K.B. Arasappa vs Dayanand Narayan Bongale

Aravind Kumar, J.—Heard Sri Prakash K.M., learned counsel appearing for petitioner. Order dated 23.06.2014 passed by XIX Addl. City Civil & Sessions Judge, Bangalore City, in O.S. No. 1409/2014 dismissing I.A. No. 2 filed by defendant under Order VII Rule 11(a)(d) of CPC, whereunder defendant had sought for rejection of plaint on two grounds namely:

(i) Plaint does not disclose cause of action; &

(ii) It has barred by law

has been called in question in this revision petition.

Trial Court has rejected the application filed by defendant holding that Power of Attorney executed by Principal namely, plaintiff in favour of agent Sri Sathyanarayana Rao included the authority to file suit for recovery of money also and as such, it has come to a conclusion that it would not bar the plaintiff to file the present suit through Power of Attorney.

The contention of Sri Prakash K.M., learned counsel appearing for the petitioner is that there is a distinction between ''Special Power of Attorney'' and ''General Power of Attorney'' and as such, the trial Court without considering the plea for rejection of the plaint by applying the provisions of Order 3 Rule 2 CPC has erroneously dismissed the said application. He would draw the attention of the Court to the recital found in the Special Power of Attorney wherein it is clearly stated that "As there exist a dispute with respect of the measurement of the schedule property, he is intending to file a case against Mr. K.B. Arasappa, in that regard he is appointing Mr. N. Sathyanarayana Rao as my attorney to institute the case against Mr. K.B. Arasappa" and as such, he contends that plaintiff has given his attorney/agent to do a particular act namely, to institute a suit with respect to dispute in measurement and not for recovering of money. Hence, the suit instituted by the plaintiff through the Power of Attorney for recovery of money is not maintainable and liable to be dismissed. This aspect having not been considered while examining LA. No. II by the trial Court is required to be considered by this Court and appeal be allowed as such.

Respondent-plaintiff has filed the suit in question against appellant-defendant for recovery of a sum of Rs. 62,57,168/- with interest @ 12% p.a. contending inter alia that he had entered into a sale agreement with defendant on 23.08.2011, whereunder he had agreed to sell the property bearing No. VP Khatha No. 6, House List No. 357 & 358 situated at Nagadevanahalli, Kengeri Hobli, Bangalore South Taluk, namely, the suit schedule property for a total consideration of Rs. 1,20,77,100/- and before entering into an agreement, property was physically measured and it was found that there was a short fall of 668.5 sq.ft. than what was agreed to under the sale agreement, which was to the total extent of 7,377.5 sq.ft. and contended that parties agreed to incorporate Clause 10 in the sale agreement, whereunder the defendant is said to have agreed to compensate the plaintiff to the extent of land they may recover from the encroachers in respect of schedule property even after the registration and the compensation agreed to be paid by the purchaser-defendant to the vendor-plaintiff would be based on the computation of the sale price agreed upon under the agreement of sale which was on square foot basis. Plaintiff contended that on 20.8.2011 sale deed prepared by defendant was furnished to the plaintiff for execution by indicating the sale consideration as Rs. 73,77,500/- instead of RS. 1,20,77,100/- as agreed between the parties and on being questioned defendant informed the plaintiff that he will make arrangements to pay the plaintiff the difference of the amount and the consideration payable in respect of alleged short fall of land measuring 668.5 sq.ft. on plaintiff delivering the said piece of land and defendant also agreed to get the sale deed rectified to the extent of the difference in value by paying adequate stamp duty and registration charges and as such, believing his words, plaintiff claimed in the suit that he executed registered sale deed in favour of defendant on 23.08.2011 in respect of suit schedule property. It was also contended that defendant had sworn to an affidavit on the same day assuring the plaintiff to reimburse the sum equivalent to the loss undergone by the plaintiff as on the date of sale deed, if the defendant recovers the encroached land. It was contended that later on, plaintiff was able to identify the land measuring 668.5 sq.ft and requested the defendant to execute rectification deed and pay the balance amount which was not paid and the demand made by the plaintiff was not complied by the defendant. Hence, claiming the difference of consideration from the sale agreement and the sale deed together with value of the short fall land, plaintiff filed the suit in question. The plaint has been presented to by the Power of Attorney holder of plaintiff Sri N Sathyanarayana Rao as "Special Power of Attorney holder'''' of plaintiff.

The cause of action for the suit has been pleaded in paragraph 15 of the plaint. Undisputedly, said suit has been filed by Special Power of Attorney-Sri Sathyanarayana Rao representing plaintiff. Perusal of said Special Power of Attorney would indicate that Principal has executed a Power of Attorney in favour of the agent Sri Sathyanarayan Rao to do acts on his behalf as enumerated thereunder. The ground urged by the learned counsel for petitioner is that agency created by the Principal would only authorize the agent to file the case against defendant in respect of dispute relating to measurement of suit schedule property only and it does not authorize him to file the suit for recovery of alleged difference of amount. Hence, he contends that recital in the Power of Attorney would not give the agent cause of action to file the suit and as such, the plaint ought to have been rejected by the trial Court under Order VII Rule 11(a) and (d) of CPC.

For invoking Rule 11 of Order VII CPC, plea raised by defendant in the written statement cannot form the basis and the averments made in the plaint alone is to be looked into and such averment made in the plaint is presumed to be true unless denied and proved after trial. It has to be discerned from the averments made in the plaint itself as to whether such averments would disentitle the plaintiff the relief sought for in the plaint and such relief is barred by any law. Merely because the defendant would be able to demonstrate before the trial Court after trial plaintiff would not be entitled for the relief sought for, same would not give right to the defendant to seek for rejection of plaint at the threshold by invoking Order VII Rule 11(d) CPC.

The words as could be found from Clause (d) is clear and unambiguous and it would clearly indicate that "where the suit appears from the statement in the plaint to be barred by any law" would entitle the defendant to seek for rejection of the plaint and not otherwise., In other words, defendant will have to demonstrate from the averments found in the plaint that suit in question is barred by any law in force.

Keeping these principles in mind when the facts on hand are examined, it cannot be gainsaid by the defendant that merely because the agent or the Power of Attorney holder has been authorised to file the suit against the defendant with respect to measurement of the suit schedule property only and as such, the attorney not possessing authority to present the suit would debar him from presenting the plaint in question cannot be accepted inasmuch as, the perusal of Special Power of Attorney in its entirety would clearly indicate that agent has been authorized to do all acts on behalf of Principal in respect of registered sale deed dated 23.08.2011 and the Principal has also agreed and undertaken to ratify and confirm all and whatsoever, his attorney under the power executed in his behalf was lawful to do, execute or perform and thereby the attorney has been empowered to do all other acts also on behalf of the Principal Hence, it cannot be said that either the agent is not having authority to file the suit for recovery of money from the defendant and there being no cause of action for the suit in question. It cannot be also held that there is any express prohibition under any law for the agent to present the plaint on behalf of the Principal as has been done in the instant case.

In that view of the matter, order passed by the trial Court rejecting the application under Order VII Rule 11(a) & (d) CPC cannot be construed as one suffering from any material irregularity or illegality calling for exercise of revisional jurisdiction by this Court.

Hence, I do not find any merit in the revision petition and same stands dismissed. No costs.