Abdulla Khan by his agent and Muktyar Abdul Wahab Khan vs N.K. Das

Madhava Rao

This is a revision petition against the judgment of the learned Addl. District Judge, Visakhapatnam, dated 30-1-1975 dismissing the appeal and confirming the judgment and decree of the Principal District Munsif, Visakhapatnam, in Original Suit No. 250 of 1971 dismissing the suit filed for recovery of the amount on the basis of promissory note. The learned counsel for the petitioner submitted that the lower courts erred in holding that the suit should be treated as barred by time.

To appreciate this contention, it is necessary to note a few relevant facts; The suit is filed by the agent and Muktyar Abdul Wahab Khan on the basis of a promissory note dated 1-6-1968 executed by the defendant in favour of Abdulla Khan the promisee for Rs. 600/- with interest at 25% per annum. The defendant denied the borrowing and execution of the promissory note. He also alleged that the suit is not maintainable since the power of attorney alleged to have been given in favour of Abdul Wahab Khan is not proper and valid. The trial court found that the promissory note is true and was supported by consideration. It further held that though the promisee-plaintiff executed a registered power of attorney on 26-6 1964 in favour of Abdul Wahab Khan P.W. 1 that did not authorise the power of attorney to file the present suit. On that ground the suit was dismissed. The plaintiff went in appeal, A.S. No 147 of 1972. By that time the plaintiff-promisee executed another power of Attorney on 19-8-1972 in favour of Wahab Khan and filed I.A. No. 241 of 1973 to receive the said document as additional evidence in the appeal. That petition was allowed and the said document was marked as Ex. A-5. Consequently the suit was remanded for fresh (sic) according to law keeping in view the provisions of Order 3 rules 1 to 4 of the Code of Civil Procedure. The finding that the promissory note is true, valid, binding and supported by consideration has become final and was not reopened by the trial court. After remand the learned District Munsif found that Ex. A-5 was executed on 19-8-1972. The promissory note, Ex. A-2, was executed on 1-6-68. Ex. A-1 dated 26-6-1964 is an extract of the registered power of attorney executed by the plaintiff promisee in favour of Wahab Khan. The learned District Munsif referred to Abdul Latif Gulam Nabi Patil Vs. The Jawhar State, wherein it was held that a suit filed by a person, who was not authorised agent of the Indian State, must be dismissed and subsequent authority obtained u/s 85 CPC. after the appeal is filed against the judgment of dismissal would not cure the defect. The learned District Munsif also ret erred to P.M. Desappa Nayanim Varu and Others Vs. Ramabhaktula Ramiah and Others, wherein it was held that when a person was authorised by a special power of attorney to conduct a suit in the court of the District Munsif at Tirupathi for the suit schedule properties and when the District Munsif returned the plaint on the ground that it was beyond the pecuniary jurisdiction of his court, the agent bad no power to institute and conduct the suit in the Subordinate Judge''s Court and accordingly it was held that the Sub-Court was right in holding that the presentation of the plaint by the person having the special power of attorney was not valid. In the instant case, on the grounds that the earlier power of attorney of the year 1964 (Ex. A-1) did not authorise Abdul Wahab Khan to file the suit and the later power of attorney, Ex. A-5, was executed long after the institution of the suit, the trial Court held that Ex. A-5 would not make the presentation of the plaint valid since by that date, 19-8-1972, the suit became barred by limitation. Accordingly the suit was dismissed. The appellate Court also confirmed the finding of the trial Court in dismissing the suit.

In this revision, as noted earlier, the submission was that when once the act of the agent has been ratified by the principal, the defect in presentation of the suit is cured and therefore it could not be dismissed as having been barred by limitation. The learned counsel for the respondent, Smt. D.S.R. Krishna, appearing for Mr. Subrahmanyam, submitted that Ex. A-5 power of Adbul Wahab Khan (P.W. 1) who acted as the power of attorney. Ex. A-5 was read out and it was found that there is no clause ratifying the action of P.W. 1 in instituting the suit on the basis of Ex. A-2. Therefore, the contention that by ratification the defect is cured does not arise. On this ground itself the revision petition is liable to be dismissed. That apart, it is relevant to note that even the ratification, if so done, cannot be valid if it affects the rights accrued to a third party. Section 200 of the Contract Act reads as under: 20. An act done by one person on behalf of another, without such other person''s authority, which, if done with authority, would have the affect of subjecting a third person to damages or of terminating any right or interest of a third person, cannot, by ratification be made to have such effect.

In the instant case the promissory note is dated 1-4-1968. The earlier power of attorney, Ex. A-1, did not authorise P.W. 1 to file the suit. Therefore, the suit filed by P.W. 1 was invalid. The power was given to P.W. 1 to file the suit under Ex. A-5 dated 19-8-1972. By that date the limitation to file the suit on the basis of Ex. A-2 expired and therefore, no suit as such could be filed by P.W. 1. What was contended is that if the action of P.W. 1 a instituting the suit is ratified by Ex. A-5 the action becomes valid. The suit as such filed within the period of limitation would enure to the benefit of the plaintiff. But in the instant case even the alleged ratification of the action of P.W. 1 in instituting the suit was no within the period of limitation but was long after the limitation expired. The promissory note is dated 1-6-1968 and the period of limitation expired by 1-6-1971. The suit was originally filed on 16-6-1971, the re-opening day after the summer vacation and hence within limitation. Thus the period of limitation expired on 16-6-71 and the latter power of attorney is dated 19-8-1972 long after the expiry. It cannot, therefore, be held that Ex. A-5 validated the institution of the suit by P.W. 1. The illustration given u/s 20 makes the point further clear. It is as under:--

(b) ''A'' holds a lease from ''B'' terminable on three month''s notice. ''C'' an unauthorised person, gives notice of termination to ''A'' The notice cannot be ratified by ''B'' so as to be binding on ''A''.

Therefore, it is not open to ratify the action of P.W. 1 after expiry of the period of limitation since it affects the rights accrued to the defendant. Even if such a ratification is made this could have no effect on the rights already accrued to the defendant. Looking the matter from any angle, the suit is liable to be dismissed. Accordingly the revision petition is dismissed, but the parties will bear their own costs.