M.L. Mehta, J.@mdashThis petition under Article 227 of the Constitution is filed impugning order dated 30.03.2011 and 06.08.2012 of Administrative Civil Judge (ACJ), by the petitioner who was defendant in the suit. In the suit that was filed by the respondent, the ACJ had permitted him to file Power of Attorney (POA) executed by its firm in favour of witness PW-1, vide order dated 30.03.2011. The petitioner filed an application u/s 151 CPC for recalling the said order. The same was dismissed by the ACJ vide the impugned order dated 06.08.2012. The said order is challenged by the petitioner in the instant petition. The grounds which have been taken to challenge the said order are the same which are taken before the ACJ.
2. I have heard the Learned Counsel for the petitioner and perused the records.
3. The submission of Learned Counsel for the petitioner is that since there was no POA filed by the respondent/plaintiff before or at the time of examination of PW-1, the same could not be taken on record. The Learned Counsel relied upon certain judgments to substantiate his plea. All the judgments which are relied upon by the Learned Counsel for the petitioner, have been rightly noted by the ACJ to be not applicable to the facts of the instant case, as in those cases the POA was executed after the filing of the suit and after the expiry of limitation. In the instant case he noted, and rightly so, that the POA which was allowed to be filed, was already executed, even before the institution of the suit. It was only by mistake that the same was not filed. It was nothing, but an irregularity which had occurred in not filing the POA and that was a curable one. No doubt the filing of POA was mandatory at the time of filing of suit or at least at the time of examination of PW-1, but it does not mean that the non compliance thereof would result in automatic rejection of the plaint or that of the POA. The respondent/plaintiff had sought to rectify the defect when it was noticed. In fact, such defects are curable not only on the application of the respondent/plaintiff, but even suo moto, by the Court. It is settled law that procedural defects and irregularities, which are curable, could not be allowed to defeat substantive rights or to cause injustice. Procedure, a hand maiden to justice, should never be made a tool to deny justice or perpetuate injustice, by any oppressive or punitive use. In view of my above discussion, I do not see any merit in the instant petition. Dismissed.
