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2018 DIGILAW 3296 (MAD)

P. G. Venugopal v. Nafeez Zawahir

2018-09-26

M.SATHYANARAYANAN

body2018
JUDGMENT M. SATHYANARAYANAN, J. 1. By consent, the Civil Revision petition is taken up for final disposal. For the sake of convenience, this Court adopts the nomenclature/array of parties in O.S.No.149 of 2009 on the file of the Court of Subordinate Judge, Poonamallee. 2. The revision petitioner is the defendant in O.S.No.149/2009 on the file of the Court of the Subordinate Judge, Poonamallee. The said suit was filed by the respondent/plaintiff, praying for the judgment and decree for specific performance of the contract and other consequential directions. The revision petitioner/defendant filed I.A.No.214/2012 under Order 11 read with Section 151 CPC, to reject the plaint and vide impugned fair and decreetal order dated 08.03.2012, the said petition came to be dismissed and aggrieved by the same, he has filed this Civil Revision Petition. 3. The revision petitioner/defendant in the affidavit filed in support of the petition in I.A.No.214 of 2012 would aver among other things that the plaintiff was his erstwhile so called Power of Attorney and now filed the present Suit through his power agent, Mr. M. Arulsamy and since the Agent cannot forward his power or duties to any other agent, in whole or in part, without the express authority of the Principal or authority derived from the Statute, the Suit filed through the said Power of Attorney is not maintainable and also took a stand that he has also cancelled his Power of Attorney dated 21.04.1999 through registered document bearing Doc.No.429 of 2004 and would further aver that the defendant became the owner of the Suit property by virtue of the registered Sale Deed dated 29.05.2008, executed by the Tamil Nadu Housing Board in his favour and as such, no right can be claimed through the earlier power of Attorney dated 21.04.1999 and since he became an absolute owner on 29.05.2008, he cannot enter into any agreement at an anterior point of time to convey the suit property and therefore, prays for rejection of the suit. 4. The said application was opposed by the respondent/Plaintiff by contending that the said application is per se not maintainable in law for the reason that the entire plaint allegation have to be read and taken as a whole and since there is a cause of action and that the suit also came to be filed within the period of limitation, the petition for rejection of plaint is liable to be dismissed. 5. The learned Judge has considered the averments made in the affidavit filed in support of the petition, counter statement and has recorded the fact that the petition in I.A.No.502 of 2012 filed by the respondent/Plaintiff through his power agent to permit a fresh power of attorney and take back the earlier power of attorney, came to be dismissed, on the ground that the execution was not proper as the Principal was residing in U.S.A on the date of execution of the Power of Attorney and in so far the merits of the application filed for rejection of the plaint concerned, the learned Judge has placed reliance on the decision of this Court [Thangvelu and 2 others Vs. R.Natesan and 2 others, (2012) 4 CTC 294 ] and held that the execution of the Power of Attorney and its validity can be gone into only during trial and citing the said reason, has dismissed the said petition, vide impugned fair and final order dated 04.03.2013 and challenging the said order, the present revision is filed. 6. The learned counsel appearing for the revision petitioner would contend that in the light of the dismissal of I.A.502 of 2012, the present power of attorney cannot be prosecuted and further contended that since he became the owner of the property only on 29.05.2008, he cannot have any right at the anterior point of time to convey the said property and since the said materials are available on the face of the record, the plaint ought to have been rejected. 7. Per contra, the learned counsel appearing for the respondent/Plaintiff would contend that the points urged by the learned counsel for the revision petitioner revolve around the disputed question of facts and law and it also requires evidences and therefore, the Lower Court was right in dismissing the said petition. 8. This Court has carefully considered the rival submissions and also perused the materials placed before it. 9. The respondent/plaintiff, aggrieved by the dismissal of the I.A.No.502 of 2012, has filed CRP.No.1860 of 2013 before this Court and vide order dated 30.08.2018, this Court allowed the said revision and also granted liberty to the defendant/plaintiff to put forth his defense in that regard at an appropriate stage. 10. 9. The respondent/plaintiff, aggrieved by the dismissal of the I.A.No.502 of 2012, has filed CRP.No.1860 of 2013 before this Court and vide order dated 30.08.2018, this Court allowed the said revision and also granted liberty to the defendant/plaintiff to put forth his defense in that regard at an appropriate stage. 10. The issue whether the validity of the earlier power of attorney and the alleged subsequent acquirement of title in respect of the suit property by the revision petitioner/defendant, in the considered opinion of this court, is a disputed question of law and facts. It is a well settled position of law that once plaintiff has pleaded the cause of action in the plaint, the question/issue as to whether he has cause of action to file a suit for the relief sought for by him, is to be determined on the basis of the materials which may be produced by the parties at an appropriate stage in suit and for the limited purpose of determination, whether, the plaint is liable to be rejected under Order 7 Rule 1, the plaint averments have to be looked into and so long as the claim of the plaintiff shows some cause of action, it cannot be rejected. 11. In the considered opinion of this Court, the Lower Court has rightly taken note of the said legal position and dismissed the petition. In the considered opinion of this Court, the impugned order cannot be said to be vitiated on the count of error apparent on the materials placed on record. 12. In the result, the Civil Revision Petition is dismissed. No costs. Consequently, connected miscellaneous petition is closed.