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2012 DIGILAW 3153 (MAD)

Sankari v. Jayalakshmi rep. by her Power Agent

2012-07-19

G.RAJASURIA

body2012
Judgment :- 1. Heard all the Advocates concerned. 2. A summation and summarisation of the germane facts, in a few broad strokes, absolutely necessary for the disposal of the second appeal, the civil revision petition and the cross objection would run thus: a) The first respondent herein/plaintiff-Jayalakshmi represented by her Power Agent-K.V.Venkatesh filed the suit O.S.No.3732 of 2008 seeking the following reliefs: To pass a judgment and decree as against the defendants - i) granting permanent injunction restraining the defendants 1 to 4 their successors, subordinates, legal heirs and representatives their men, agents, servants or anybody claiming under or through them, from interfering with the peaceful possession and enjoyment of the plaintiff's schedule mentioned property. ii) directing the defendants to pay the costs of the suit. (extracted as such) b) Written statement was filed by the appellant herein/D1. All other defendants remained exparte. c) The trial Court framed the relevant issues. During trial, on behalf of the plaintiff, her Power Agent-Venkatesh examined himself as PW1 and marked Exs.A1 to A20. On the defendants' side one K.Rajan examined himself as DW1 and marked Exs.B1 to B19. d) Ultimately the trial Court instead of disposing of the suit by deciding all the issues, did choose to give its finding on Issue No.1 relating to Power of Attorney to the effect that the Power Agent Venkatesh as per the Power Deed Ex.A11 had no power to file the fresh suit in O.S.No.3732 of 2008.; but he was authorised to appear in the suit bearing O.S.No.7747 of 2007. e) Being aggrieved by and dissatisfied with the said decision, the plaintiff preferred appeal. f) Whereupon, the appellate court, decided all the issues and ordered thus: “ LANGUAGE ” g) During the pendency of the first appeal, D1 as well as the other defendants separately filed I.As for additional evidence. But those applications were dismissed. h) D1 being aggrieved by the judgment of the appellate court in A.S.No.120 of 2010 as well as the order dismissing the I.A preferred this second appeal and the civil revision petition separately. i) The Corporation filed Cross Objection aggrieved over the said order. 3. Heard all concerned as required under law. On hearing both sides I have decided to frame the following substantial questions of law in the second appeal: 1. i) The Corporation filed Cross Objection aggrieved over the said order. 3. Heard all concerned as required under law. On hearing both sides I have decided to frame the following substantial questions of law in the second appeal: 1. Whether the first appellate court was justified in holding that the power deed Ex.A11 empowered Venkatesh to file a fresh suit in view of the clauses 2, 3, 4 and 5 contained therein? 2. Whether the first appellate court was justified in rendering its finding on issue Nos.2 and 3 formulated by the trial court even though the trial court did not decide those issues in view of having decided issue No.1 and dismissed the suit on the ground of in competency of the Power Agent to file the suit? 3. Whether there is any perversity or illegality in the judgment and decree passed by the appellate court? 4. Heard all concerned on the aforesaid substantial questions of law now framed by this court. Point No.1: 5. A plain reading of Ex.A11 would connote and denote, display and demonstrate that as per clauses 2,3, 4 and 5 of the said deed, the Power Agent Venkatesh was empowered by the principals, as many as 8 persons, even to file a fresh suit relating to the suit property. But the trial court without adverting to those clauses simply carried away by clause (1) of the Power deed as though the said Venkatesh was authorised to appear only in the then pending case, i.e., O.S.No.7747 of 2007. As such, the appellate court au fait with law and au courant with facts appropriately appreciated Ex.A11 and held that the Power Agent Venkatesh had competence to file a fresh suit. 6. At this stage, the learned counsel for D1 would submit that as per the power deed-Venkatesh was appointed as Power Agent by 8 persons including Jayalakshmi, the plaintiff. I make it clear that this is a matter relating to non-joinder of necessary parties, which the trial court has to consider on being remanded. This is having nothing to do with the competence of Venkatesh to file a fresh suit. 7. As such, the substantial question of law No.1 is decided to the effect that as per Ex.A11 the power agent Venkatesh had competence to file the fresh suit O.S.No.3732 of 2008. Point No.2: 8. This is having nothing to do with the competence of Venkatesh to file a fresh suit. 7. As such, the substantial question of law No.1 is decided to the effect that as per Ex.A11 the power agent Venkatesh had competence to file the fresh suit O.S.No.3732 of 2008. Point No.2: 8. The learned counsel for the respondent/appellant/plaintiff would pilot his argument to the effect that once the evidence are available on record, the appellate court can very well answer all the issues. 9. No doubt, trite is the proposition of law that while the trial court deciding issues, if unwittingly fails to decide specifically a particular issue and if evidence is available regarding that undecided issue, the appellate court can decide that issue also and there could be no quarrel over such a proposition. 10. However, here it is a different kettle of fish. The trial court consciously refrained from deciding the suit on merits. It concentrated only on one point about the capacity of the Power Agent Venkatesh to file the suit and on deciding that issue against the said Venkatesh, the trial court simply dismissed the suit in entirety. In such a case, the appellate court would not be justified in assuming the role of a trial court by itself and decide the entire suit for the first time and thereby deprive the aggrieved party a right of appeal. Depriving a particular party of a right of appeal, cannot be be-littled or slighted. As such, without considering this aspect, perhaps with an intention to save time, the appellate court decided the other issues, warranting interference in second appeal and accordingly, the findings of the appellate court on Issue Nos.2 and 3 are set aside and the finding of the appellate court on Issue No.1 in favour of the plaintiff is upheld and accordingly, the matter is remitted back to the trial court to decide the remaining issues, so to say, Issue Nos.2 and 3 within a period of four months from the date of receipt of a copy of this order. 11. 11. In view of the above findings, the order in C.M.P.No.87 of 2011 in A.S.No.120 of 2010 shall stand automatically set aside and the civil revision petition in CRP NPD No.3893 of 2011 shall stand allowed and D1/the revision petitioner herein is permitted to file those documents before the trial court and adduce both oral and documentary evidence. 12. Similarly the plaintiff is also given liberty to adduce additional evidence both oral and documentary. 13. The learned counsel for the Corporation would make a submission that they may be straightaway be permitted to participate in the proceedings for which the learned counsel for the plaintiff would appropriately and appositely point out that in the absence of any specific application filed in getting the exparte order as against the Corporation set aside they cannot straightaway be permitted to participate in the proceedings. 14. I could see considerable force in his submission. 15. However, the respondents 2 to 4/Cross Objectors are at liberty to file necessary application to get the exparte decree set aside and also file necessary application seeking leave to file written statement and thereafter they can participate in the proceedings by adducing evidence both oral and documentary. 16. Accordingly, the Cross Objection No.6 of 2012 filed by the Corporation is dismissed. 17. The points are decided accordingly. 18. In the result, The matter is remitted back to the trial court for deciding issue Nos.2 and 3 within a period of four months from the date of receipt of a copy of this order. CRP NPD NO.3893 of 2011is allowed and consequently, the order passed in CMP No.87 of 2011 in A.S.No.120 of 2010 is set aside. Cross Objection No.6 of 2012filed by the Corporation is dismissed with liberty to file necessary application to get the exparte decree set aside and also file necessary application seeking leave to file written statement and to participate in the proceedings. However, there shall be no order as to costs.