CRP/4904/2013 of P.Pushpamala Reddy Vs Janga Raghava Reddy on 31 December 2014

*THE HON’BLE SRI JUSTICE SANJAY KUMAR

C.R.P.NO.4904 OF 2013

% 31-12-2014# P. Pushpamala ReddyVs.

… Petitioner

$ Janga Raghava Reddy

...Respondent

<GIST:

>HEAD NOTE:

! Counsel for petitioner : Sri T.V.Ramana Rao ^ Counsel for respondent : ? CASES REFERRED:

[1] (2006) 6 SCC 4562.AIR 2012 SUPREME COURT 3912

THE HON’BLE SRI JUSTICE SANJAY KUMARCIVIL REVISION PETITION NO.4904 OF 2013DATED 31[st] DECEMBER, 2014Between:P. Pushpamala Reddy… PetitionerandJanga Raghava Reddy … Respondent THE HON’BLE SRI JUSTICE SANJAY KUMAR

CIVIL REVISION PETITION NO.4904 OF 2013O R D E R

The first defendant in O.S.No.39 of 2008 on the file of the learnedIV Additional District Judge (FTC), Warangal, filed I.A.No.255 of 2013therein under Order 7 Rule 11 CPC seeking rejection of the plaint. Byorder dated 17.07.2013, the trial Court dismissed the I.A. Aggrieved, thefirst defendant is before this Court under Article 227 of the Constitution.

This Court issued notice to the respondent/ plaintiff on21.02.2014. The notice was however returned with the endorsement‘not claimed’. Significantly, the address to which the notice was sentwas the same address furnished by the respondent/plaintiff in his plaint.Failure of the respondent/plaintiff to claim the notice sent throughregistered post to his last known address would therefore qualify as‘deemed service’ (D. VINOD SHIVAPPA V/s. NANDABELLIAPPA[[1]]).

The suit, O.S.No.39 of 2008, was filed against the petitioner/ firstdefendant and her former General Power of Attorney holder (‘GPAholder’) for specific performance of a sale agreement. The case of therespondent/plaintiff was that the GPA holder had entered into anagreement of sale with him on 22.02.2008. While so, by way of thesubject I.A., the petitioner/first defendant contended that there was aclear prohibition in the deed of power of attorney executed by her, which barred the GPA holder from entering into any kind of agreement oralienation by way of sale, mortgage, exchange, donation or transfer ofany other kind in respect of the suit property. She therefore assertedthat there was no cause of action for the respondent/plaintiff to seekspecific performance of the alleged agreement of sale as there was noprivity of contract between herself and the respondent/plaintiff.

It is pertinent to note that earlier, when the trial Court granted aninterim injunction restraining the defendants in the suit from alienatingthe suit property, the petitioner/first defendant filed C.M.A.No.295 of2010 before this Court challenging the said order. A learned DivisionBench of this Court allowed the CMA on 04.12.2012. Perusal of theorder passed in the CMA reflects that the Bench opined that theagreement of sale said to have been executed by the GPA holder,purportedly on behalf of the first defendant, lacked authority of law asClause 7 of the General Power of Attorney specifically prohibited anysort of alienation of the suit schedule property by the GPA holder. Having stated so, the learned Division Bench directed the trial Court todispose of the suit expeditiously and on priority basis.

Surprisingly, the trial Court referred to and extracted theobservations of the learned Division Bench in the said order but failed toinfer the significance of the findings of this Court. No doubt, the learnedDivision Bench had directed the trial Court to dispose of the suituninfluenced by its observations, but the legal position as spelt out bythis Court ought to have been a guiding factor to the trial Court whileconsidering the petition filed by the petitioner/first defendant seekingrejection of the plaint. Further, the observation of the trial Court that thequestions as to whether the first defendant had executed the GeneralPower of Attorney or not; whether she had any intention of prohibitingthe GPA holder from executing the agreement; and whether the GPAholder had any authority after execution of the said General Power ofAttorney, could be gone into only after a full-fledged trial, is peculiar tosay the least. The petitioner/first defendant had never denied executionof the General Power of Attorney. Her intention to prohibit the GPA

holder from selling the suit property was evident from Clause 7 therein,as pointed out by this Court in the order passed in the CMA. In the lightof such prohibition, this Court had already found that the GPA holderlacked authority to enter into the alleged agreement of sale. Therefore,the questions posed by the trial Court were redundant as the answersthereto were self-evident and needed no independent adjudicationthrough a full-fledged trial.

The provisions of Order 7 Rule 11 CPC are couched in liberalterms so as to vest the trial Court with the power of rejecting the plaint atthe threshold so that the valuable time of the Court is not wasted inadjudicating frivolous suits which could be rejected in limine. Theopinion of the trial Court that a separate issue could be framed as to therejection of the plaint and that the same could be gone into in the mainsuit after a full-fledged trial is completely retrograde and lacks properunderstanding of the objective and purpose underlying the provisions ofOrder 7 Rule 11 CPC.

Reference may also be made to the judgment of the SupremeCourt in THE CHURCH OF CHRIST CHARITABLE TRUST ANDEDUCATIONAL CHARITABLE SOCIETY, REP. BY ITS CHAIRMANV/s. M/S. PONNIAMMAN EDUCATIONAL TRUST REP. BY ITS

CHAIRPERSON/MANAGING TRUSTEE[[2]]. Therein also, the firstdefendant in the suit, being the owner of the property, had executed aregistered power of attorney in favour of the second defendant for limitedpurposes. While so, a suit for specific performance was filed upon analleged sale agreement executed by the second defendant basing onthe power of attorney. The first defendant society filed an applicationunder Order 7 Rule 11 CPC seeking rejection of the plaint. A learnedSingle Judge of the Madras High Court ordered the application but thatdecision was reversed by a Division Bench of the Madras High Court. The issue thereupon came before the Supreme Court. The SupremeCourt observed that the plaintiff/respondent, to get a decree for specificperformance, had to prove that there was a subsisting agreement in his

favour and that the second defendant had the necessary authority underthe power of attorney to execute the agreement of sale. The SupremeCourt further observed that the power of attorney had to be strictlyconstrued and in order to agree to sell or effect a sale, a power ofattorney holder should be expressly authorized with the power toexecute such an agreement of sale or sale deed. Perusal of the powerof attorney in that case manifested that no such power of selling orentering into an agreement of sale was conferred upon the attorney. The Supreme Court therefore held that the second defendant, standingin a fiduciary capacity under the power of attorney, could not have actedfor his own benefit and therefore, the plaint was liable to be rejected atthat stage itself as the cause of action pleaded was vitiated. The factsbeing identical, the principle laid down in this decision applies on allfours to the case on hand.

Thus, the trial Court completely misapplied itself whileconsidering the subject I.A. in the light of the settled legal position. Thesubject suit was clearly without cause of action in the light of the positiveembargo placed on the GPA holder from alienating the suit property andas the suit was admittedly based on an alleged agreement of saleexecuted by the said GPA holder. The trial Court therefore ought tohave rejected the plaint on this count. The order of the trial Court holdingto the contrary is clearly unsustainable in law and is accordingly setaside. I.A.No.255 of 2013 in O.S.No.39 of 2008 is allowed. Applyingthe provisions of Order 7 Rule 11 CPC, the plaint in O.S.No.39 of 2008on the file of the learned IV Additional District Judge (FTC), Warangal,shall stand rejected and the suit shall stand dismissed.

The Civil Revision Petition is allowed but, in the circumstances,without any order as to costs.

______________________

SANJAY KUMAR, J

31[st] DECEMBER, 2014L/R copy to be marked – Yes B/o Svv [1](2006) 6 SCC 456

[2]AIR 2012 SUPREME COURT 3912