Aggrieved by the dismissal of the restoration application filed under Order 41 Rule 19, this revision petition has been filed.
2.The brief facts leading to this revision petition is as below:- S.Glayton Raj and 7 others through their power of attorney A.John Bosco filed a suit for permanent injunction against one Vargheese in O.S.No.602/1997 on the file of the District Munsif Court, Kuzhithurai, based on the title declared in the exparte decree passed in O.S.No.394/1997 dated 08.09.1997 by the same Court.
3.The defendant filed his written statement on 19.01.1998 with counter claim that the decree obtained in O.S.No.394/1997 is a collusive and fraudulent one, therefore the same is null and void. On the same day, the plaintiffs made an endorsement to withdraw the suit with liberty to file a fresh suit.
4.In the said circumstances, after examination of witnesses, the Court has dismissed the suit and allowed the counter claim on 16.12.1998. Aggrieved by the decree passed, the plaintiffs 1 to 8 through their power agent preferred first appeal in A.S.No.13/1999 on the file of Subordinate Court, Kuzhithurai. Pending appeal, I.A.No.37/1999 was filed to stay the operation of the decree passed in O.S.No.602/1997. When the Appeal Suit was taken up for final hearing, A.John Bosco filed a petition for adjournment by a month citing his ill-health. The appellate Court has accordingly adjourned the case from 09.04.2003 to 16.04.2003. On that day, there was no representation for the appellant. Hence, appeal stood dismissed for default. The note of the Judge reads as follows:-
''Appellants called absent. No representation. Advocate boycotting is not an excuse. Appeal dismissed for default on cost of Rs.2000/- to be paid in court before filing any restoration.''
5.Accordingly, the said John Bosco has filed restoration petition I.A.No.457/2003 after paying Rs.2,000/- on 28.04.2003. The Trial Court after considering the counter filed by defendant/respondent Vargheese dismissed the restoration petition.
6.Aggrieved by the dismissal of the restoration petition, the present revision petition is filed on the ground that the Court below failed to consider the medical certificate filed along with the petition for adjournment. The Trial Court failed to give an opportunity to argue the appeal on merits though he paid the cost of Rs.2000/-. It is further contended that in an application filed under Order 41 Rule 19 of CPC for re- admission of appeal dismissed for default, the Court ought not to have entertained to mark Ex.B1.
7.Per contra, the counsel for the respondent submitted that the revision petitioner is no more the power of attorney to plaintiffs. The power was already cancelled on 12.02.1998 vide document marked as Ex.B1. When the revision petitioner has lost the right to sustain the appeal, there is no right vests with him to contest the suit.
8.Further, it is also contended that the revision petition under
Article 227 is also not maintainable since any order of refusal under Order 41 Rule 19 is an appealable order and the same cannot be agitated by way of revision.
9.The pleadings and cause title in the suit indicate that the said S.Glayton Raj and others are wife and children of Siluvai Arukkanchi Fernando. They have executed a power of attorney deed in favour of the said John Bosco. Based on the said power of attorney deed, John Bosco has filed O.S.No.602/1997. It is also borne by record that the said power of attorney deed has been cancelled by some of the principals. When a joint power deed revoked by all principals or by few of the principals, the power deed loses its value. Only a new power deed by the remaining principals will confer power to the agent and no right flow to him once a joint power of attorney deed is cancelled or revoked by one of the principals. Therefore, on 22.02.1999, the date on which the appeal was instituted, the said John Bosco was not the power agent of the other appellants.
10.To add, pending revision, John Bosco died and his legal heirs are brought on record. Since on revocation of power of attorney deed, John Bosco has lost his right to represent the other appellants who have not cared to proceed with the appeal, after the death of John Bosco, whatever little right he had to sustain the appeal as power agent of the other appellants loses. His legal representatives cannot enter into the shoes of the deceased John Bosco since the relationship between the two individuals one as Principal and the other as Agent had come to an end on revocation as well as death of the agent.
11.Further, as pointed out, even on maintainability in view of Order 43 Rule (1)(t) order of refusal under Rule 19 to Order 41 to re-admit appeal is only an appealable order and not revisable.
12.Hence both on facts and law, the revision petition is liable to be dismissed. Accordingly, the Civil Revision Petition is dismissed. No costs. Consequently, connected miscellaneous petition is closed.
To The Sub Court, Kuzhithurai, Kanyakumari District..