- (1.) HEARD both sides.The revision petitioner/plaintiff has filed I.A.No.7 of 2008 in O.S.No.209 of 2005 on the file of the Principal District Judge, Erode inter alia praying permission of the Court to grant leave to file and mark the following documents:i) Power of attorney dated 14.9.2005 executed by the plaintiff company in favour of its Assistant Marketing Manager Muthukrishnan.ii) Stockist Agreement dated 8.10.1990 entered into by the 2nd defendant with the plaintiff company and to allow the revision.
(2.) THE first respondent has filed counter (adopted by the second respondent) among other things mentioning that the trial has commenced and the evidence of P.W.I is also over and that P.W.I has admitted in his evidence that the Board of Directors and the petitioner company has not passed any resolution authorizing him to file the suit and he has also admitted that he did not file any petition seeking the permission to represent the plaintiff in the suit and therefore, the application filed under Order 7 Rule 14(3) of C.P.C. is not maintainable and that the alleged power of attorney ought to have been produced at the time of filing of the suit and permission to represent the plaintiff as a power holder should have been filed under Rule 16 of the Civil Rules of Practice and this is the condition precedent and defect cannot be rectified by producing the said power deed at the belated stage of the trial and further that the stockist agreement is one sided and unenforceable in law and this document at a stage of trial cannot be received in trial and that the petitioner cannot be given a chance to fill up the loopholes and hence prays for dismissal of the application. According to the learned counsel for the revision petitioner/plaintiff the trial judge has not taken into consideration of the fact that the petitioner is only seeking to file additional documents and sought leave of the Court to file the same which cannot be refused by the Court at any stage of the trial in the eye of law and that the trial judge has harped on Rule 16 of the Civil Rules of Practice unnecessarily and that the trial judge has failed to see that the person representing the petitioner company is the specific agent to represent the company only for the purpose of initiation of recovery proceedings against the defendant and not a general power agent and the petitioner is only seeking to accept the admitted documents by the defendants and even the defendants have been approaching the Assistant Manager Marketing in connection with the transaction and this fact has not been noticed by the trial judge and in fact there is no dispute regarding the dealership agreement which is the admitted case of the defendants and also the defendants are the stockists and the plaintiff who were appointed as stockist under the agreement dated 8.10.1990 and in any event, prays for allowing the revision in the interest of justice. Mr. M. Duraiswamy, learned counsel for the respondents submits that the trial judge has come to the right conclusion that there is no valid reason to condone the delay under Order 7 Rule 14(3) of the Civil Procedure Code and that P.W.I have not stated in the evidence that power of document was executed on 14.9.2005 and that the evidence of P.W.I has been completed in that case and resultantly dismissed the application with costs.
(3.) IN support of his contention, the learned counsel relied on the decision of K. Subramanian v. S. Balashanmugam 2005 (2) CTC 112 wherein, this Court has held that no explanation has been given for marking the documents when he was already, examined and therefore dismissed the revision petition confirming the order of trial Court in dismissing the petition for recalling the witnesses for marking documents. Further, the learned counsel for the respondents drew the attention of this Court in Rule 16 Civil Rules of Practice which enjoins as follows:"1. When a party appears by an agent other than a pleader or advocate, the agent shall before marking or doing any appearance application or act, in or to the Court, file in Court the power of attorney, or written authority, thereunto authorizing him, or a properly authenticated copy therefor, in the case of an agent carrying on a trade or business on behalf or a party, without a written authority, an affidavit stating the residence of his principal, the trade or business carried on by the agent on his behalf and the connection of the same with the subject matter of the suit and that no other agent is expressly authorized to make or do such appearance, application or act. 2. The Judge may thereupon record in writing that the agent, is permitted to appear and act on behalf of the party, and unless, and until the said permission is granted of appearance, application or act, of the agent shall be recognized by the Court".;