exhibit P4, order dated 16.12.2009 is set aside. That application will stand dismissed. I make it clear that the order will not stand in the way of respondent or any of the contesting parties to the suit rebutting the presumption under Sec.85 of the Act at the time of trial. ## **THOMAS P. JOSEPH, JUDGE.** vsv