Gulab Manot & Ors. v. Anshuman Bagchi & Anr.

Ashoke Kumar Dasadhikari, J.:— Order impugned dated 13th February 2015 passed by the learned Civil Judge (Junior Division) 4 Court, Alipore, South 24 Pargans allowing the application of alleged agent of the defendants to contest the Ejectment Suit no. 27 of 2014, is under challenge in this revisional application.

2. Ms. Manju Agarwal, learned counsel appearing for the petitioners submits that steps were taken in the Ejectment Suit for service of summons. The summons were duly sent to the defendants at their address. The envelopes containing summons were returned with postal remark ‘Not Claimed’ which is good service. However, after service the defendants/opposite parties did not contest the suit. The suit was fixed on ex parte board. On 13 February 2015 the suit was fixed for ex parte hearing. On that day one Avik Sanyal claiming to be the power of attorney holder of the defendants moved an application with a prayer to allow him to contest the suit for and on behalf of defendants. After coming to know about the suit from local rumour he has taken advice of a lawyer and thereafter engaged a clerk of the learned advocate to enuire whether there is any such suit pending in the court below. Ultimately, it has come to his knowledge that the suit was kept pending and the suit was fixed for ex parte hearing. That is how the so called power of attorney holder came to know about the suit and just before the date fixed for ex parte hearing, moved an application under section 151 CPC to allow the applicant/power of attorney holder to contest the suit for and on behalf of the defendants/tenants.

3. Learned counsel submits that the power of attorney is a forged document. The defendants were not present on the date when the power of attorney was notarized. She submits that this court on 19 February 2016 asked the learned advocate Mr. Kamalendu Ghosh appearing with Mr. Raja Ghosh and Mr. T. Bose to produce sufficient document and/or evidence before this court showing that both the defendants in the eviction suit viz. Anshuman Bagchi and Archisman Bagchi were present in Calcutta when the so called power of attorney was notarized. She submits till date there is no such document available before this court to establish that both of them were present on the date of notarization. She submits in such type of cases when defendants stay in foreign country and want to authorize some persons, then definitely that should be affirmed through Indian embassy and the rules of Power of Attorney Act do apply. But unfortunately here is forged document which were produced. The power of attorney notarized by one Abdul Hamid Molla, Notary Public Government of India, claiming to be the advocate of High Court, Calcutta and his address is “near High Court Gate No. E”. She submits that, notarization was made at a time when both the defendants were not present, and therefore, the power of attorney is invalid and not to be considered. The learned advocate for the defendants failed to produce sufficient materials before this court to show that both the defendants were present at the time of notarization of power of attorney.

4. She submits that the order impugned passed on a wrong premise. The learned court below failed to appreciate that both the defendants are staying abroad. They have let out the premises to Avik Sanyal who is only a sub-tenant in the premises and the eviction suit was filed on the ground of sub-tenancy/sub-letting. Learned counsel submits that the order impugned is not sustainable in law. The order impugned should be set aside.

5. Mr. Kamalendu Ghose, learned counsel appearing for the opposite party submits that he has not been able to procure the document showing two defendants' presence on the date of notarization. He submits that the defendants are staying in United States of America. Applicant, Avik Sanyal is their brother and power of attorney was granted in favour of Avik Sanyal and he came to know form local rumour and thereafter he enquired through one clerk of an advocate and thereafter he moved this application before the learned court below with a prayer to allow him to contest the eviction suit. He submits in fact the previous order of ex parte hearing was recalled by the order impugned dated 13 February 2015. According to him, defendants should be allowed to contest the suit through Avik Sanyal, the power of attorney holder of both the defendants.

6. Considered the submissions made by the learned advocate for the respective parties.

7. It appears from a plain reading of the impugned order that the learned court below relied upon the so called power of attorney executed by both the defendants in favour of one Avik Sanyal. However, a question of validity and/or legality of the impugned power of attorney was raised. A specific allegation was made that both power of attorney is invalid document and the date when alleged power of attorney was notarized, on 6 February 2015, none of the defendants were present in Calcutta. Therefore, there is no question of giving such power of attorney holder to Avik Sanyal.

8. The matter was heard on different occasions. Learned advocates who were representing the opposite parties in this revisional application were granted 15 days time on 19 February 2016, to show that the two defendants namely Anshuman Bagchi and Archisman Bagchi were present in Calcutta when so called power of attorney was notarized. This order was passed on 19 February 2016 but till today there is no document before this court showing that both of them were present at the time of notarization. Further, the notarization was made by one Abdul Hamid Molla who has no definite office. His address is near High Court Gate no. ‘E’. There is every doubt as regards the alleged power of attorney if at all executed by the defendants. The notarization is also doubtful. Moreover, the plea taken by the applicant, being the so called power of attorney holder, that he has come to know about the suit by rumour prevailing and circulating in and around the neighbouring area that an ejectment suit had been filed against the defendants is of no substance. It was allegedly claimed that an opinion was sought for from one learned advocate for making enquiry. Thereafter, through the learned advocate's clerk an application for getting information was filed and the number of the suit and position as well as date of filing of the suit was ascertained. But neither the information slip nor anything as regard about taking opinion from the learned advocate is on record.

9. The learned court below did not consider the aspect of the matter. It appears to this court that the documents claiming to be the notarized power of attorney are all invalid documents since the defendants/tenants who are residing in United States of America, if authorised somebody then the notarization of power of attorney is to be made through from the embassy. Unfortunately, that was not done. The so-called power of attorney, if at all executed, are invalid documents. Therefore, the impugned order is not sustainable in law. Learned court below failed to apply its mind properly. There is material irregularity and/or illegality in the order passed by the learned court below.

10. The order impugned is set aside. The learned court below is directed to proceed with the suit strictly in accordance with law.

11. Revision petition is disposed of.