TMI Blog1930 (2) TMI 17X X X X Extracts X X X X X X X X Extracts X X X X ..... ake and do such appearances, applications and acts on behalf of such parties. The plaintiff in this case is a resident at Basra in Iraq, and has given a power of attorney to a person residing in Bombay who has signed the plaint, and it is contended that this power of attorney is a special power of attorney and not a general power of attorney. The terms of the power of attorney are:- I, the undersigned Ephrayim Hiskail Ephrayim residing at Seef quarter Basrah, Iraq, do hereby constitute and appoint Mr. Khedoori Rubain Aboodi residing at present at Bombay India, to be my true and lawful attorney in connection with realisation of the amount of decree No. 144 of 1023 for Rupees five thousand besides the Court expenses passed by the Court of first instance at Basrah against Turner Morrison Co., at Bombay India. The said attorney is further authorised to file suit, make application and sign documents and appoint pleaders relative to the above suit, give receipt for the amount and make compromise, ask for attachment or the imprisonment of the debtor and generally do all what he thinks necessary in the above case the same manner would I done if present to which I have absolutely no o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t does not fulfil the conditions laid down in the amended rule as framed by this Court. It has been contended that in any event it is only a matter of procedure not affecting the merits of the case, and reference has been made to Qanpati Nana v. Jivanabai ILR (1922) 47 Bom. 227 : 24 Bom. L.R. 1302, in which, in view of the provisions of Section 93 of the Code of Civil Procedure, the Court refused to interfere in a case where a suit had been instituted on a power of attorney which was liable to the same objection as the one in the present case. But it is a different matter where the suit has already been heard and a decree has been passed, as in that case the provisions of Section 99 of the Code of Civil Procedure debar the appellate Court from interference in appeal on account of any error, defect or irregularity in any proceeding in the suit not affecting the merits of the case or the jurisdiction of the Court. The same was the case in the case which is referred to in Vardaji Kasturji v. Ghandrappa ILR (1916) 41 Bom. 40 : 18 Bom. L.R. 821 and Charles Palmer v. Sorabji Jamshedji (1886) P.J. 63. In that case also, it was held that although the power of attorney was defective, the ap ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... defendants during the war and afterwards had a branch in Basra. In 1920 they sold some cases of cigarettes to one Darvesh, Darvesh transferred the contract to the present plaintiff. In the course of this contract a deposit of ₹ 5,000 was made, at this stage we may say, made on behalf of the plaintiff, but that is a disputed question, as well as a promissory note passed for ₹ 5,000 as security for the performance of the contract. Subsequently, however, as the defendants say, owing to the termination of the war and the removal of the troops from Iraq and the consequently lessened demands for cigarettes, the market fell, the plaintiff did not take delivery of the goods. The cigarettes were, therefore, sold by Messrs. Turner, Morrison Co. at a loss of ₹ 23,000. They brought a suit against the present plaintiff in the Court of Basra in 1921 to recover that amount. In the course of his written statement the defendant, the present plaintiff, counterclaimed for the amount of the deposit. The plaintiff's suit was dismissed, but the counterclaim does not seem to have been awarded, the plaintiff says because he did not pay the court-fees on it acting under advice. How ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ned in this case was that the defendants, as I have already said, had been served with the summons, and the correspondence show that they had notice of this suit. It also appears that they had given a power of attorney to one Menasse, a pleader, in 1922, and as far as appears in this case, that power of attorney was still in force because, although Mr. Gillespie examined as a witness says that he cancelled all these powers of attorney, it seems that Menasse was still in possession of the power of attorney which was filed in the record of this case, and a certified copy is before this Court. Menasse produced the power of attorney in the Court when the case came on for hearing. Also from the correspondence of Messrs. Turner, Morrison Co., which has been filed in this case, and from the telegrams which have been put in, it is perfectly clear that the pleader Menasse had instructions from Turner, Morrison Co., Bombay, to appear on their behalf and to act under the instructions of Messrs. Andrew, Weir Co. who were in Basra and to apply for an adjournment. The adjournment was refused. The Court then proceeded to go into the papers in the former proceedings and to pass a decree agai ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ll in the suit in the Ceylon Court, and the case was allowed to proceed ex parte against the defendant. It was held that the defendant must be deemed to have submitted himself to the jurisdiction of the foreign Court by reason of the execution of the power of attorney. It was further held that ordinarily a judgment delivered ex parte is deemed to be on the merits, and it is only when a defence has been raised and for some reason or another has not been adjudicated upon that the decision can be said to be not upon the merits, and that the ex parte judgment in that case must be deemed to be one passed on the merits as the defendant did not at all appear in the case. This is practically on all fours with the present case. In the present case Turner, Morrison Co. were served while they were actually residents in Basra. Although at the time when the suit came on for hearing Mr. Gillespie was not resident in Basra,, the pleader Menasse, who held a power of attorney from the firm and was retained to appear in the case, was in Basra. He represented the defendants in fact. That he did not receive any instructions to defend the case on the merits does not, in my opinion, prevent the decisi ..... X X X X Extracts X X X X X X X X Extracts X X X X
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