Between vs Nethinti Appanna
2023 Latest Caselaw 3860 AP

      HIGH COURT OF ANDHRA PRADESH AT AMARAVATI

                              ****

APPEAL SUIT No.67 OF 2022 Between:

Andhra Pradesh Electrical & Equipment Co.Ltd., (APEEC) (Prop: Electric Construction & Equipment Co.Ltd.) (name changed to M/s.ECE Industries Limited On 05.06.1987), Company incorporated in the Companies Act, 1956 with its Registered Office at ECE House, 280A, Kasturba Gandhi Marg, New Delhi-11001 and Local Office at Birla Junction, NH-5 Road, Jyothi Nagar, Visakhapatnam-530 007, represented by its authorized Signatory Mr. R. Mohan Reddy, S/o late R.P. Reddy, Hindu, aged 67 years, Ashok Marg, Sanathan Nagar, Hyderabad and another. .... Appellants/Plaintiffs.

Versus

Nethinti Appanna S/o late Ramaiah, aged 50 years, Resident of Door No.11-9-12, Sri Kurmam Madhura Manguvaripeta, Srikakulam, Srikakulam Town-2 and others. ... Respondents/Defendants.

DATE OF JUDGMENT PRONOUNCED :             09.08.2023

SUBMITTED FOR APPROVAL:


        HON'BLE SRI JUSTICE A.V.RAVINDRA BABU


1. Whether Reporters of Local Newspapers
   may be allowed to see the Judgment?                 Yes/No

2. Whether the copy of Judgment may be
   marked to Law Reporters/Journals?                   Yes/No

3. Whether His Lordship wish to see the
   Fair copy of the Judgment?                          Yes/No


                                ______________________
                                  A.V.RAVINDRA BABU, J




       * HON'BLE SRI JUSTICE A.V.RAVINDRA BABU

                 + APPEAL SUIT No.67 OF 2022


                          % 09.08.2023
# Between:

Andhra Pradesh Electrical & Equipment Co.Ltd., (APEEC) (Prop: Electric Construction & Equipment Co.Ltd.) (name changed to M/s.ECE Industries Limited On 05.06.1987), Company incorporated in the Companies Act, 1956 with its Registered Office at ECE House, 280A, Kasturba Gandhi Marg, New Delhi-11001 and Local Office at Birla Junction, NH-5 Road, Jyothi Nagar, Visakhapatnam-530 007, represented by its authorized Signatory Mr. R. Mohan Reddy, S/o late R.P. Reddy, Hindu, aged 67 years, Ashok Marg, Sanathan Nagar, Hyderabad and another. .... Appellants/Plaintiffs.

Versus

Nethinti Appanna S/o late Ramaiah, aged 50 years, Resident of Door No.11-9-12, Sri Kurmam Madhura Manguvaripeta, Srikakulam, Srikakulam Town-2 and others. ... Respondents/Defendants.

! Counsel for the Appellant : Sri V. Ramesh, representing Sri A. Chandra Sekher.

^ Counsel for the Respondent : Smt. S.V. Indira. < Gist:

> Head Note:

? Cases referred:

AIR 1917 Cal 436 AIR 1936 Cal 650 AIR 1990 SC 673

This Court made the following:

THE HON'BLE SRI JUSTICE A.V. RAVINDRA BABU

Appeal Suit No.67 OF 2022

J U D G M E N T:-

The order and decree, dated 23.11.2021 in O.S.No.804 of

2015, on the file of XI Additional District Judge, Visakhapatnam,

is under challenge in the present appeal.

2) The appellants are the plaintiffs before the learned

XI Additional District Judge, Visakhapatnam. They filed a suit

with a prayer to grant declaration that four General Power of

Attorneys bearing Document Nos.643/2015, 644/2015,

645/2015 and 646/2015 are vitiated by fraud, invalid/nonest

and not binding on the plaintiffs and for consequential

permanent injunction restraining the defendant Nos.1 to 8 and

also the District Registrar and Sub-Registrar i.e., defendant

Nos.9 and 10 from registering any documents with the aid of the

said four false General Power of Attorneys and further for a

permanent injunction restraining the defendant Nos.1 to 8 from

interfering with the plaintiffs' possession and enjoyment of the

plaint schedule property.

3) For the sake of decision in this appeal, it is pertinent

to extract here the substance of the case of the plaintiffs,

according to the plaint averments.

4) The first plaintiff M/s.ECE Industries Limited,

represented by its Authorized Signatory, Sri Deepak Kumar

Tiwary. The second plaintiff namely Bhukhand Developers, LLP,

represented by its Authorized Signatory, Sri R. Mohan Reddy, is

added as per the order in I.A.No.371 of 2020, dated 28.01.2021

before the learned XI Additional District Judge, Visakhapatnam.

Hence, the case of the plaintiffs, in brief, is that the first plaintiff

was the absolute owner of Ac.21-272/3 cents of land situated in

villages of Marripalem and Kapparada, Visakhapatnam District.

It was purchased by the first plaintiff Company from the original

land owners more than five decades ago in 1962, 1963, 1965,

2009 and 2011 through various registered sale deeds in

different survey numbers. Out of the same, an extent of Ac.2-30

cents was initially on a long lease since 1960's with the first

plaintiff and it was purchased by the first plaintiff through four

sale deeds in the year 2009 (Ac.0-15 cents in Survey No.59/3P)

and in 2011 (Ac.0-15 cents in Survey No.59/3P, Ac.1-00 cents

in Survey No.59/3P and Ac.1-00 cents in Survey No.66/1).

Since then, the first plaintiff has been in possession and

enjoyment of the property. It established an industry in the said

site by constructing factory sheds for manufacture of electric

transformer, etc., in the name and style of "E.C.E. Industries

Limited". Originally, the Andhra Pradesh Electrical and

Equipment Company Limited was the name of the unit and the

proprietor of the same was Electric Construction and Equipment

Company Limited. Later, the name was changed into M/s.ECE

Industries Limited on 05.06.1987. The entire site of the first

plaintiff is bounded by a big wall. The first plaintiff filed

necessary documents to show his possession. In the year, 2004

and 2006, the first plaintiff decided to alienate Ac.11-45 cents

out of various extent of land owned by them, to a company

called M/s. Lakshmi Techno Solutions (P) Limited under an

agreement of sale-cum-G.P.A. and ultimately in the year 2013

and 2014, the first plaintiff executed sale deeds in favour of the

second plaintiff conveying an extent of Ac.10-97 cents. After

sale of the land by the first plaintiff to the said company, the

second plaintiff applied to the Government authorities for

conversation of the land from industrial to partly residential and

partly commercial use. The Government issued G.O.Ms.No.249,

dated 11.12.2014. As on the date, the first plaintiff is an

absolute possession and enjoyment of Ac.10-30 2/3 cents after

the sale of land as mentioned above to the second plaintiff.

5) The defendant Nos.1 to 8 launched a diabolical plan

to grab the property belonged to plaintiffs taking advantage of

the amendment to the Stamp Act in the State of Andhra

Pradesh. The defendants falsely and fraudulently created and

got registered four registered General Power of Attorneys

bearing document Nos.643/2015, 644/2015, 645/2015 and

646/2015, dated 23.02.2015. They are all shame and fake

documents. The extents mentioned in the G.P.As., did not exist

on the ground more so in the survey numbers mentioned. The

so-called link documents mentioned in the G.P.As., dealt with

Ac.2-70 cents whereas more than about 9 times, the said land is

mentioned in the G.P.As. for about Ac.22-22 cents. They does

not relates to any land that exists. The parties who are

mentioned as the executants are not the actual executants. The

dates of two link documents i.e., 2639/1963 and 2640/1963 are

all false. All the four G.P.As. are deliberately fabricated and

forged for making unlawful gain for Defendant Nos.1 to 8. They

are not binding on the plaintiffs but they have a potential to

cause loss to the plaintiffs as they are being acted upon by the

defendants. The plaintiffs gave complaints to the higher

authorities in the Registration Department and also to the

police. The District Registrar initiated enquiry and taken action

also. So, there is an impending threat to the title and possession

of the plaintiffs from Defendant Nos.1 to 8. Under the guise of

fabricated General Power of Attorneys, they are attempting to

enter into the property. Hence, the suit for declaration and

consequential permanent injunction and further for permanent

injunction to protect the possession.

6) The material available on record shows that when

the matter was coming for evidence, during the course of trial, a

memo was filed on behalf of the defendants stating that the

defendant Nos.4, 5 and 7 died. In the said memo, there was a

prayer that the suit becomes infructuous and not entertainable

and maintainable on account of the death of principal and some

Agents. The plaintiffs before the learned XI Additional District

Judge, Visakhapatnam, filed objections opposing the prayer. It

appears that the learned XI Additional District Judge,

Visakhapatnam proceeded to adjudicate the memo, basing on

the contents of the memo and objections filed. Both sides

canvassed arguments and ultimately the learned XI Additional

District Judge, Visakhapatnam, dismissed the suit as become

infructuous on account of the death of defendant Nos.4, 5 and 7.

Challenging the same, the plaintiffs filed the present appeal.

7) Now, the points that arise for consideration are as

follows:

(1) Whether the impugned order-cum-decree, dated 23.11.2021 holding that the suit filed by the plaintiffs becomes infructuous due to death of the Defendant Nos.4, 5 and 7, as such, dismissing the suit is tenable under law and facts?

(2) Whether there are any grounds to interfere with the impugned order?

Point Nos.1 and 2:

8) Sri V. Ramesh, learned counsel, representing the

learned counsel for the appellants Sri A. Chandra Sekhar, would

contend that the suit filed by the plaintiffs is a comprehensive

one. When they have sought for declaration that the impugned

G.P.As. are nonest under law, vitiated by fraud and invalid

documents and consequential permanent injunction to restrain

the defendant Nos.1 to 8 to execute any documents on the

strength of the G.P.As., and further permanent injunction as

against Defendant Nos.1 to 8 to protect their possession, the

suit will not become infructuous merely on account of the death

of defendant Nos.4, 5 and 7. He would submit that there are

three prayers in the plaint. The reliefs (a) and (b) in the prayer

are declaration and consequential injunction restraining the

defendant Nos.1 to 8 and also defendant Nos.9 and 10 from

registering any documents. The relief (c) in the prayer is to

decree the suit for permanent injunction to protect the

possession. The relief (c) has nothing to do with the prayers (a)

and (b). It has nothing to do with the relief of declaration.

Relief (b) is only a consequential relief to (a). The learned XI

Additional District Judge, Visakhapatnam delivered a perverse

order by misinterpreting as if 4th defendant is one of the

executants and that Defendant No.5 and 7 are the G.P.A.

holders. These findings are contrary to the contents of the

G.P.As. According to the impugned documents whose validity

was questioned by the plaintiffs before the learned XI Additional

District Judge, Visakhapatnam, the G.P.As., were executed in

the name of defendant Nos.1, 2, 3 and 4. Executants were

defendant Nos.5 to 8. Therefore, the findings of the learned XI

Additional District Judge, Visakhapatnam, are not at all tenable.

Even otherwise, the learned XI Additional District Judge,

Visakhapatnam did not look into the provisions of Order XXII of

the Code of Civil Procedure. When some of the plaintiffs or some

of the defendants died during the pendency of the suit, the

cause of action would continue, if there are surviving plaintiffs or

defendants. The learned XI Additional District Judge,

Visakhapatnam, misinterpreted the decisions cited by the

learned counsel for the plaintiffs. Insofar as relief of declaration

and consequential permanent injunction, the right to sue

continue and the relief of permanent injunction to protect

possession is an independent relief which is not consequential to

relief (a) and (b). At any rate, the order delivered by the learned

XI Additional District Judge, Visakhapatnam, dismissing the suit

as infructuous is not at all sustainable under law and facts, as

such, it is liable to be set aside.

9) Smt. S.V. Indira, learned counsel for the contesting

respondents, would contend that the moment that one of the

parties to the G.P.As. were expired, automatically G.P.As. shall

stands cancelled. The plaintiffs wanted to continue in the

infructuous suit before the learned XI Additional District Judge,

Visakhapatnam. For the acts done by the G.P.As., their legal

heirs were not liable, as such, there is no need or necessity to

bring the legal representatives on record. The learned XI

Additional District Judge, Visakhapatnam with proper valid

reasons held that the suit becomes infructuous, as such, the

appeal is liable to be dismissed.

10) Firstly, it is pertinent to look into the contents of the

impugned G.P.As., which were sought to be declared as vitiated

by fraud, nonest and invalid under law. As seen from the copies

of G.P.As., the General Power of Attorney bearing Nos.643/2015

it was said to be executed in the name of Nethinti Appanna,

Aarangi Chakravarthi, Bagadi Venkata Ramana Murthy and

Gandi Radha Krishna. It was said to be executed by Nethinti

Chenchu Naidu, Aarangi Hemalatha, Bagadi Lakshmi Narayana

and Gandi Demudu. Same is the situation in respect of the

other G.P.As., bearing Nos.644/2015, 645/2015 and 646/2015.

Hence, they runs to the effect that G.P.A. Holders were Nethinti

Appanna, Aarangi Chakravarthi, Bagadi Venkata Ramana Murthy

and Gandi Radha Krishna, who are defendant Nos.1 to 4. They

runs that executants are Nethinti Chenchu Naidu, Aarangi

Hemalatha, Bagadi Lakshmi Narayana and Gandi Demudu, who

are defendant Nos.5 to 8.

11) The substance of the alleged authorization under the

impugned G.P.As. is that the G.P.A. Holders are authorized to

deal with the property mentioned in the G.P.As. including to sell

away the property by executing agreement of sales, sale deeds

and also to receive advances and to take necessary steps before

the Registration Departments, etc. The contention of the

plaintiffs is that the defendant Nos.1 to 8 brought into existence

these impugned documents though the plaintiffs are in

possession and enjoyment of the schedule property.

Admittedly, the relief (a) and (b) in the plaint prayer are

interlinked with each other. They are relief of declaration and

consequential permanent injunction. The relief (c) in the prayer

of the plaint is to grant a permanent injunction in favour of the

plaintiffs against the defendants restraining them from

interfering with their possession.

12) The learned XI Additional District Judge,

Visakhapatnam at para No.5 of the impugned order made some

findings as if out of four executants of the four registered

G.P.As., dated 23.02.2015, one of the executants Gandhi Radha

Krishna, S/o Appala Naidu, further the G.P.A. Holders 1 and 3

Nethinti Chenchu Naidu, S/o late Ramaiah and Bagadi Lakshmi

Narayana, S/o late Neelaiah died on 16.05.2021, 25.12.2020

and 22.11.2016 respectively. As this Court already pointed out

by looking into the contents of the impugned documents, the

defendant Nos.1 to 4 were said to be the G.P.A. Holders and

defendant Nos.5 to 8 were said to be the executants. So, the

finding of fact recorded by the learned XI Additional District

Judge, Visakhapatnam as if Gandi Radha Krishna was one of the

executants of the documents and further Nethinti Chenchu

Naidu and Bandi Lakshminarayana were the G.P.A. Holders is

nothing but contrary to the contents of the impugned

documents. It appears that the learned XI Additional District

Judge, Visakhapatnam did not comprehend the contents of the

impugned documents. But the fact remained is that Gandi Radha

Krishna was said to be one of the G.P.A. Holders, but not the

executant and further Nethinti Chenchu Naidu and Bandi

Lakshminarayana were said to be the executants, but not G.P.A.

Holders. The observations made by the learned XI Additional

District Judge, Visakhapatnam in this regard are not at all

tenable.

13) Before the learned XI Additional District Judge,

Visakhapatnam, the learned counsel for the plaintiffs sought to

rely upon the decision of Re Sital Prasad and others

Insolvents, Badrinarain Agarwalla vs. Raja Brijnarain Roy

and another1 relying upon Section 201 of the Contract Act and

Monindra Lal Chatterjee vs. Hari Pada Ghose and others2

and canvassed a contention that when there were several

executants of G.P.As. authorizing an Agent to took charge of

some matters, the death of one of the principal, automatically

does not terminate the authority of the Agent. On the other

hand, the learned XI Additional District Judge, Visakhapatnam

placed reliance on Southern Roadways Ltd., Madurai,

represented by its Secretary vs. S.M. Krishnan3 cited by the

learned counsel for the defendants.

14) As seen from Section 201 of the Indian Contract Act,

1872, it deals with termination of agency. It runs as follows:

201. Termination of agency.--An agency is terminated by the principal revoking his authority, or by the agent renouncing the business of the agency; or by the business of the agency being completed; or by either the principal or agent dying or becoming of unsound mind; or by the principal being adjudicated an insolvent under the provisions of any Act for the time being in force for the relief of insolvent debtors.

AIR 1917 Cal 436

AIR 1936 Cal 650

AIR 1990 SC 673

15) Here the fact remained is that the 4th defendant was

alleged to be one of the G.P.A. Holders who died during the

pendency of the suit. Defendant Nos.5 and 7 were alleged to be

some of the executants of the G.P.As. jointly along with

defendant Nos.6 and 8. As seen from the decision of Southern

Roadways Limited case (3 supra), it was relied upon by the

learned counsel for the defendants before the learned XI

Additional District Judge, Visakhapatnam. It has nothing to do

with the death of either the executants or the Agents. It deals

with a situation that the revocation of agency by the principal

immediately terminates the agent's actual authority to act for

the principal unless the agent's author is coupled with an

interest as envisaged under Section 202 of the Act. In my

considered view, it has nothing to do with the facts and

circumstances on hand.

16) Turning to the decision of Badrinarain Agarwalla's

case (1 supra) cited by the learned counsel for the plaintiffs

before the learned XI Additional District Judge, Visakhapatnam,

there were three principals and they executed joint power of

attorney. The facts were that three brothers executed a joint

power of attorney in favour of the agent i.e., fourth brother and

authorized him to borrow the money on their behalf to mortgage

their joint properties. Subsequently, one of the executants died

without issue. After his death, a mortgage was executed by

fourth brother and second brother on their own behalf and by

the fourth brother as power of attorney holder of first brother.

Later, a second mortgage was executed for the same properties

by the fourth brother on his own behalf and as attorney for the

second brother and the first brother. Later, a third mortgage of

the same properties was executed by the fourth brother on his

own behalf and as attorney for the first brother. The fourth

brother further executed the same as guardian of the minor

sons of the second brother who died after the execution of the

second mortgage. Under those circumstances, the Calcutta High

Court held that the intention of the parties was that the power of

attorney should continue as long as the property remained

undivided, and the deaths of one of the principals or agent did

not revoke the power of attorney.

17) Turning to the decision of Badrinarain Agarwalla's

case (1 supra) wherein the High Court of Calcutta dealing with

the power of the principal and agent and by looking into Section

201 of the Indian Contract Act extracted the observations of the

Madras High Court in 35 MLJ 294 as follows:

We cannot consequently hold as an inflexible rule of law that whenever two principals appoint an agent to take charge of some matter in which they are jointly interested, the death of one terminates the authority of

the agent not merely as regards the deceased, but also as regards the remaining principal. We have in each case to determine the true intention of the parties to the contract, from the terms thereof and from the surrounding circumstances.

18) In my considered view, the decision cited by the

learned counsel for the plaintiffs before the learned XI Additional

District Judge, Visakhapatnam i.e., Badrinarain Agarwalla (1

supra) and Monindra Lal Chatterjee (2 supra) had some relation

to deal with an aspect as to what is to be done when there were

several executants of G.P.As., and an agent out of whom some

of the executants died. In my considered view, the learned XI

Additional District Judge, Visakhapatnam, did not deal with the

decisions cited by both sides properly. Southern Roadways

Limited's case (3 supra) has nothing to deal with the situation

canvassed before the learned XI Additional District Judge,

Visakhapatnam. Apart from the above, even in the three

decisions i.e., Badrinarain Agarwalla (1 supra), Monindra Lal

Chatterjee (2 supra) and Southern Roadways Limited's case (3

supra), the validity, legality or otherwise of the General Power of

Attorneys were not under challenge.

19) Now, the fact remained is that defendant Nos.5 to 8

allegedly executed G.P.As. in the capacity of principals in favour

of defendant Nos.1 to 4 showing them as agents to deal with the

immovable property. Those documents were challenged by the

plaintiffs as vitiated on account of the fraud and nonest in the

eye of law. It is to be noticed that the relief of declaration

sought for by the plaintiffs is relating to a right and legal

character. According to the provisions of Order XXII Rule 1 of

C.P.C., if the right to sue continues, the death of one of the

parties will not abate the suit. Further according to the Order

XXII Rule 2 of C.P.C., where there are several plaintiffs and

several defendants and one of them died and the right to sue

survives to the surviving plaintiff or plaintiffs alone, or against

the surviving defendant or defendants alone, the suit shall be

proceeded with at the instance of the surviving plaintiff or

plaintiffs or against the surviving defendant or defendants.

There is no dispute that the plaintiffs before the learned XI

Additional District Judge, Visakhapatnam agitated that the fraud

played by them still survives. Admittedly, defendant Nos.4, 5

and 7 died during the pendency of the suit, but, here is a case

that defendant Nos.1 to 3 were said to be the agents according

to the impugned documents and Defendant Nos.5 and 6 were

said to be the principals. Therefore, the defendant Nos.1 to 3 as

alleged agents and defendant Nos.5 and 6 as alleged principals

are still alive. The nature of relief sought for by the plaintiffs is

to declare these impugned documents as vitiated by fraud. The

findings of the learned XI Additional District Judge,

Visakhapatnam is that on account of death of 4th defendant, one

of the executants and defendant Nos.5 and 7 some of the G.P.A.

Holders, the suit becomes infructuous. The finding that the

defendant No.4 was one of the executants of four G.P.As and

further finding that defendant No.5 and defendant No.7 were

G.P.A. Holders is against the contents of the impugned

documents.

20) It is to be noticed that the purported authorization

under the impugned documents was also authorizing the agents

to sell away the property. Hence, if such authorization was

carried into fact, there would have been creation of third party

interest and rights in favour of the third parties. Even if there

was termination of authorization given to the defendant No.4 by

Defendant Nos.5 and 7 on account of the death of defendant

No.4 as well as defendant Nos.5 and 7 from the date of

respective deaths, it will not make the suit infructuous. In other

words, the termination of the agency on account of the death

would come to effect only from the date of death and it will not

go back to the date of disputed documents. The death of the

parties as above would not perpetuate the transactions if any

done by the agent as legal. The relief sought for by the plaintiffs

is to brand the impugned documents as vitiated by fraud. If the

analogy of the learned XI Additional District Judge,

Visakhapatnam, that the suit becomes infructuous is accepted,

plaintiffs would be remediless. In the peculiar facts and

circumstances, the acts done by the agents if any pursuant to

the authorization under the purported G.P.As., cannot be

perpetuated and cannot be legalized forever by holding that the

suit filed by the plaintiffs becomes infructuous. In my considered

view, the learned XI Additional District Judge, Visakhapatnam,

did not comprehend the facts in accordance with law. Apart from

this, the relief sought for by the plaintiffs in the prayer relief (c)

seeking a permanent injunction against the defendants to

protect their possession is an independent one. The plaintiffs

paid the Court Fee for the relief (a) and (b) together as it is a

declaration and consequential permanent injunction. The

plaintiffs valued the relief (c) independently and paid the Court

Fee. Viewed from any angle, the findings made by the learned

XI Additional District Judge, Visakhapatnam basing on a memo

filed by the defendants dismissing the suit as becomes

infructuous is not at all sustainable under law and facts, as such,

the impugned order with decree is liable to be set aside.

21) As the suit is of the year, 2015 i.e., aged about 8

years which was dismissed as infructuous with erroneous

reasons way back in the year 2021, it is just and necessary to

direct the learned XI Additional District Judge, Visakhapatnam to

dispose the suit on merits.

22) In the result, the appeal is allowed with costs setting

aside the impugned order and decree, dated 23.11.2021 in

O.S.No.804 of 2015, on the file of XI Additional District Judge,

Visakhapatnam, thereby restoring the said O.S.No.804 of 2015

to its file. The learned XI Additional District Judge,

Visakhapatnam, is directed to dispose O.S.No.804 of 2015, in

accordance with law, by giving opportunity to the parties to

adduce evidence on the issues framed, within a period of six

(06) months from the date of receipt of this judgment.

23) Registry is directed to send copy of the judgment

along with original record to the Court below on or before

11.08.2023.

Consequently, miscellaneous applications pending, if any,

shall stand closed.

________________________ JUSTICE A.V. RAVINDRA BABU Dt.09.08.2023.

PGR

THE HON'BLE SRI JUSTICE A.V. RAVINDRA BABU

Appeal Suit No.67 of 2022

Note: Registry is directed to send copy of the judgment along with original record to the Court below on or before 11.08.2023.

Date: 09.08.2023

PGR