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Judgment
R.S. Ramanathan, J.—Defendants 1 to 5 are the revision petitioners. Respondents 1 and 2 filed the suit in O.S.No. 248 of 2010 for
declaration that the revocation deed dated 9.5.2005 executed by defendants 1 to 5 is void and non est. In the suit, the revision petitioners filed
I.A.No. 2059 of 2010 under Order VII Rule 11 to reject the plaint and that application was dismissed and aggrieved by the same, this revision is
filed.
Learned counsel for the revision petitioners Mr. R. Subramanian submitted that the suit filed by respondents 1 and 2 in O.S.No. 248 of 2010 is
a clear case of re-litigation and abuse of process of court and having regard to the allegations made in the plaint, the plaintiffs have no cause of
action and they have no right to maintain this suit and therefore, the plaint is liable to be rejected. The learned counsel further submitted that
O.S.No. 234 of 2006 on the file of the I Additional Sub Judge, Salem was filed by the first respondent herein against the fourth revision petitioner
and another seeking declaration that the cancellation deed is void, non est and unenforceable in law and for injunction and the suit was rejected by
this court by order dated 29.7.2010 in C.R.P.No. 392 of 2010 and on the same set of facts, the present suit was filed by respondents 1 and 2
herein and therefore, having regard to the judgment rendered in C.R.P.No. 392 of 2010, the present suit filed by respondents 1 and 2 is also liable
to be rejected. He relied upon the judgment reported in M.V. Jayavelu Vs. E. Umapathy, rendered by me and the judgment in The Church of
Christ Charitable Trust and Educational Charitable Society, represented by its Chairman Vs. Ponniamman Educational Trust represented by its
Chairperson/Managing Trustee, in support of his contention.
On the other hand, learned counsel for respondents 1 and 2 submitted that the Trial Court has rightly dismissed the application after relying upon
various judgments of this court holding that respondents 1 and 2 have pleaded cause of action and the case of the respondents can be considered
during trial and it cannot be rejected at the threshold and the judgment in C.R.P.No. 392 of 2010 will not apply to the facts of this case and the
parties are not bound by the said judgment and that judgment will not operate as res judicata. The learned counsel for respondents 1 and 2 also
relied upon the judgment reported in Bhau Ram Vs. Janak Singh and Others, in support of his contention that while considering the application
under Order VII Rule 11 of the Code of Civil Procedure, the court has to examine only the averments in the plaint and the plea taken by the
defendant in the written statement cannot be taken into consideration. He, therefore, submitted that having regard to the plaint allegations, it cannot
be rejected and the court cannot decide at this stage as to whether the plaintiffs are entitled to the relief or not.
To appreciate the contentions of both the parties, we will have to see the pleadings. As rightly submitted by the learned counsel for respondents
1 and 2, while considering the application under Order VII Rule 11, the court has to look into only the allegations made in the plaint to arrive at a
conclusion whether the plaint can be rejected or not and the defence of the defendant or the pleas taken in the written statement cannot be taken
into consideration. It is stated by respondents 1 and 2/plaintiffs that the revision petitioners constituted the first plaintiff as their power of attorney
by means of a registered deed dated 29.8.2003 authorising the power agent to administer the suit property as well as day to day administration of
the petrol bunk put up in the property and the revision petitioners also appointed the second plaintiff, who is the daughter of the first plaintiff and
wife of the second petitioner herein as licensee to conduct the trade on behalf of Indian Oil Corporation and by virtue of the power given in favour
of the first plaintiff, the first respondent entered into an agreement of sale with Indian Oil Corporation granting the land belonging to the revision
petitioners on lease and on that lease, the Indian Oil Corporation appointed the second respondent/plaintiff as a dealer to run retail outlet and as
per the power, the first plaintiff viz., the first respondent herein also entered into an agreement of sale with the second plaintiff to sell the suit
property and the revision petitioners, knowing all these facts, without any reason and without informing the first plaintiff, cancelled the power
granted in favour of the first plaintiff by executing a revocation deed on 9.5.2005 and hence, the revocation deed is void and non est and has to be
declared as such. It is the further contention that the power given to the first respondent is not an ordinary power and it is a power coupled with
interest and therefore, it cannot be revoked and therefore, the revocation is invalid. It is further alleged in the plaint that u/s 31 of the Specific Relief
Act, if a void instrument is left outstanding and the person has got a reasonable apprehension that the said instrument may cause him serious injury,
he has a right to get such instrument adjudged as void and there is no need to cancel the document and therefore, the suit was filed for declaration
that the document of revocation deed dated 9.5.2005 executed by the defendants is void and non-est.
To appreciate the plaint allegations, we will have to see the contents of the power of attorney executed by the revision petitioners in favour of
the first respondent on 29.8.2003. A reading of the said power document makes it clear that the first respondent/first plaintiff was appointed as
agent of the revision petitioners to maintain and look after their property and to let out the property and collect rent and to execute gift settlement
or release deed or enter into sale agreement and to execute sale deed in respect of the property belonging to the revision petitioners. In short, it is
an absolute power giving all the rights to the power agent to deal with the property belonging to the revision petitioners. As per section 201 of the
Contract Act, an agency is terminated by the principal revoking the authority and as per section 202, where the agent has any interest in the
property which forms the subject matter of the agency, the agency cannot in the absence of any express contract, be terminated to the breach of
such interest. Therefore, as per section 202 of the Contract Act, agency coupled with interest cannot be terminated to the breach of such interest
and the agency must have an interest in the property which forms the subject matter of the agency. Only in such cases, the agency becomes agency
coupled with interest and such agency cannot be revoked to the breach of such interest. In this case, a reading of the power of attorney executed
by the revision petitioners appointing the first respondent/first plaintiff as an agent cannot be termed as agency coupled with interest. As stated
supra, the agent viz., the first respondent/first plaintiff was given absolute power to deal with the property in the manner he likes and no interest in
the subject matter of the agency was given to the agent to make the agency coupled with interest. As per the power granted in favour of the first
respondent under the power of attorney, the first respondent entered into a lease agreement with Indian Oil Corporation and delivered possession
of the property to the lessee and thereafter, the second respondent was appointed as dealer of Indian Oil Corporation to operate the retail outlet of
their products and none of these facts can be construed as conferring of interest in the subject matter of the agency on the agent. This has been
made clear in the Illustration (a) to Section 202 and it is as follows:-
A gives authority to B to sell A''s land, and to pay himself, out of the proceeds, the debts due to him from A. A cannot revoke this authority, nor
can it be terminated by his insanity or death.
Further, the entering into an agreement by the first respondent with the second respondent before termination of agency also cannot be
construed as an interest accrued under the agency and that is only a power given to the agent to enter into an agreement of sale or to sell the
property and that cannot be construed as an interest in the subject matter of agency. Therefore, when the agency is a power and a simple one and
not coupled with interest as per section 202 of the Indian Contract Act, such agency can be revoked by the principal and as per section 205, even
in case where the agency should be continued for any period of time and the agency is revoked by the principal before expiry of that time, the
remedy available to the agent is to apply for compensation for the earlier revocation of the agency without sufficient cause and as per section 206
of the Indian Contract Act, reasonable notice must be given of such revocation failing which damages can be claimed by the affected party.
Therefore, having regard to the recitals in the power of attorney deed, it is only an agency/power and simple one which is capable of revocation
by the principal without any notice and therefore, the prayer in the suit for a declaration that the revocation is void and non est is a clear abuse of
process of court.
Learned counsel for respondents 1 and 2 submitted that after the execution of the power dated 29.8.2003, revision petitioners 1 to 4 and others
executed an undertaking permitting the first respondent/first plaintiff to use the subject matter of the property covered under the power of attorney
for his business and out of the profit pay Rs. 10,000/- to revision petitioners 1 to 4 and others and settle the balance amount towards loan payable
by them to the first respondent and therefore, the undertaking given by revision petitioners 1 to 4 on 23.12.2003 coupled with the power of
attorney would amount to agency coupled with interest and therefore, the agency cannot be terminated by the revision petitioners. The learned
counsel also submitted that the revision petitioners also admitted the grant of lease by the first respondent/first plaintiff in favour of Indian Oil
Corporation and admitted that the first respondent herein was the administrator and proprietor of the property and he has got all the rights to deal
with the property and also sworn to an affidavit to that effect on 22.11.2004 and the second petitioner executed a mortgage deed and permitted
the first respondent to sell the property and discharge the mortgage amount and a similar mortgage deed was executed by the fourth petitioner on
10.4.2005 and these documents also would prove that the agency was coupled with interest and cannot be revoked.
In the plaint, there was no reference to the mortgage deeds executed by second and fourth petitioner on 10.4.2005 and there is no reference to
the receipt given by the 5th petitioner for having agreed to sell the property to the second respondent herein and to discharge the loan out of the
sale proceeds. Further, the execution of the sale agreement and the mortgage deeds cannot make the power of attorney as agency coupled with
interest. Further, as per the judgment reported in The Church of Christ Charitable Trust and Educational Charitable Society, represented by its
Chairman Vs. Ponniamman Educational Trust represented by its Chairperson/Managing Trustee, , when such documents are not mentioned in the
plaint and those documents were also not filed along with the plaint, such documents cannot be looked into. Further, I had an occasion to deal with
the abuse of process of court in the judgment reported in M.V. Jayavelu Vs. E. Umapathy, , wherein, after relying upon the judgment of the
Honourable Supreme Court reported in Azhar Hussain Vs. Rajiv Gandhi, , I held as follows:-
The provisions of Order 7 Rule 11 are not exhaustive and the Court has got inherent powers to see that the vexatious litigations are not allowed to
take or consume the time of the Court. In appropriate cases, directions can be given by this Court as well as the Court in which the suit is filed not
to entertain the suit, if on reading the allegations in the plaint it reveals that the same is abuse of process of law.
In the judgment reported in 1986 (SUPP) SCC 315, the Honourable Supreme Court held as follows:-
Learned Counsel for the petitioner has next argued that in any event the powers to reject an election petition summarily under the provisions of the
CPC should not be exercised at the threshold. In substances, the argument is that the Court must proceed with the trial record the evidence, and
only after the trial of the election petition is concluded that the powers under the CPC for dealing appropriately with the defective petition which
does not disclose cause of action should be exercised. With respect to the learned counsel, it is an argument which it is difficult to comprehend.
The whole purpose of conferment of such powers is to ensure that a litigation which is meaningless and bound to prove abortive should not be
permitted to occupy the time of the Court and exercise the mind of the respondent. The word of Damocles need not be kept handing over his head
unnecessarily without point or purpose. Even in an ordinary civil litigation the court readily exercises the power to reject a plaint if it does not
disclose any cause of action or the power to direct the concerned party to strike out unnecessary scandalous, frivolous or vexatious parts of the
pleadings or such pleadings which are likely to cause embarrassment or delay the fair trial of the action or which is otherwise an abuse of the
process of law
Therefore, according to me, the plaintiff has no right to question the cancellation of the power of attorney executed by the revision petitioners as the
power of attorney is not coupled with interest and even assuming that the power of attorney has been partly exercised, that will not give rise to any
cause of action to sue for declaration that the revocation deed is void and the remedy available to the agent is to sue for damages. Hence, the
plaintiff has no cause of action to file a suit seeking the relief of declaration that the revocation deed is void and the court below, without
appreciating the same, erred in dismissing the application filed by the revision petitioners. In similar circumstances, this court rejected the plaint in
the judgment rendered in C.R.P.(PD) No. 392 of 2010. Hence, the order of the court below is liable to be set aside and it is set aside.
In the result, the revision is allowed. The suit in O.S.No. 248 of 2010 on the file of the I Additional Judge, Salem is rejected. No costs. The
connected miscellaneous petition is closed.