SHIB SADHAN SADHU,J. - (1.) The petitioner by filing this application under Article 227 of the Constitution of India seeks to set aside the order being order No.31 dated 14.12.2012 passed by the Learned Civil Judge (Senior Division), Sealdah in Title Suit No.155 of 2009 rejecting the petition dated 07.03.2011 filed by the defendant No.2/petitioner herein praying for passing necessary order not to pass the decree on the basis of the impugned compromise petition giving no importance to the evidence led by the constituted Attorney of the defendants and to allow the defendant No.2 to contest the suit on merit through his own appointed Advocate.
(2.) The plaintiff/O.P. No.1 herein instituted the aforesaid suit for decree of declaration, injunction, specific performance and enforcement of contract, mesne profit, damages and compensation and for further reliefs against the petitioner and another. The petitioner/defendant No.2 executed a notarial Power-of-Attorney in favour of his maternal brothers Soumen Kumar Ghosh and Sujit Kumar Ghosh to look after that suit on his behalf as he has been residing in England. On 06.03.2011 the petitioner returned from England and on 07.03.2011 came to know that the aforesaid suit was going to be amicably settled between the parties to the suit and the Attornies of the petitioners keeping him in dark and without his knowledge and consent. They also led evidence and the Court fixed the date on 08.03.2011 for passing the order. As such the present petitioner filed an application under Section 151 of the Code of Civil Procedure praying for not considering the evidence led by the Attornies on his behalf and for allowing him to contest the suit on merit on personal capacities. That application was heard and was rejected by passing the impugned order dated 14.12.2012. Hence this Revisional Application.
(3.) Mr. Jiban Ratan Chatterjee, Learned Senior Counsel appearing on behalf of the petitioner argued that the Attorneys of the petitioner filed the compromise petitioner in collusion and connivance with the opposite parties for their illegal gain without taking any instruction from the petitioner and thereby abused and misused the authority granted to them by the petitioner under power-of-Attorney. He further contended that the alleged compromise was made without the knowledge and consent of the petitioner and keeping him in complete dark and the terms of the compromise are absolutely prejudicial to the interest of the petitioner in the suit property and therefore he cannot agree with such compromise. He contended yet further that the Attorney cannot be witness on behalf of the principal nor can he depose in place and instead of the principal and therefore, the evidence led by him has no legal footing and the same cannot be considered as valid and legal evidence on behalf of the petitioner. But the Learned Trial Judge did not consider all these materials and passed the impugned order mechanically in a casual manner without recording any reasons. Therefore, according to him, the impugned order is bad in law and is liable to be set aside. He relied on the decision of the Hon'ble Supreme Court reported in AIR 1993 Supreme Court 1139 (Banwari Lal v. Smt Chando Devi) (through LR) and Anr.) in support of his contention.;