Bombay High Court
Nilesh S/O Krishnakumar Kariya vs Vasantrao S/O Govindrao Padole ... on 10 March, 2017
Bench: A.S. Chandurkar
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH : NAGPUR
Civil Revision Application No. 37 of 2016
AND
Civil Revision Application No. 38 of 2016
A. Civil Revision Application No. 37 of 2016 :
Nilesh son of Krishnakumar
Kariya,
aged 40 years,
occupation - business,
resident of Vidarbha Housing Board
Colony, Qr. No. 25,
near Shanti Nagar Ghat,
Shanti Nagar, Nagpur. ..... Applicant
Versus
1. Vasantrao son of Govindrao Padole,
aged 70 years,
occupation - business,
2. Smt. Tara wife of Vasantrao
Padole,
aged about 57 years,
occupation - business,
both residents of 67/B,
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Vivekanand Nagar,
Wardha Road, Nagpur.
3. Wasudeorao son of Laxmanrao
Bawane,
aged 71 years,
occupation - business,
resident of Indraprashta Nagar,
Indraprastha Society,
Swawalmbi Nagar,
Nagpur.
4. Roshan son of Purshottam Hore,
aged 41 years,
occupation - business,
resident of Flat No.502,
Block E, Sanchayani
Prestige Complex,
Indraprastha Nagar,
Swawalmbi Nagpur,
Nagpur. ..... Non-Applicants.
*****
Mr. R.R. Shrivastava, Adv., for the Applicant.
Mr. C.D. Wasade, Adv., for Non-applicant Nos. 1 and 2.
*****
B. Civil Revision Application No. 38 of 2016 :
Nilesh son of Krishnakumar
Kariya,
aged 40 years,
occupation - business,
resident of Vidarbha Housing Board
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Colony, Qr. No. 25,
near Shanti Nagar Ghat,
Shanti Nagar, Nagpur.
....Org. Deft. ..... Applicant
Versus
1. Vasantrao son of Govindrao Padole,
aged 70 years,
occupation - business,
2. Smt. Tara wife of Vasantrao
Padole,
aged about 57 years,
occupation - business,
both residents of 67/B,
Vivekanand Nagar,
Wardha Road, Nagpur.
....Org. Plaintiffs.
3. Govindrao son of Laxmanrao
Bawane,
aged 71 years,
occupation - business,
resident of Indraprashta Nagar,
Indraprastha Society,
Swawalmbi Nagar,
Nagpur.
4. Roshan son of Purshottam Hore,
aged 41 years,
occupation - business,
resident of Flat No.502,
Block E, Sanchayani
Prestige Complex,
Indraprastha Nagar,
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Swawalmbi Nagpur,
Nagpur.
....Org. Defendants. ..... Non-Applicants.
*****
Mr. R.R. Shrivastava, Adv., for the Applicant.
Mr. C.D. Wasade, Adv., for Non-applicant Nos. 1 and 2.
Mr. B.B. Mehadia, Adv., for respondent no.3.
*****
CORAM : A.S. CHANDURKAR, J.
Date : 10th March, 2017
ORAL JUDGMENT:
01. In view of notice for final disposal issued earlier, both the
Revision Applications are being decided by this common judgment.
02. Facts relevant for considering the challenge as raised in
these Civil Revision Applications are stated by referring to the facts in
Civil Revision Application No. 38 of 2016.
03. It is the case of the applicant that one Amol Vasantrao
Padole, son of Non-applicant Nos. 1 and 2, was the owner of Plot
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No.62. This was his self-acquired property. On 4th April, 2007, said
Amol entered into an agreement to sell this plot of land in favour of
non-applicant no.3 herein - Govindrao Bawane. After receiving the
amount of consideration, an irrevocable Power of Attorney came to be
executed by said Amol in favour of Non-applicant No.3 on 1st August,
2007. Possession of the suit property was handed over in favour of
non-applicant no.3 after receiving the entire consideration. Thereafter,
a Deed of Assignment came to be executed on 29th January, 2008 by
Non-applicant no.3 for himself and on behalf of said Amol. The rights
in the aforesaid property came to be assigned in favour of the
applicant for valuable consideration. On 21st February, 2008, said
Amol expired and hence sale-deed of the aforesaid property could not
be executed in favour of non-applicant no.3. The applicant had filed
Special Civil Suit No. 175 of 2009 against non-applicant no.3 as well as
said Amol Padole through his Power of Attorney Holder - Non-applicant
No.3. A declaration was sought that non-applicant no.3 had no right to
refuse to comply with the terms of the Deed of Assignment dated 29th
January, 2008 which was executed in favour of the applicant. The said
suit came to be disposed of as compromised on 8th April, 2009. As per
said compromise decree, it was agreed by the non-applicant no.3 on
behalf of said Amol that sale-deed of the aforesaid property would be
executed in favour of nominee of the applicant. The non-applicant nos.
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1 and 2 after going through a public notice issued on 12th November,
2009 with regard to the suit property made enquiries and learnt about
the said compromise decree. After taking necessary steps in the
matter, the non-applicant nos. 1 and 2 filed suit for declaration that the
compromise decree obtained earlier was by practising fraud and was,
thus, null and void. In this suit, the applicant filed an application under
provisions of Order-VII, Rule 11 of the Code of Civil Procedure, 1908
[for short, "the Code"] seeking rejection of the plaint on the ground
that as the non-applicant nos. 1 and 2 had no right or interest in the
suit property as the title therein had passed in favour of the applicant,
there was no cause of action for filing the suit. By the impugned order,
the trial Court has rejected the said application.
04. Shri R.R. Shrivastava, learned counsel for the applicant,
submitted that in view of provisions of Order-XXIII, Rule 3A of the
Code, the suit as filed by the non-applicants was not maintainable. He
submitted that the suit property was the self-acquired property of Amol
and by virtue of execution of the power of attorney that was
irrevocable in nature on 1st August, 2007 and the consequent
execution of the Deed of Assignment by non-applicant no.3 in favour of
the applicant, said Amol stood divested of his right, title and interest in
the suit property. He submitted that non-applicant nos. 1 and 2 had, in
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fact, filed an appeal challenging the compromise decree passed in the
earlier suit; but the delay in filing the said appeal was not condoned.
Said order had attained finality and, therefore, it was not now open for
them to file a subsequent suit to challenge the compromise decree.
Referring to the provisions of Section 202 of the Indian Contract Act,
1872 [for short, "the said Act"] and especially Illustration (a) thereof, it
was sought to be urged that the death of Amol did not result in
termination of the Power of Attorney, inasmuch as the same was
irrevocable and the interest in the property stood transferred in favour
of its holder. It was then submitted that the fact as to death of Amol
had been mentioned in the plaint of the earlier suit that was filed by
the applicant and said fact was not suppressed. Though the non-
applicant nos. 1 and 2 were claiming as legal heirs of Amol, they did
not have any independent right in the self-acquired property of Amol.
The suit at their instance was barred and, therefore, the plaint was
liable to be rejected under provisions of Order-VII, Rule 11 (a) and (d)
of the Code. In support of his submissions, the learned counsel placed
reliance on the following decisions:-
[a] Bhagwanbhai Karamanbhai Bharvad Vs.
Arogyanagar Co-op. Housing Society Ltd. & others
[AIR 2003 Gujarat 294],
[b] Horil Vs. Keshav & another [ (2012) 5 SCC 525],
[c] R. Rajanna Vs. S.R. Venkataswamy & others
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[ (2014) 15 SCC 471],
[d] Banwari Lal Vs. Chando Devi (Smt) (through LRS.)
and another [ (1993) 1 SCC 581],
05. Per contra, Shri C.D. Wasade, learned counsel for non-
applicant nos. 1 and 2, supported the impugned order. According to
him, as the non-applicant nos. 1 and 2 were not a party to the earlier
suit which ended in a decree for compromise, the subsequent suit filed
by them for challenging the compromise decree was maintainable and
the same was not barred under provisions of Order-XXIII, Rule 3A of
the Code. He submitted that no interest as contemplated by provisions
of Section 54 of the Transfer of Property Act, 1882 [for short, "the Act
of 1882"] was created in favour of the non-applicant no.3 or the
applicant and, therefore, provisions of Section 202 of the said Act
would not come to the aid of the applicant. He referred to the
averments in the plaint in the subsequent suit to urge that the decree
for compromise was being challenged by alleging fraud. He then
submitted that the document of the Power of Attorney was executed
on a stamp paper of Rs.100/- and it was, therefore, insufficiently
stamped. He also disputed the initial agreement dated 4th April, 2007
and submitted that each page of said agreement was not signed by
Amol nor was the entire consideration paid. He referred to the order
passed in the Writ Petitions filed by the non-applicant nos. 1 and 2, by
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virtue of which, the subsequent suits for challenging the compromise
decree came to be filed. On that premise, it was submitted that the
subsequent suit was maintainable and the trial Court acted within its
jurisdiction when it refused to reject the plaint. The learned counsel
placed reliance on the following decisions:-
[a] Siddalingeshwar & others Vs. Virupaxgouda &
others [AIR 2003 Karnataka 407],
[b] Aruna Sagar & others Vs. Shrushti Infrastrcture
Corporation & others; M Ram Reddy & others
[2016 (2) ALD 403],
[c] Suraj Kumari Vs. District Judge, Mirzapur [1991 AIR
(ALL) 75],
[d] Kaliaperumal Vs. Rajagopal [ (2009) 4 SCC 193], and
[e] Parashram Kashiram Sakhare Vs. Vatsalabai
Harshay Sharma [2005 (5) Mh. L.J. 405].
06. I have heard the learned counsel for the parties at length
and I have also perused the averments made in the plaint.
07. Since the applicant seeks rejection of the plaint by relying
upon the provisions of Order-VII, Rule 11 (a) and (d) of the Code, the
following legal position will have to be kept in mind:-
While considering an application under provisions of Order-
VII, Rule 11 (a) of the Code, it is only the plaint averments that are
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required to be taken into consideration. The plaint averments have to
be assumed to be correct. If on a meaningful reading of the entire
plaint, cause of action is disclosed that would enable the plaintiff to file
the suit, then the plaint is not liable to be rejected under Order-VII,
Rule 11 (a) of the Code. Neither can the defence set up by the
defendants nor can any extraneous material at the instance of the
defendants be looked into while considering such application. Further,
whether the cause of action, as pleaded, would fructify into a decree is
not a question to be gone into at the stage of considering such prayer
nor is the likelihood of the success of the plaintiffs a consideration.
08. If the plaints in both the suits are perused, it can be seen
that it is the case of non-applicant nos. 1 and 2 who are the parents of
deceased Amol that the earlier suits in which the compromise decrees
were passed were filed by the applicant in collusion with Non-applicant
no.3 with a view to commit fraud on Amol. It is then pleaded in
paragraph 6 of the plaint that these suits were filed against a dead
person, inasmuch as Amol had expired on 22nd February, 2008 and,
therefore, the Power of Attorney granted by him in favour of non-
applicant no.3 had already come to an end. In para 7, it is pleaded
that non-applicant nos. 1 and 2 were not parties in the said Civil Suits
and only after noticing a public notice issued on behalf of non-
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applicant no.3 that they got knowledge about the entire transaction.
Thereafter, in paragraph 9, it is pleaded that non-applicant nos. 1 and
2 are the lawful owners in possession of the suit property that is
mutated in their names. It is on these pleadings that the compromise
decree passed in the earlier suit is sought to be challenged as being
null and void and obtained by practising fraud.
09. Thus, if the plaint averments are taken into consideration
and which plaint averments at this stage have to be accepted as they
are, it is clear that the plaint discloses cause of action for filing the suit
and there is no statement in the plaint to indicate that the suit is
barred by any law. Though it was strenuously urged on behalf of the
applicant that the subsequent suits were barred in view of provisions
of Order-XXIII, Rule 3A of the Code, said submission does not deserve
acceptance at this stage. The record indicates that non-applicant nos.
1 and 2 were not parties in the earlier suit and as held in
Siddalingeshwar & others [supra], such bar would not be applicable to
a person who is not a party in the earlier suit. For the said reason, the
ratio of the decisions in Horil, R. Rajanna and Banwari Lal [supra]
cannot be made applicable in the facts of the case in hand.
The question as to whether the document of Power of
Attorney dated 1st August, 2007 was irrevocable and whether interest
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was created in the suit property in favour of non-applicant no.3 is a
matter to be considered after the parties lead evidence. Similar is the
case with regard to the Deed of Assignment dated 29th January, 2008.
All these documents are the part of the defence of the defendants
which cannot be taken into consideration at the stage of considering
the application under provisions of Order-VII, Rule 11 of the Code. As
noted above, it is only the plaint averments that are required to be
taken into consideration at this stage and after taking them into
consideration, I find that the trial Court rightly refused to reject the
plaint on the grounds as urged by the applicant.
10. Though submissions were made with regard to applicability
of the provisions of Section 202 of the Act of 1872 and that the
document of Power of Attorney was insufficiently stamped, said
questions need not be gone into at this stage. It is, therefore, not
necessary to refer to the decisions relied upon by the learned counsel
in that regard.
11. As a sequel to the aforesaid discussion, I am of the view that
the order passed by the trial Court cannot be faulted. The trial Court
rightly refused to reject the plaint. As I do not find any merit in the
Civil Revision Applications, the same stand dismissed with no order as
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to costs.
It is clarified that observations made in this order are only
for deciding the Civil Revision Applications. The suits shall be decided
on their own merits without being influenced by any such observations.
Judge
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