Vijaynarayan Marsingh Dwivedi v. Smt. Nirmaladevi Shitlaprasad Dubey And ORS

HARSHADA H. SAWANT (P.A.) IN IN THE THE HIGH HIGH COURT COURT OF OF JUDICATURE JUDICATURE AT AT BOMBAY BOMBAY CIVIL APPELLATE JURISDICTION CIVIL APPELLATE JURISDICTION WRIT PETITION NO.1183 OF 2024 Vijaynarayan Narsingh Dwivedi Petitioner (Orig. Plaintiff)

Versus

Nirmaladevi Shitlaprasad Dubey ..

Respondents (Orig. Defendants) ....................

 Mr. Ghanshyam Mishra, Advocate for Petitioner. ..

...................

CORAM

: MILIND N. JADHAV, J.

DATE : JANUARY 31, 2024 P.C.

:

1.

Heard Mr. Mishra, learned Advocate for Petitioner. 2.

By the present Writ Petition, Petitioner who is Plaintiff before the Trial Court seeks to mark the Power of Attorney (for short 'POA') as exhibit in evidence.

3.

Briefly stated it is Plaintiff's case that POA nominating his son as constituted attorney was placed before the Trial Court in the trial and the same was exhibited in evidence as Exhibit-42 in the suit proceeding. It is Plaintiff's case that save and except at one specific and particular place on page No.4 of the POA, at all other relevant places the name of the constituted POA has been correctly stated and mentioned by the Plaintiff. However, on page No.4 in line No.8 instead of mentioning the name of the attorney, Plaintiff by mistake has mentioned his own name.

4.

Mr. Mishra, learned Advocate appears for Plaintiff / Petitioner before me and would submit that the name of the constituted POA at page No.4 was mentioned mistakenly due to a typographical mistake / error and it was never realised. He would submit that on the basis of said POA exhibited below Exhibit-42 the trial commenced, Plaintiff's affidavit-in-lieu of examination-in-chief was accepted by the Trial Court below Exhibit-40 through the same POA. Thereafter Defendant No.3 cross-examined him on 08.06.2023 and infact put a direct question to him with respect to the aforesaid mistake in cross-examination.

5.

Mr. Mishra would fairly submit to the Court that it is only at this point of time that the Plaintiff realized that there was a mistake in mentioning the name of the POA on page No.4. Mr. Mishra would contend that substantial cross-examination has also taken place on the said POA during the course of trial. He would further submit that when the Application was filed by Plaintiff for producing a subsequent POA executed by Plaintiff to rectify the said mistake which occured on page No.4, the said Application has been rejected by the impugned order.

6.

He would however qualify and submit that production of the fresh Special POA has in fact been allowed by the learned Trial Court but recall of Plaintiff's witness to produce the same before the Court

stands rejected resultantly leading to the fresh Special POA now submitted not been exhibited in evidence which is why the Plaintiff is aggrieved, since there should be no ambiguity later on. 7.

I have perused the impugned order. Perused the pleadings of the case and heard Mr. Mishra.

8.

Prima facie, I am of the opinion that the error, rather typographical error has occurred at one place in the POA but record reveals that substantial cross-examination has taken place on the basis of the POA as also the pleadings which are filed on its basis. Defendants never took any objection while completing the entire trial. Therefore objection of the Defendant No.3 at this stage may not appear to be relevant, though it is an admitted fact that the subsequent POA was attempted to be placed on record by the Plaintiff only to rectify the typographical mistake and nothing more, it appears that the case of Plaintiff has not been considered on the ground of delay. The delay according to the Trial Court is seven years after the filing of the suit. But reading of the impugned order itself reveals that it came to Plaintiff's knowledge only at the time of cross-examination as far late as on 08.06.2023.

9.

That apart, the name mistakenly appearing on page No.4 of the POA is not the only place where the name of the constituted attorney is stated in the POA exhibited under Exhibit-42. I have

perused the POA which is at page No.52. I find that name of the constituted POA i.e. 'Satish Vijaynarayan Dwivedi' is mentioned in the substantive conclusive recital of the said POA on internal page No.3 (last line). Thereafter the name of the constituted POA once again is correctly mentioned in the execution clause on internal page No.8 and his signature and photograph appears therein. It is clearly seen that the name appearing on internal page No.4 is a clear typographical mistake as no Executor can execute a POA onto himself. 10.

In view of above, an arguable case has been made out by Mr. Mishra for issuance of notice. Issue notice to Respondents. Petitioner is directed to serve the Respondents. Humdast permitted. In addition to Court's notice, Petitioner is permitted to serve the Respondents a copy of this order and Petition and inform them about the next date of hearing by any permissible mode of service and file appropriate affidavit of service with tangible proof thereof. Respondents are directed to file Affidavit-in-Reply to the Petition on or before the next date. Respondents are directed to cognizance of today's order. 11.

It is clarified that this Writ Petition shall be disposed at the stage of admission after giving substantive directions to the Trial Court.

12.

Stand over to 07th February, 2024.

H. H. SAWANT [ MILIND N. JADHAV, J. ] HARSHADA HANUMANT SAWANT HARSHADA HANUMANT SAWANT Date: 2024.02.01 14:18:22 +0530