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Andhra High Court
Md. Munawar Hussain vs Usha Kiran Chit Funds And Ors. on 15 September, 2003
Equivalent citations: AIR 2004 AP 63, 2003 (6) ALD 796
Author: G K Tamada
Bench: G K Tamada



ORDER
 

 Gopala Krishna Tamada, J.  

1. This revision is directed against the judgment and decree in Small Cause Suit No. 8 of 1999 dated 26th March, 2002 on the file of the learned Senior Civil Judge, Sathupalli.

2. The suit was one for recovery of money basing on chit agreement for an amount of Rs. 4,000/- and for subsequent interest. On examination of PWs.1 to 3 and getting marked Exs.A-1 to A-13 on behalf of the plaintiffs and on examination of DW-1 on behalf of the defendants, the Court below decreed the suit as prayed for. Against the said judgment and decree, as already referred above, this revision is filed before this Court.

3. The main point urged by the learned Counsel for the petitioner Mr. Kilaru Khader Baba is that the very institution of the suit by the respondents herein is contrary to Rule 32 of the Civil Rules of Practice. According to the learned Counsel for the petitioner, when once a suit is instituted by the agent on behalf of the principal as contemplated under Rule 32, an affidavit is to be filed and the Court below, only after permitting the said agent, can proceed further with the suit, and in this connection the learned Counsel has drawn my attention to Rule 32 of Civil Rules of Practice.

4. On the contrary, the learned Counsel for the respondents Mr. Rajamalla Reddy contended that the Court below proceeded in deciding the suit only after granting permission and as such the contention putforth by the learned Counsel for the petitioner is not correct. The learned Counsel for the respondents has drawn my attention to page 13 of the judgment of the Court below.

5. Heard both the learned Counsel.

6. Before deciding the revision, it is necessary to extract Rule 32 as it is:

"Rule 32 - Parly appearing by Agent :--

(1) When a party appears by any agent, other than an advocate, the agent shall, before making of or doing any appearance, application, or act, in or to the Court, file in Court the power of attorney, or written authority, thereunto authorizing him or a properly authenticated copy thereof together with an affidavit that the said authority still subsisting, or, in the case of an agent carrying on a trade or business on behalf of a party, without a written authority, an affidavit stating the residence of his principal, the trade or business carried on by the agent on his behalf and the connection of the same with the subject-matter of the suit, and that no other agent is expressly authorized to make or do such appearance, application, or act.

(2) The Judge may thereupon record in writing that the agent is permitted to appear and act on behalf of the party; and unless and until the said permission is granted, no appearance, application, or act, of the agent shall be recognized by the Court".

7. From the above said Rule it is clear that the agent, if he wants to prosecute any lis on behalf of the principal, has to file an affidavit initially and it is only after accepting the affidavit and permitting the said agent the Court can proceed further. Keeping the said Rule in mind, now I proceed to deal with the present revision.

8. The learned Senior Civil Judge has framed as many as 5 issues. However, issues 1 and 2 are relevant for the purpose of deciding this revision, which are as follows:

1. Whether the Foreman-PW-1 is entitled and authorized to file the present suit against D-1 to D-4?

2. Whether the suit was filed violating Rule 32 of Civil Rules of Practice?

9. At paragraphs 8 to 10 of the judgment, the learned Judge decided issue No. 2 before deciding the other issues. From this it is very clear that the learned Senior Civil Judge before deciding the suit on merits has decided the maintainability of the suit. As per the judgment, the first point that was decided was issue No. 2 i.e., whether the suit was filed violating Rule 32 of Civil Rules of Practice, and the discussion on this aspect is as follows:

"In the list of documents Sl.No. 9 is dated 19.4.1999 which is an affidavit of the Foreman as required under Section 138 read with Rule 32 of Civil Rules of Practice in which she has mentioned, that, she is the Foreman and Managing Partner of the plaintiffs Chit Fund Company and she is authorized to file this suit and E.Ps., to recover the amount due that the suit was filed against the defendants for recovery of the amounts due from them.

The office has put up a note to that, the suit is in order after mentioning the circumstances, under which the suit is filed. This Court has permitted the plaintiff to file the suit, therefore, I hold that, Rule 32 of Civil Rules of Practice has been complied with, and, thereby answering the point No. 2 in favour of the plaintiff and against the defendants".

10. Similarly, the learned Senior Civil Judge decided issue No. 1 i.e., whether the Foreman-PW-1 is entitled and authorized to file and present the suit against D-1. The discussion with regard to the said issue is as follows;

"Ex.A-10 is marked during the course of evidence by the Foreman-PW-1 in which PW-1 was authorized to file the suits and execution proceedings and to receive the amounts through Court in connection with defaulter subscribers at Sathupalli Branch Office by authorizing her to sign in all the plaint, affidavits, petitions and in all other relevant documents on behalf of the Sathupalli Branch in the capacity of Foreman and in the capacity of Branch Manager of their office situated at Sathupalli. The second witness is one. A Lakshminarayan who has worked as Foreman of Sathupalli Branch from 10.4.1995 to 8.4.1996, the suit transaction took place on 21.1.1996 by which date PW-2, he was working as a Foreman. He further deposed to the suit transaction and as well as the plaint allegations by identifying the signature of D-1 and as well as his signature in the Chit agreement and he further deposed that the registration of the chit at Sub-Registrar Office, Sathupalli and an endorsement made thereon. PW-2 also deposed that with regard to appointment of PW-1 as Foreman of Sathupalli Branch from 9.4.1996 which was duly informed to the Chit Registrar - Sathupalli. This witness-PW-2 identified and recognized Ex.A-10 which is an authorization letter given by him to PW-1 to file the suit. PW-1 also in her evidence deposed with regard to the Ex.A-10. In the cross-examination she replied that Ex.A-10 does not contain any date. PW-2 also replied that Ex.A-10 does not contain the date. The defendant has also examined as DW-1 and he has deposed in his evidence that PW-1 has no right to file the suit against him. In the cross-examination he replied that D-3 is his brother, D-4 is his sister, D-2 is the husband of D-4. When this Court considers Ex.A-10 and the evidence of PW-1, PW-2 and DW-1 only it is clearly established that PW-1 is having authorization even by PW-2 to file the suit on behalf of the chit fund company against the defendants. By also considering the Ex.A-12 which was marked during the course of evidence of PW-1 which is the certified copy of the letter issued by the Chit Registrar, Kothagudem in which the letter was addressed by the Managing Partner -Foreman of Khammam Head Office Ushakiran Chit Funds dated 15.4.1996 by informing that by their resolution dated 9.4.1996 of Khammam the Resolution marked as Ex.A-13 which is certified copy issued by Sub-Registrar, in those exhibits as per the said resolution Ex.A-13 PW-1 has been appointed as a Foreman to do Chit fund business at Sathupalli Branch by duly obtaining specimen signatures of PW-1 duly attested by the Managing Partner.

PWs. 1 and 2 also in their evidence deposed with regard to the Exs.A-12 and A-13 respectively, except cross-examining that, Exs.A-11 and A-13 are not filed along with the plaint which he replied that, nothing is suggested with regard to Exs.A-12 and A-13 respectively.

In the cross-examination PW-2 replied, the, Ex.A-13 was issued by the Chit Registrar, it does not contain the signature of the partners, but, the original resolution passed by them is containing the signatures of all the partners.

PW-2 replied as the other partners are given power of attorney and as such she signed in Ex.A-13 but the same thing is not mentioned in it. In Ex.A-13 a mention is made that PW-2 managing partner of the firm authorised to make available copy of their resolution to whomsoever as and when required by them. Thus, this Court considers that the entire oral and documentary evidence of PW-1, PW-2 and as well as the Exhibits which have been discussed by me in the earlier part of my judgment, point No. 1 is answered in favour of the plaintiff and against the defendants".

11. From the above said judgment, it is clear that the learned Judge, after making himself clear about the maintainability of the suit, has proceeded further. Of course, there is an irregularity in disposing of the suit i.e., before numbering the suit the learned Judge ought to have decided this issue and being satisfied that it is in accordance with Rule 32 of Civil Rules of Practice, he ought to have numbered the suit. In the instant case, of course, he did not follow the said procedure as contemplated under Rule 32 and only after numbering the suit has decided the issue. This irregularity in proceeding with the suit may not go to the roots of the case and as such I am not inclined to accept the contention of the learned Counsel for the petitioner that the very judgment and decree are contrary to Rule 32 of Civil Rules of Practice.

12. The revision is accordingly dismissed. No costs.