A.F. Syed Nazeemuddin vs M. Muthu and Mr. M. Saibhoosan

S. Rajeswaran, J.—This Civil Revision Petition has been filed against the order dated 10.10.2007 passed in I.A. No. 121 of 2007 in O.S. No. 756 of 2005 on the file of the District Munsif, Alandur. The First Defendant in O.S. No. 756 of 2005 is the Revision Petitioner.

O.S. No. 756 of 2005 has been filed by the Respondent/Plaintiff, represented by his Power Agent-Mr. M. Sai Bhoosan, for the following reliefs:

(a) Grant permanent injunction, restraining the First Defendant, his men, agents, servants, and others acting on behalf of him from interfering with the Plaintiff''s peaceful possession and enjoyment of the suit property in any manner.

(b) Grant permanent injunction restraining the First Defendant, his agents, from alienating or encumbering the suit property to any third party in any manner, without the consent from the Plaintiff herein.

(c) Grant permanent injunction restraining the Second Defendant, his department staff and subordinates from registering the documents if any presented by the First Defendant or his agent in respect of the suit property to and in favour of any third party, except the consent from the Plaintiff herein.

Written Statement has been filed by the Revision Petitioner/First Defendant and the Suit is being contested. Pending Suit, the Revision Petitioner/First Defendant filed I.A. No. 121 of 2006 to pass suitable direction directing the Plaintiff i.e. Thiru Muthu, who is the principal of the Power Agent-Thiru Sai Bhoosan to appear before the Court or he may be summoned and produced before the Court. This was resisted by the Respondent/Plaintiff by filing a Counter Affidavit. The Trial Court by order dated 10.10.2007 dismissed I.A. No. 121 of 2007 and aggrieved by the same, the First Defendant in the Suit has filed the above Civil Revision Petition under Article 227 of the Constitution of India.

Heard the learned Counsel for the Revision Petitioner and the learned Counsel for the Respondent. I have also gone through the documents filed in support of their submissions.

The learned Counsel for the Revision Petitioner submits that all along the Revision Petitioner is resisting the Suit by contending that there is no person of the description of the Plaintiff is in existence and the Power of Attorney has been created to sustain an imaginary claim by the Power of Attorney himself. But, the Trial Court has not adverted to this vital issue and wrongly dismissed the Application filed in I.A. No. 121 of 2007. This, according to the learned Counsel is an illegality which is to be corrected by this Court under Article 227 of the Constitution of India.

Per contra, the learned Counsel for the Respondent submits that the Trial Court has correctly observed that the Suit is in the stage of framing issues and the appearance of the principal is unwarranted at this stage. Therefore, according to him, no real prejudice would be caused to the Revision Petitioner warranting interference by this Court under Article 227 of the Constitution of India.

I have considered the rival submissions carefully.

It is not in dispute that the Suit in O.S. No. 756 of 2005 has been filed by the Plaintiff, Mr. M. Muthu, represented by his Power Agent-Mr. M. Sai Bhushan. A General Power of Attorney dated 23.8.2005 issued by Mr. M. Muthu in favour of Mr. Sai Bhoosan was filed along with the Plaint as Plaint Document No. 12. In his Written Statement, the Revision Petitioner/ Defendant stated that the suit properties were mortgaged to one Vedhachalam in 1947. In 1964, the property was sold to Vadivudai Animal. In 1971, the said Vadivudai Animal''s legal heirs joined together and executed a Sale Deed dated 21.10.1971 in favour of Kuppuswamy. On 23.7.1984, the said Kuppuswamy sold the property to the Revision Petitioner/First Defendant by a registered Sale Deed registered as Document No. 2363/84. Pursuant to the Sale Deed, the First Defendant took possession of the property and he was in enjoyment of the same. He further alleged in the Written Statement that the Plaintiff started manipulating records and the same was taken note by the Revision Petitioner and immediately a Police Complaint was lodged by him and the matter was referred to C.C.B. for further enquiry. Thereafter, the Revision Petitioner/First Defendant filed I.A. No. 121 of 2007 on the ground that the Respondent/Plaintiff started manipulating the records and fabricating documents with a view to grab the property. It was specifically stated by the Revision Petitioner in the Affidavit filed in support of I.A. No. 121 of 2007 that Mr. Muthu, the alleged Plaintiff is a fictitious person even according to the Police official and therefore his evidence is required for further proceedings in the Suit. This was resisted by the Respondent/Plaintiff by filing a counter wherein it is stated that if at all there is any grievance or doubt relating to the Power of Attorney, it is the duty of the Revision Petitioner to adopt the due procedure instead of levelling allegations. It is further stated that the baseless question raised by the Revision Petitioner/First Defendant regarding the Power of Attorney is against Section 85 of the Indian Evidence Act and further, Order 3, Rule 2, C.P.C., was complied with and a proper Suit has been filed. It is further stated that I.A. No. 121 of 2007 is premature as no one can be questioned before commencement of trial.

The Trial Court found from the records that the Suit has been filed by Mr. M. Sai Bhoosan, as Power of Attorney Agent of the Plaintiff-Muthu and an Application was filed along with the Suit in I.A. No. 3271 of 2005 to permit the agent to file the Suit on behalf of the said Muthu and the same was allowed on 12.12.2005. The Trial Court has also adverted to the fact that the registered Power of Attorney dated 23.8.2005 was filed as a Plaint document. The Trial Court went on to reject the prayer sought for in I.A. No. 121 of 2007 on the ground that the Suit is in the stage of framing issues and the appearance of the principal is unwarranted, and therefore, the Petition is not maintainable at this stage.

I am unable to accept the reasons given by the Trial Court for rejecting the I.A. No. 121 of 2007 as not maintainable at this stage.

Right from the beginning, it has been contended by the Revision Petitioner/First Defendant that the Respondent/Plaintiff is manipulating documents and therefore, a Complaint has been given to the Police. It is his specific case in I.A. No. 121 of 2007 that the Plaintiff-Muthu himself is a fictitious person and therefore, it is necessary to require his presence. When such serious allegations are levelled, it is always better to dispel such suspicion and doubt by directing the person to appear before the Court in person. After all, no real prejudice would be caused to the other side if such direction is given which would be in the interest of all the parties concerned in the Suit. Further, in this case, an ad-interim injunction has been granted by the Trial Court in favour of the Respondent/Plaintiff. If that being so, the Plaintiff-Muthu is to be directed to appear in person to ratify the Power of Attorney given to his agent Mr. Sai Bhushan. If that is not done now, and is postponed to a future date and if it is disclosed later on that the Plaintiff is a fictitious person, serious prejudice would be caused to the Revision Petitioner/First Defendant as already an interim order has been passed against him. Therefore, in the interest of justice, the Plaintiff-M. Muthu is directed to appear before the Court below on the next hearing date and only after his appearance before the Court below, further proceedings in the Suit shall go on.

Therefore, I am inclined to interfere with the order passed by the Trial Court in I.A. No. 121 of 2007 and accordingly, the order of the Trial Court dated 10.10.2007 is set aside and I.A. No. 121 of 2007 is allowed as prayed for. In the result, the Civil Revision Petition is allowed. No costs. Consequently, Miscellaneous Petition is also closed.