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IN THE HIGH COURT OF BOMBAY AT GOA

WRIT PETITION NO. 729 OF 2011

Sine Fine Advertising (P) Ltd.

Represented by its local
Assistant Branch Manager,
Smt. Pravina Pramod Fatarpekar,
The Power of Attorney,
holder duly authorised by the,
Company having its branch
Office at M-46,
Hosing Board,
Alto Porvorim, Goa. …... Petitioner

Versus

Smt. Salette Miranda e Shetty,

House No.683,
Ferry Point, Betim,
Bardez, Goa. …... Respondent

Shri C. Fonseca, Advocate for the Petitioner.

Shri V. A. Lawande, Advocate for the Respondent.

Coram :- F. M. REIS, J

Date : 1st December, 2011.

ORAL JUDGMENT

Heard Shri C. Fonseca, learned Counsel appearing for the Petitioner

and Shri V. A. Lawande, learned Counsel appearing for the Respondents.

2. Rule. Heard forthwith with the consent of the learned Counsel.

Learned Counsel appearing for the Respondents waives service.

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3. This is a Petition to challenge the Order dated 15.03.2011 passed by

the learned Civil Judge, Senior Division, Mapusa, whereby an application filed by

the Petitioners to substitute the Power of Attorney came to be rejected. The

Petition also challenges another Order passed by the learned Judge dated

20.10.2011, whereby similar application came to be rejected on the ground that this

issue has become resjudicata.

4. Shri Fonseca, learned Counsel appearing for the Petitioners has

pointed out that by the applications filed by the Petitioners, the Petitioners only

desire to examine a new Power of Attorney who according to the learned Counsel

was a duly authorised representative of the Private Limited Company and, as such,

the learned Judge was not justified to pass the impugned Order refusing such

reliefs to the Petitioners. Learned Counsel further pointed out that the earlier

Power of Attorney is no longer associated with the Petitioner and, as such, the

question of calling such person on behalf of the Petitioner does not arise at all. The

learned Counsel has taken me through the impugned Order and pointed out that

the learned Judge has misconstrued the well settled principles of law and has

erroneously dismissed the application filed by the Petitioners.

5. On the other hand, Shri Lawande, learned Counsel appearing for the

Respondents, disputed the contentions of the learned Counsel appearing for the

Petitioner. The learned Counsel has pointed out that the Petitioners are

unnecessarily delaying disposal of the suit by filing untenable application. The

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learned Counsel further submits that there is no provision whereby Power of

Attorney can be substituted and there is no bar a fresh Power of Attorney can be

examined on behalf of the Petitioners. Learned Counsel Shri Lawande as such

submitted that the Petition deserves to be rejected.

6. Having heard the learned Counsel and on perusal of the records, I

find that the reliefs sought by the Petitioners in the application filed by them before

the learned Judge are totally misplaced. The question of filing any application to

substitute a Power of Attorney does not arise at all. But, however, The learned

Judge ought to have permitted the new Power of Attorney who is duly authorised to

represent the Petitioners to depose on their behalf in accordance with law. As

such, the learned Judge has committed an error in exercising its jurisdiction by

refusing the request of the Petitioners to permit a fresh Power of Attorney to be

examined on behalf of the Petitioners. No doubt, the Respondents are always

entitled to dispute such authority of such new Power of Attorney in the cross

examination of such witness. In view of the above, I find that the impugned Orders

dated 15.03.2011 and 20.10.2011 cannot be sustained and deserves to be modified

for the aforesaid reasons.

7. In view of the above, I pass the following :

ORDER

(i) The impugned Orders dated .15.03.2011 and 20.10.2011

are modified and the Petitioners are permitted to examine
the fresh Power of Attorney duly authorized by the
Petitioners to depose in the suit in accordance with law.

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(ii) Rule is made absolute in the above terms.

(iii) Petition is disposed of accordingly with no order as to

costs.

F .M. REIS, J.

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