M. Nelson Babu vs K. Kamalesh Babi and K. Vijayakumar

Aruna Jagadeesan, J.—These Civil Revision Petitions are filed by the 2nd Defendant against the order dated 12.6.2008 passed in IA. Nos.

280 and 281 of 2008 in OS. No. 99/2009 by the learned Principal District Munsif, Nagercoil, declining to review the order passed in IA. No.

167/2008 dated 28.1.2008 and dismissing the petition filed under Order 7 Rule 11 of CPC respectively.

The Respondents/Plaintiffs filed the above said suit to declare that the Document No. 547/2007 dated 13.2.2009 of Kottaram Sub Registry

relating to the suit schedule properties in P10, 20/2, 20/3 of Nagercoil Village including the whole of the property as P10-20 in the document as

non est, unenforceable and in valid and to grant permanent injunction restraining the Defendants from encroaching or trespassing or making any

construction in the suit schedule property.

For better appreciation, few facts which are essential for the disposal of these Civil Revision Petitions are stated below:

One late Kunjan Nadar had five sons viz. (1) Ravikumar, (2) Madhukumar, (3) K.T. Dhas, (4) K.E. Kamalesh Babu (1st Plaintiff) and (5) Dr. K.

Vijayakumar (2nd Plaintiff). Since the Plaintiffs are residing in USA, they had executed a Power of Attorney in favour Dr. R. Shylaja who is the

daughter of K. Ravikumar, the brother of the Plaintiffs. The Power Agent namely Dr. R. Shylaja had filed an application in IA. No. 167/2008 in

OS. No. 99/2008 to accept the power deed and permit her to represent her principals and the same had been allowed on 28.1.2008.

Subsequently, the suit has been numbered as OS. No. 99/2008. The Petitioner herein had filed a petition in IA. No. 281/2008 to review the said

order and the same had been dismissed by the learned Principal District Munsif, Nagercoil by order dated 12.6.2008 as against which the

Petitioner has preferred CRP. No. 117/2008.

The Petitioner had filed another application in IA. No. 280/2008 to reject the plaint on the ground that the suit in OS. No. 99/2008 is filed on

identical grounds for the same relief made in OS. No. 446/2007 and the pendency of the suit in OS. No. 446/2007 has been deliberately

suppressed by the Plaintiffs and hence, the same is barred under law. Further, the Respondents/Plaintiffs have under valued the claim and proper

court fee has not been paid causing revenue loss to the State and it ought not to have been allowed u/s 25(d) and the plaint has to be rejected for

under valuation and improper payment of court fee. The court below rejected his contention and dismissed the petition, as against which the

Petitioner has filed CRP. No. 153/2009.

Mr. T. Lajapathiroy, the learned Counsel for the Petitioner would submit that Dr. R. Shylaja is not the Power Agent of the Plaintiffs and she has

no locus standi to file the suit in OS. No. 99/2008. On 29.10.2007 one Arulprakasam has filed WP. No. 9669/207 before this Court claiming to

be the Power of Attorney of K. Vijayakumar and one Stella Dhas represented as Power of Attorney of K. Kamalesh Babu in the suits in OS. No.

153/2002 and 35/2006 and in the said facts without cancelling the prior Power of Attorney, no Power could be granted to Dr. R. Shylaja and the

claim of Dr. R. Shylaja as Power of Attorney is mala fide and false. He would further submit that no opportunity was given to him before accepting

the Power of Attorney and the order passed by the learned Principal District Munsif is unsustainable.

It is seen from the counter filed by the Respondents that K. Vijayakumar (2nd Plaintiff) had appointed one Mary Stella Dhas, w/o late K.T.

Dhas (another son of late Kunjan nadar) as his Power of Attorney agent by document No. 397/2002 dated 1.6.2002 and subsequently the said

Power Deed had been can-celled and he had appointed Dr. Arul Prakasam a retired school Head Master as his Power of Attorney under Power

deed dated 11.11.2005 registered with the District Registrar on 26.4.2006. Both the principal and the Agent found it difficult, as Agent could not

travel to Nagercoil every day and supervise the property, his power was cancelled and subsequently by means of two power deeds dated

5.10.2007 and 16.11.2007 registered with the District Registrar in No. 107/2007 on 26.11.2007 the present Power of Attorney Agent Dr. R.

Shylaja has been appointed.

Like wise, the 1st Plaintiff K. Kamalesh Babu originally had appointed Mary Stella Dhas as his Power Agent vide document No. 463/1996

dated 12.8.1996 and since she could not follow up with the developments in relation to the suit property, the present Power of Attorney has been

appointed as his Power Agent on 15.10.2007 and the same is registered in Document No. 92/2007 with the District Registrar on 18.10.2007.

The previous power agents have not objected to with regard to the appointment of Dr. R. Shylaja and there is no rival power claim. It is the case

of the Respondents that they have consented to the appointment of Dr. R. Shylaja.

Further the power agents have acted in accordance with the power deeds and in the absence of any material to show or otherwise, it cannot be

presumed that the appointment of Dr. R. Shylaja is with mala fide intention. It could be seen that Mary Stella Dhas has been arrayed as the

Defendant in OS. No. 220/2008 in her personal capacity as one of the family members and accordingly, she has filed a written statement. It cannot

be said that she has done so as a Power Agent of K. Vijayakumar.

As rightly pointed out by the court below the Petitioner who is a Defendant in the suit has no locus standi to oppose any power accepted by the

court and it is a matter between the principal and the agent and the power agent and the court. The Petitioner would not be prejudiced in any

manner in the court accepting the power of attorney of the Plaintiffs to represent on behalf of them. If there is any doubt in that regard, it is for the

Respondents/Plaintiffs to clarify it at the time of trial and on the said ground the order accepting the Power of Attorney cannot be reviewed. The

court below has rightly dismissed the said petition and it does not warrant interference.

The learned Counsel for the Petitioner put forth another submission that the suit is barred under law as the suit in OS. No. 99/2008 is on the

same identical facts and reliefs that has been sought for in OS. No. 446/2007 which is still pending and therefore, the plaint is liable to be rejected.

Order 7 Rule 11(d) has limited application. For its applicability, it must be shown that the present suit is barred under law. Such a conclusion

must be drawn from the averments made in the plaint. What would be the relevant for invoking Order 7 Rule 11(d) of CPC are the averments

made in the plaint and for that purpose, there cannot be any addition or subtraction. For the purpose of invoking the said provision, no amount of

evidence can be looked into.

The suit in OS. No. 446/2007 has been filed by the Plaintiff for declaration of pathway with reference to B-Schedule property i.e. Rs. P10-

21/3 in Nagercoil Village for free ingress and egress of the Plaintiffs, their men, servants without any hindrance and for permanent injunction

restraining the Defendants 1 to 3 their men and servants from encroaching or constructing or installing any new construction within B and A

Schedule properties and mandatory injunction directing the Defendants 1 to 3 to remove TASMAC Bar and the construction of the 4th Defendant

on the face of B-Schedule property within a specified time fixed by the court failing which the permission is sought for to demolish the construction

by the Plaintiffs themselves. Whereas the present suit in OS. No. 99/2008 is filed to declare the document dated 13.2.2007 relating to the suit

property in P10-20/2, 20/3 of the Nagercoil Village as non est and unenforceable. Incidentally, it is claimed that it belongs to the Plaintiffs. Besides

that, the relief of permanent injunction restraining the Defendants from encroaching, trespassing or making any construction is sought for.

Though the properties are one and the same in those two suits, but the reliefs claimed are totally different and it cannot be said that both the

suits are identical and one and the same in relation to the facts and cause of action. Whether the reliefs claimed could be granted is essentially a

question of fact and can be gone into only at the stage of trial.

The contentions raised for rejection of the plaint in the present suit involves various questions, which could not be considered at the stage of the

proceedings under Order 7 Rule 11 of CPC and therefore, the order of the trial court dismissing the petition filed for rejection of the plaint cannot

be said to be improper or perverse.

Yet another contention was put forth by the learned Counsel for the Petitioner that the suit is undervalued and the court fee paid is not correct

and the plaint has to be rejected. The suit is filed for declaration that the deed executed by the Defendants in relation to the whole properties is non

est, unenforceable and invalid. Admittedly, the Plaintiffs are not parties to the said deed and in such case, the relief of declaration would not fall u/s

40 of the Tamil Nadu Court Fees and Suits Valuation Act. For deciding the value of the court fee payable by the Plaintiff, the averments in the

plaint alone are to be considered and in the present case, the Plaintiff has valued the suit for the purpose of court fee u/s 25(d) of the Tamil Nadu

Act 14/55.

In the cases of K. Palaniswamy and Christoper Holden Vs. S.B. Subramani and J.K. Jawarappa, and Siddha Construction (P) Ltd. Vs. M.

Shanmugam and Others, , it is categorically held by this Court that when the Plaintiffs are not parties to the main sale deed or any other deed, they

need not pay court fees u/s 40(1) of the Tamil Nadu Court Fees and Suits Valuation Act and the payment of court fee u/s 25(d) is proper.

In the light of averments made in the plaint and the petition made thereon, I am of the considered view that the trial court has rightly come to

the conclusion that the suit has been rightly valued and the court fee paid is proper. Therefore, I do not find any merit in these Civil Revision

Petitions and consequently, they are liable to be dismissed.

In the result, these Civil Revision Petitions are dismissed. No costs. Consequently, the connected MP is closed.