# Smt. Monica Saravanan v. R. Sarwanan

- **Citation:** (2023) 5 ILRA 1518
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2023-01-23
- **Case number:** First Appeal No. 43 of 2023
- **Bench:** Suneet Kumar, Rajendra Kumar-Iv
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/smt-monica-saravanan-v-r-sarwanan-50132
- **Pages:** 4

## Headnote

Civil Law - Family Courts Act, 1984-
Section 10 - Hindu Marriage Act, 1955 -
Section 13 - Divorce Petition - Power of
attorney - Whether wife can appoint her
father to do pairvi of the Divorce Petition
on her behalf, through special power of
attorney? - Held - Safeguard noted in
Syed Wasif Husain Rizvi Vs Hasan Raza
Khan & 6 others, AIR 2016 All 5, would
generally apply to power of attorney filed
in court proceedings on behalf of the
principal/donor or on behalf of a party to
a lis. Power of attorney by which the
donor authorises the donee must be
brought on the record and must be filed
together with the petition/application;
The affidavit which is executed by the
holder of a power of attorney must
contain a St.ment that the donor is alive
and specify the reasons for the inability of
the donor to remain present before the
Court to swear the affidavit; and The
donee must be confined to those acts
which he is authorised by the power of
attorney to discharge. In the event the
Court requires oral evidence, that can be
ensured through video conference. (Para
11, 12, 14)

Allowed. (E-5)

List of Cases cited:

## Text

1518 INDIAN LAW REPORTS ALLAHABAD SERIES
----------
(2023) 5 ILRA 1518
APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 23.01.2023

BEFORE

THE HON'BLE SUNEET KUMAR, J.
THE HON'BLE RAJENDRA KUMAR-IV, J.

First Appeal No. 43 of 2023

Smt. Monica Saravanan ...Appellant
Versus
R. Sarwanan ...Respondent

Counsel for the Appellant:
Sri Sujan Singh

Counsel for the Respondent:

Civil Law - Family Courts Act, 1984-
Section 10 - Hindu Marriage Act, 1955 -
Section 13 - Divorce Petition - Power of
attorney - Whether wife can appoint her
father to do pairvi of the Divorce Petition
on her behalf, through special power of
attorney? - Held - Safeguard noted in
Syed Wasif Husain Rizvi Vs Hasan Raza
Khan & 6 others, AIR 2016 All 5, would
generally apply to power of attorney filed
in court proceedings on behalf of the
principal/donor or on behalf of a party to
a lis. Power of attorney by which the
donor authorises the donee must be
brought on the record and must be filed
together with the petition/application;
The affidavit which is executed by the
holder of a power of attorney must
contain a St.ment that the donor is alive
and specify the reasons for the inability of
the donor to remain present before the
Court to swear the affidavit; and The
donee must be confined to those acts
which he is authorised by the power of
attorney to discharge. In the event the
Court requires oral evidence, that can be
ensured through video conference. (Para
11, 12, 14)

Allowed. (E-5)

List of Cases cited:

1. S. Ramachandra Rao Vs S. Nagabhushana
Rao & ors. (AIR 2022 SC 517)

2. Manju Devi Vs St. of Raj. & anr., (2019) 0
Supreme (SC) 462.

3. Haseen Siddiqui @ Jahangir Vs St. of U.P. &
ors., (2013) 0 Supreme (All) 2700.

4. Syed Wasif Husain Rizvi Vs Hasan Raza Khan
& ors., (AIR 2016 All 52).

(Delivered by Hon'ble Suneet Kumar, J.
&
Hon'ble Rajendra Kumar-IV, J.)

1. Heard learned Counsel for the
plaintiff-appellant/wife.

2. The instant appeal is directed
against the order dated 17.11.2022, passed
by the Principal Judge, Family Court, Agra,
in Case No.3039 of 2022, (Smt. Monica
Saravanan versus R. Saravanan), on an
Application (8-Ga) filed by the appellant,
wherein, the prayer of the appellant,
appointing her father, to do pairvi in the
case through special power of attorney, as
appellant would not be available in the
country, as she intents to proceed to Canada
to pursue her carrier. Application came to
be rejected by the impugned order,
wherein, it is noted by the learned Trial
Court that the application under Order 3
Rule 2 CPC has not been instituted through
an agent or power of attorney holder. It is
further noted that the appellant-plaintiff is
present in the Court and submits that for
further proceedings she has appointed her
father through special power of attorney to
do pairvi in the matter. The application
came to be rejected, as in the opinion of the
5 All. Smt. Monica Saravanan Vs. R. Sarwanan
1519
Court, the power of attorney has not been
filed in the representative capacity.

3. Learned Counsel for the applicant
submits that the Court below committed an
error in rejecting the Application (8-Ga),
the suit under Section 13 of the Hindu
Marriage Act, 1955, was filed by the
appellant, and in order to pursue her carrier
she has to proceed abroad, therefore, the
appellant was justified to appoint a
confidant through special power of attorney
to do parivi. Further, an undertaking was
also given that she would be bound by the
outcome of the judicial proceedings.
Learned Counsel for the appellant further
submits that her oral evidence, if required,
or directed by the Court, the appellant is
prepared to join the court proceedings
through
video
conference
which
is
permissible under the Code of Civil
Procedure, as well as, the Evidence Act.

4. Attention of the Court has also be
drawn to Section 10 of the Family Courts
Act, 1984, which provides the procedure
applicable to the Family Courts, which
reads as under:-

"10. Procedure generally.--(1)
Subject to the other provisions of this Act
and the rules, the provisions of the Code
of Civil Procedure, 1908 (5 of 1908) and
of any other law for the time being in
force shall apply to the suits and
proceedings [other than the proceedings
under Chapter IX of the Code of Criminal
Procedure, 1973 (2 of 1974)] before a
Family Court and for the purposes of the
said provisions of the Code, a Family Court
shall be deemed to be a civil court and
shall have all the powers of such court.

(2) Subject to the other provisions
of this Act and the rules, the provisions of
the Code of Criminal Procedure, 1973 (2 of
1974) or the rules made thereunder, shall
apply to the proceedings under Chapter IX
of that Code before a Family Court.

(3) Nothing in sub-section (1) or
sub-section (2) shall prevent a Family
Court from laying down its own procedure
with a view to arrive at a settlement in
respect of the subject-matter of the suit or
proceedings or at the truth of the facts
alleged by the one party and denied by the
other."

5. Further Section 11 of the Family
Courts
Act,
1984,
mandates
that
proceedings to be held in camera, which
reads as under:-

"11. Proceedings to be held in
camera.--In every suit or proceedings to
which this Act applies, the proceedings may
be held in camera if the Family Court so
desires and shall be so held if either party
so desires."

6. Reliance have been placed upon the
judgments passed by Supreme Court in S.
Ramachandra
Rao
versus
S.
Nagabhushana Rao & Others (AIR 2022
SC 517) Paragraph 14 and Manju Devi
versus State of Rajasthan and another,
(2019) 0 Supreme (SC) 462.

7. Further, reliance have also been
placed upon the judgments of this Court in
the case of Haseen Siddiqui @ Jahangir
versus State of U.P. and others, (2013) 0
Supreme (All) 2700. Full Bench judgment
rendered in Syed Wasif Husain Rizvi
versus Hasan Raza Khan & 6 others, (AIR
2016 All 52).

8. The term power of attorney refers to
a legal authorization that gives a designated
person the power to act for someone else.
As such, a power of attorney gives the
1520 INDIAN LAW REPORTS ALLAHABAD SERIES
agent or attorney-in-fact the authority to act
on behalf the principal. The agent may be
given broad or limited authority to make
decisions about the principal's property,
finances, investments, or for any other
purpose. A power of attorney is a legal
document that involves the agent or
attorney-in-fact, and the principal. It is used
in the event of a principal's temporary or
permanent illness or disability, or when
they can't sign necessary documents.

9. A Bench of three learned Judges of
the Supreme Court in A.C. Narayanan
versus State of Maharashtra, AIR 2014
SC 630, observed thus :-

"The power of attorney holder is
the agent of the grantor. When the grantor
authorises the attorney holder to initiate
legal proceedings and the attorney holder
accordingly
initiates
such
legal
proceedings, he does so as the agent of the
grantor and the initation is by the grantor
represented by his attorney holder and not
by the attorney older in his personal
capacity."

10. A special power of attorney is a
legal document outlining the scope of
authority given to an agent, known as "an
attorney in fact," by the principal. Under
the special power of attorney, an agent is
given the powers to act on behalf of the
principal to make specific legal or financial
decisions. It is also referred to as Limited
Power of Attorney and is used as evidence
of the principal's authority to the third
person with whom the principal may be
dealing with.

11. The Full Bench in Syed Wasif
Husain Rizvi (supra) answering the
reference that writ petition under Article
226 of the Constitution of India can be filed
through a power of attorney holder but
cautioned that the institution of the petition
may be filed observing adequate safeguards
which include:-

(1) The power of attorney by
which the donor authorises the donee, must
be brought on the record and must be filed
together with the petition/application;

(2)
The
affidavit
which
is
executed by the holder of a power of
attorney must contain a statement that the
donor is alive and specify the reasons for
the inability of the donor to remain present
before the Court to swear the affidavit; and

(3) The donee must be confined
to those acts which he is authorised by the
power of attorney to discharge.

12. The safeguard noted herein above
would generally apply to power of attorney
filed in court proceedings on behalf of the
principal/donor or on behalf of a party to a
lis.

13. The trial Court committed an error
in rejecting the application of the appellant
bringing on record the power of attorney
herself. The power of attorney holder
(father of the appellant) has been duly
authorized by the appellant to appear in the
proceedings on her behalf. The appellant
can appear through video conference in the
event her appearance is required for cross
examination, or for any other purposes as
directed by the Court. The power of
attorney holder has been conferred limited
right to file affidavits and to do pairvi on
behalf of the appellant, hence, in the
absence of the appellant the power of
attorney holder has been duly authorised to
appear on her behalf.

14. Accordingly, the impugned order
dated 17.11.2022 passed on Application
5 All. Sadaram Vs. State of U.P. & Ors.
1521
8-Ga is set aside. The proceedings of the
suit shall be conducted on behalf of
appellant through the special power of
attorney holder. In the event, the trial Court
requires oral evidence of the appellant, that
can be ensured through video conference.

15.
The
appeal
is,
accordingly,
allowed.
----------
(2023) 5 ILRA 1521
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 17.05.2023

BEFORE

THE HON'BLE RAJESH SINGH CHAUHAN, J.

Public Interest Litigation (PIL) No. 415 of 2023

Sadaram ...Petitioner
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioner:
Vinay Kumar Tiwari

Counsel for the Respondents:
C.S.C., Pankaj Gupta

Public Interest Litigation - Removal of
illegal encroachment over public utility
land - The Court directed the Principal
Secretary, Department of Revenue, Civil
Secretariat,
U.P.,
Lucknow,
to
issue
necessary
directions/directives/circulars
to ensure that the public utility land of
Gaon Sabha is free from encroachment
and that such public utility land is utilized
only for the purpose for which it has been
recorded in the revenue records.
Allowed. (E-5)

(Delivered by Hon'ble Rajesh Singh
Chauhan, J.)

1. Heard Sri Vinay Kumar Tiwari,
learned counsel for the petitioner and Sri
Yogesh Kumar Awasthi, learned Standing
Counsel for the State-respondents no.1, 2 &
3. Notice for opposite party no.4/Gaon
Sabha has been accepted by Sri Pankaj
Gupta.

2. Sri Ganesh Nath Mishra, learned
Advocate, has filed Vakalatnama on behalf
of opposite party no.5, the same is taken on
record.

3. By means of this petition, the
petitioner has prayed following main
reliefs:-

"(i) Issue a writ, order or direction in
the
nature
of
Mandamus
thereby
commanding
the
opposite
parties/
Authorities concern to ensure release of
Gaon Sabha Land i.e. Gata No. 653/0.1980
hectare, recorded as Rasta in the revenue
record situated in Village - Veshahupur,
Motiganj, Seeha Gaon, Gonda, which are
recorded as public utility land in the
revenue record, from illegal encroachment
of the land grabbers and restore it to its
original shape.

(ii) Issue a writ, order or direction in
the nature of mandamus commanding the
opposite party no. 1 to initiate inquiry
against inaction on the part of the
authorities
concern
in
not
removing
encroachment from Gaon Sabha Land i.e.
Gata No. 653/0.1980 hectare, recorded as
Rasta in the revenue record situated in
Village
-Veshahupur,
Motiganj,
Seeha
Gaon, Gonda which are recorded as public
utility land in the revenue record, from
illegal encroachment of the land grabbers,
in
order
to
punish
the
guilty
persons/authorities."

4. At the very outset, Sri Ganesh Nath
Mishra, learned counsel for opposite party
no.5 has raised objection to the effect that