1) POA can be given by senior citizen
2) during trial your mother presence was necessary to give evidence as she has personal knowledge
3) you cannot directly approach HC
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Case dismissed on the basis of Power of Attorney !!!
Recently a civil suit was pending in the court regarding ownership of a property in which my mother was the plaintiff and she had given her son(me) special power of attorney. The case was registered in 2018 and due to my mother’s ill health,she had given me the power of attorney in 2019 to carry forward the further proceedings in court on her behalf. Honourable Judge dismissed this case on the basis of this power of attorney stating that it’s not maintainable on the grounds that it was registered later in 2019 whereas the case was registered in 2018. Few points on which I need your guidance are: 1) Can a senior citizen give his/her power of attorney to their children in case of ill health and they not being able to go to court again and again ? 2) Why did Judge dismiss this case merely on the grounds of power of attorney whereas the plaintiff had all the necessary evidences to prove that this property belonged to her ? 3) If a civil suit is dismissed then 30 days are given to file an appeal in Session Court. Can plaintiff directly reach out to High Court in this case rather than filing an appeal ? 4) My mother(Plaintiff) is a heart patient, widow and old aged person. Kindly guide me on what grounds should now the plaintiff proceed in order to get justice on the basis of her evidences. We need fast track justice for plaintiff due to her health conditions and on emotional grounds so please guide us.
Asked 1 year ago in Property Law
Religion: Sikh
13 Answers
Dear Client,
Here is the possible response to your queries.
1.If a senior citizen has very serious health concerns and is unable to attend in court, he or she may award a child the power of attorney. The PoA registration time must be precise and legitimate.
2.The petition was filed after the case was filed, which is likely why the case was dismissed. This, however, can be contested on the grounds that it was carried out because of her deteriorating condition. There is merit to this case; in instances like this, procedural formalities have no place.
3.In certain situations where the dismissal orders are purely procedural and will cause injustice, an individual may file an appeal under Article 227 to the High Court in addition to the Sessions Court appeal, which must be filed within 30 days of the judgment's announcement.
4.Submit a writ petition or an appeal with the following focus: Mother's health and the pressing nature of the matter. The PoA's validity in light of disease. -Showing off all the evidence, which establishes her ownership prima facie. This could be a calculated move to get the evidence acknowledged and to get the case reexamined.
Thank you.Hope this answers your query.
Not Maintainable.
She does not to appear in court but only to submit her evidence, for that only she needs to appear two times, on rest dates , you could have watched the proceedings.
File application for restitution in the name of mother only. Or file fresh suit on the basis of POA on her behalf.
1. Yes, there's no legal infirmity in it provided that the plaintiff filed a petition under order 3 rule 2 seeking permission of court to represent through authorized representative.
2. Without seeing the copy of the judgment no opinion can be rendered.
3. The first appeal has to be filed before district court.
4. You can obtain a second opinion also from another lawyer by producing the judgment copy before filing an appeal.
1. Yes, Court cannot deny to receive the SPA on behalf of the senior citizen and the person who is unable to appear before the Court.
2. You can challenge the said passed order before the Higher Court.
3. You should approach Session Court before going to High Court.
4. You can produce her medical prescriptions before the Court for maintainability and to hear the matter on urgent basis.
What if the person fails to file an appeal within 30 days, can we still move forward to High Court in this case or not ?
Asked 1 year ago
You can make an application for consolation of delay and file appeal
If an appeal is not filed within the time limit then a petition under section 5 of Limitation act can be filed to condone the delay in filing the appeal, in any case you cannot approach high court directly before exhausting the remedies before the district court with an appeal..
- The limitation period for filing the appeal in District Court is 30 days from the date of order , and 90 days for high Court.
- You can file the appeal even after 30 days with an application for condonation of delay on the valid grounds for delay.
1) If mother’s health is not well and she cannot contest the case then can she make a gift deed in the name of me(son) and then I can carry forward the entire proceedings of the case including filing appeal to higher court ? 2) Is it legal to make gift deed from mother to son when the other party is in forceful possession of this property involved so that son can fight the case properly without mother getting harassed ?
Asked 1 year ago
Mother cannot execute gift deed as she is not in possession of the property
mother can execute will bequeathing property to you
1. The gift deed of the property subsequent to institution of the suit will not automatically entitle the beneficiary to replace the plaintiff to conduct the case.
The plaintiff either has to withdraw the case or to authorise the beneficiary to continue the case by giving power of attorney deed for some valid reasons
2. It is not advisable to transfer or alienate the suit property during pending litigation, if the defendant is objecting to it and seeks to dismiss the case for this reason then it will be an embarrassing situation to the plaintiff.
Hence don't try to use such fancy ideas which may become fatal to your case.
My mother is a heart patient with pacemaker implanted since 2013, she also has multiple medical issues like arthritis, hearing loss etc. She lost her husband in 2018. She also went through another heart operation in 2023. 1) Are these all medical conditions and emotional grounds not sufficient in the Court to prove that my mother could not have come to court again and again so that’s why she had given power of attorney to me. 2) According to me Judge decision is completely wrong stating that power of attorney should have been given when the case started. What if the person had medical issues later on and could not continue the case then why can’t her son contest the case on her behalf? 3) My mother is a widow and she has only me as a child with her. So when she completely depends on me then why can’t I fight case on her behalf even if the power of attorney was done in 2019 whereas the case was registered in 2018. 4) Our case was dismissed on the grounds of procedural failure in the Court, so that’s the fault of lawyer in misguiding us and not showing us the right path. In this what is the fault of plaintiff and his family as due to this procedural failure our 7 years have been wasted. So this comes out to be fault of our lawyer as well as Judges who didn’t point out this power of attorney as non maintainable in the earlier stage but gave a verdict at the end of 7 years which is injustice to us.
Asked 1 year ago
Yes medical reports are sufficient to prove that mother could not have attended court personally
2) I agree that judge decision is wrong
3) you can appear on her behalf on basis of POA
4) file appeal against impugned order
1. The documents in possession to establish her medical conditions are sufficient to prove that she will not be able to appear in person before court on all regular hearings hence she can be permitted to be represented by her power agent.
2. The decision of judge in dismissing the application seeking permission to be represented through the power agent is not justified hence a civil revision petition before high court can be filed seeking relief.
3. There's no legal infirmity to represent your ailing mother by a power of attorney deed in your favour.
4. A lawyer cannot be held responsible for this if the court has erred in its judgement.
You may prefer a civil revision petition against this decision if the case is still going on.
Dear Client,
Here is the possible response to your queries
You still have the option to appeal in the High Court even if the 30-day deadline has passed by requesting condonation of delay through Section 5 of the Limitation Act, 1963. This can be done by citing the medical reasons for your mother’s illness as the cause for the delay, not her absence.
According to the Transfer of Property Act, 1882, a gift deed from your mother to you is considered lawful. Ownership of the property might be contested or forcefully taken, but you can challenge the situation under your name once the gift is finalized.
The mother’s health issues fall under Section 32 of the Civil Procedure Code, 1908, where a power of attorney has been given due to her current incapacity to act and someone is authorized to act on her behalf. If the dismissal was based on procedural reasons, an appeal would be possible because Indian law does not require the power of attorney to be executed during the filing of the case.
Your lawyer’s procedural mistake can be used as a reason for appeal, as procedural errors should not result in the unfair dismissal of the plaintiff’s substantive rights. You can dispute this based on the belief that legal technicalities should not supersede fairness, as indicated by past rulings from the Supreme Court of India.
Thank you.Hope this answers your query.