Jatindra Nath Ghosh vs Niranjan Chakraborty

Bhagabati Prasad Banerjee, J.

1 This is an application for stay of the operation of the order dated September 7, 1992, passed by Padma Khastgir J. filed by the Appellant. By the said order dated September 7, 1992, Padma Khastgir J. did not pass any order on the application for vacating an order passed by Ajit Kumar Sengupta J. on July 15, 1992. The said order passed by Ajit Kumar Sengupta J. was affirmed on July 19, 1992. The said application for vacating the order was not entertained solely on the ground that the said application had been taken out in the name of the constituent Attorney and that the Applicant-Petitioner had no authority to take out the said application for and on behalf of the Appellant Jatindra Nath Ghosh and others. Before us also an application for stay of the operation of the order of the learned trial judge had been filed by Sri Shasanka Shekhar Pan, the constituent Attorney of the Appellant Petitioners. Shasanka Shekhar Pan was not a party and that such petition was filed in the name of the said constituent Attorney allegedly on behalf of the Appellant Jatindra Nath Ghosh and 5 others. Before us a preliminary objection had been taken by Mr. Jayanta Mitra, learned Counsel appearing on behalf of the Respondent-opposite party that Shasanka Shekhar Pan, the constituent Attorney of the Appellant, had no locus standi to file the appeal and the application and he was not entitled to execute the Vakalatnama on behalf of the Appellant and, as such, the application for appeal is dismissed in limine. Before dealing with the preliminary objection it is necessary to set out some of the facts which are relevant for the purpose. A Title Suit No. 40 of 1987 was filed by Niranjan Chakraborty, Plaintiff-opposite party, against the Appellant Jatindra Nath Ghosh in the Court of the Second Munsif, Baruipur, "for a decree of the Plaintiff''s tenancy right under the predecessor in interest of the pro forma Defendants in terms of the lease agreement of the suit land and thereafter under the pro forma Defendant" as also "for a permanent injunction restraining the principal Defendants from forcibly ousting the Plaintiff''s possession from the suit land." The suit land is a piece and parcel of 26 decimals of Danga land of Mouza Barhansfartabad, P.S. Sonarpur, District 24 Parganas (South). It was further stated in the said suit that the Plaintiff-opposite party took settlement of the said land for the purpose of cultivation.

On or about March 20, 1967, immediately after filing the suit this Plaintiff-opposite party made an application under Order 39, Rules 1 and 2 read with Section 151 of the CPC praying, inter alia, for an interim order of injunction against the Appellant pending of the said suit and that in spite of the best efforts made by the Plaintiff-opposite party the said injunction could not be heard and disposed of by the learned Munsif which was still pending before the Court below. It was alleged that the Plaintiff-opposite party was an old man of 75 years and was residing with his wife aged about 65 years at his premises and taking advantage of the old age and infirmity of the Plaintiff-opposite party and his wife, some local people, viz. Sri Shasanka Shekhar Pan, who is stated to be the constituent Attorney of the Appellant and his associates, forcibly encroached upon the said suit land with the help of their muscle-men destroyed some of the properties belonging to the Plaintiff-opposite party. The said incident took place on June 9, 1991. It was further stated that Sri Shasanka Shekhar Pan allegedly on the basis of general Power of Attorney given by the Appellant was only to conduct the said litigation in the Baruipur Court. The said incident was reported to the local Police Station on June 9, 1991, and ultimately, on an application u/s 144 of the Code of Criminal Procedure, the learned Executive Magistrate, Second Court, Alipore, passed an order in M.P. Case No. 1393 of 1991 on June 29,. 1991, directing the Officer-in-charge, Sonarpur P.S. to enquire and report by August 3, 1991, and to see that no breach of peace takes place or any wrongful action is done by the opposite party therein in the said suit land. The Plaintiff-opposite party also filed another application u/s 107 of the Code of Criminal Procedure against the said Sri Shasanka Shekhar Pan in the criminal Court in the context of the fact that the injunction .matter could not be heard and disposed of in spite of and during pendency of so many criminal cases. The Plaintiff opposite party filed an application for transfer of the said suit u/s 24 of the CPC read with cl. 13 of the Letters Patent from the Court of the learned Munsif, Second Court, Baruipur, 24-Parganas (South) to this Court, and on the said application filed by the Plaintiff opposite party this Court was pleased to issue a rule and passed interim order of injunction restraining the Appellants, their agents and servants from dealing with and/or disturbing and/or dispossessing the Plaintiff-opposite party from the said suit land and also an order of injunction restraining the Respondents, their agents and servants from making any construction therein. The said rule with interim order was issued on July 15, 1992 and and the returnable date, namely July 17, 1992, the rule to cause why the suit should be transferred under cl. 13 of the Letters Patent and the rule was made absolute by Ajit Kumar Sengupta J. On July 15, 1992, none appeared to oppose the said application and the said interim order of injunction passed on July 15, 1992, was directed to continue till the disposal of the suit. By the order dated July 17, 1991 A. K. Sengupta J. passed in Matter No. 370 of 1992 granted liberty to the Appellant to make an application for vacating the interim order. Pursuant to the said leave granted by A. K. Sengupta J. on July 17, 1992, an application was made by the said Shasanka Shekhar Pan, the constituent Attorney of the Appellant. The said application was not entertained by Padma Khastgir J. on the ground that the constituent Attorney had no locus standi to file such application.

Being aggrieved by and dissatisfied with the said order passed by Padma Khastgir J. dated September 7, 1992, an appeal was filed by the said constituent Attorney and the application was also filed by the said constituent Attorney.

The said appeal is pending before this Coun and that interim order of injunction that was passed only to protect the right, title and interest of the parties in fact.

In law a constituent Attorney can sign a petition or an affidavit for and on behalf of any of the parties. Constituent Attorney can act only as an agent. An agent under the Power of Attorney Act, 1882, can only institute and conduct proceeding before a Court of law for and on behalf of the donor of the Power of Attorney. Power of Attorney is an authority where by one is set in term, stead or place of other to act for hire, a donee of a Power of Attorney is entitled to act and sign on behalf of the donor. An agent can only act in the name of the principal, but agent cannot act in his own name as if he is the principal. Being an agent Shasanka Shekhar Pan cannot have any right to file an application in his own name keeping the donor in the dark. The petition can be signed by a constituent Attorney and through the pen of constituent Attorney and the constituent Attorney through his pen can sign the name of the principal. But the constituent Attorney cannot have any right under the law and/or under the rules of procedure to maintain any appeal or application in his own name. Before us an application for stay was filed in the name of the constituent Attorney. Constituent Attorney can act only in the name of the person for whose behalf such authority was held. Through Power of Attorney one can act for person who was granted such Power of Attorney. But on the strength of the Power of Attorney the holder of the Power of Attorney cannot act in his own name. We are of the view that the application for stay was made not by the Appellant but by the constituent Attorney, Shasanka Shekhar Pan in his own name and this is not permissible under the rules of procedures. Accordingly, this application is not maintainable in law and is dismissed. There will be no order as to costs.

All parties shall act on the operative part of the judgment on the usual undertaking.

Amal Kanti Bhattacharjee, J.: I agree.