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TMI Blog1958 (5) TMI 32X X X X Extracts X X X X X X X X Extracts X X X X ..... pellate court set aside that order and remanded the matter to the learned Judge See Western India Theatres Ltd. v. Associated Bombay Cinemas Ltd. [1958] 60 Bom, LR 1240; [1959] 29 Comp. Cas. 127 . On August 16, 1956, the matter came before the learned Judge when the petitioners applied to withdraw from the petition. Applications were made before him for substitution and those applications were dismissed and ultimately the petition was dismissed. There was an appeal against that decision and on March 1, 1957, the appellate court set aside the order of dismissal, substituted one Mulraj Dwarkadas in place of the original petitioners, and remanded the matter to the Company Judge. The matter came before the learned Company Judge on March 12, 1957. On that day Mulraj withdrew from the petition and the learned Judge made the order substituting in his place the present respondent Ishwarbhai Somabhai Patel. The first contention that has been raised before us by Mr. Desai on behalf of the respondent is that this is not an appealable order. We had occasion to consider this matter at some length in Bachharaj Factories Ltd. v. Hirjee Mills Ltd. [1955] 25 Comp. Cas. 227 . In that cas ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Therefore, there can be no doubt that the order is one which affects the company and it is an order with regard to which the company can be legitimately aggrieved. But it is said that even so there must be a decision and it is urged that in merely giving directions for advertisement, all that has been done is to set in motion a certain procedure established by the court. Now, it must be borne in mind that it was competent to Mr. Justice Shelat at this stage to have dismissed the petition and not to have acted under rule 751. In the Hirjee Mills case [1955] 25 Comp. Cas. 227 the petitioner was entitled to have an order of winding up. In this case the company was entitled to have an order of dismissal. In that case the petitioner was aggrieved because he did not get the order of winding up. In this case the company is aggrieved because the learned Judge did not dismiss the petition but proceeded to give directions under rule 751. Mr. Gupte contends that there is a distinction between an order of dismissal and an order directing advertisements under rule 751. He concedes, as indeed he must, that if the petition had been dismissed, that order undoubtedly would have been subject to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a prima facie view of the petition and the materials before him and he has felt that the materials before him would not justify him summarily dismissing the petition but that more materials, more inquiry and more investigation were necessary before he ultimately made up his mind whether the petition should be allowed or should be dismissed. Therefore, as we are just saying, it would require a very strong case indeed to induce the court of appeal to interfere with the discretion exercised by the Company Judge in ordering advertisements under rule 751. There is one other procedural matter with which we might deal and that is the order of substitution which the learned Judge passed on March 12, 1957, substituting the present respondent in place of Mulraj. Mr. Purshottam wanted to challenge this order and to satisfy us that the order was bad. Now, if the order of substitution was not a proper order, the petition was liable to be dismissed, the company was clearly aggrieved by that order, and it was open to the company to appeal against that order. The company did not choose to appeal against that order and today any appeal against that order is barred by limitation. Therefore, in o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Mr. Purshottam to make a grievance of it now in this appeal. The third procedural matter, which unfortunately we must decide in favour of the appellant and which necessitates the further delay in the disposal of this appeal, is the question as to whether the petition has been properly presented by the petitioner. The petition is signed by the constituted attorney of the petitioner, one Mr. Tijoriwala and the petitioner has executed a power of attorney in favour of Tijoriwala, and the question is whether that power of attorney is a general or a special power of attorney, because under the rules framed by our High Court it is only an agent who is the donee of a power of attorney that can perform any acts or take any proceedings in courts on behalf of his principal. The power of attorney clearly recites that it is executed although it is termed a general power of attorney which is immaterial in order to authorize Tijoriwala to exercise all such powers and to take all such steps in relation to the said shares as Ishwarbhai Patel, the executant of the power of attorney as the registered holder thereof could do; and earlier in the power of attorney it is pointed out that the five shar ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... may, except where otherwise expressly provided by any law for the time being in force, be made or done by the party in person, or by his recognized agent, or by a pleader appearing, applying acting, as the case may be, on his behalf. " Therefore, this rule puts a recognized agent on the same footing as the party himself or his pleader; and "recognized agents" were defined in clause ( a ) as persons holding powers of attorney, authorizing them to make and do such appearances, applications and acts on behalf of such parties. We are not concerned with the definition in clause ( b ). It is interesting to note that under the old Code, the corresponding provision was section 37, and the relevant provision corresponding to Order III, rule 2 ( a ) was, "persons holding general powers of attorney from parties not resident within the local limits of the jurisdiction of the court within which limits the appearance, application or act is made or done, authorizing them to make and do such appearances, applications and acts on behalf of such parties." Therefore, the old Code required a general power of attorney. The new Code only required a power of attorney which authorized the agent to ma ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... les of law and not in the light of any provision contained in Order III, rule 2 itself, because all that Order III, rule 2, requires is that whatever be the power of attorney, that power of attorney must confer the necessary power upon the agent. But when the High Court by its amendment amended rule 2, which did not qualify the power of attorney and did not describe the power of attorney and proceeded to describe the power of attorney as a general power of attorney, we have got to construe that expression and to decide what is a general power of attorney, and that construction cannot be made dependent upon the fact that the power of attorney confers the necessary power upon the agent to make the necessary applications and to do the necessary acts. If that were the correct view, every power of attorney would come within the category of a general power of attorney, because it is impossible to visualize a power of attorney, executed by a person in order to authorize someone to file a suit or to make an application in court, which will not contain that specific power in the power of attorney. Fortunately, this is not a matter of first impression. If one can speak from one's experience ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t point out that in this judgment Mr. Justice Batchelor refers to a decision in Venkatramana Iyer v. Narsinga Rao [1913] ILR 38 Mad. 134 , on which Mr. Desai has very strongly relied, and he says that he is unable to concur with that decision. We think no useful purpose will be served by our considering that judgment when a Bench of this court has, as far back as 1916, considered it and found it difficult to agree with the decision. There is a later judgment reported in Ephrayim v. Turner Morrison Co. [1930] 30 Bom. LR 1178. That is a judgment of Mr. Justice Baker and the power of attorney authorized a person to realize the amount of a Basra decree by filing suits and doing all things necessary in the case. The person holding the power of attorney filed a suit on the foreign decree in the Bombay High Court and signed the plaint on the plaintiff's behalf, and the question arose whether the plaint was properly signed, and Mr. Justice Baker held it was not, and the view taken by the learned Judge was that the power of attorney which authorised the attorney to act only in connection with one particular matter, the realization of the amount which had been obtained against t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... stituted an agent by a general power of attorney. In our opinion, therefore, with respect to the learned Judge, he was in error when he took the view that the power of attorney under which the petition has been signed by Tijoriwala was a general power of attorney. If this was not a general power of attorney, then clearly the petition has not been properly signed. Now, the question is, what is the legal consequence of a petition not being properly signed by the petitioner. In our opinion, this is a mere irregularity which can be cured at any time. That is the view also taken by Mr. Justice Baker in the case to which reference has been made by us, and also in Dahyabhai Girdhardas v. Babaji [1952] 54 Bom. LR 808 . We are told that the petitioner himself is present in court and he is prepared to sign the petition if we direct him to do so. If the petitioner signs the petition, then the flaw which rendered the petition bad or made it not maintainable disappears. The only objection to the petition is that it is signed by an agent who is not a recognized agent. But if the petitioner himself signs it, then no further question arises with regard to the maintainability of the petiti ..... X X X X Extracts X X X X X X X X Extracts X X X X
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