Calcutta High Court (Appellete Side)
Surojit Pathak vs David Christopher Somerset & Ors on 14 July, 2023
1
IN THE HIGH COURT AT CALCUTTA
CIVIL APPELLATE JURISDICTION
APPELLATE SIDE
Present:
THE HON'BLE JUSTICE HARISH TANDON
&
THE HON'BLE JUSTICE PRASENJIT BISWAS
S.A.T 78 of 2023
Surojit Pathak
Vs.
David Christopher Somerset & Ors.
Appearance:
For the Petitioners : Mr. Malay Kumar Das, Adv.
Mr. Dibyajyoti Raha, Adv.
Judgment On : 14.07.2023
PRASENJIT BISWAS, J.:
The instant appeal has been preferred by the defendant/appellant
challenging the concurrent findings of the courts below.
David Christopher Somerset as plaintiff (herein respondent no.1)
filed a Title Suit being no. 267/12 against the present
defendant/appellant impleading his sister Margaret as proforma
defendant. Plaintiff claimed to be the owner along with his sister in respect
of the suit property by way of inheritance from their mother Anastasia.
During lifetime Anastasia executed a general power of attorney in favour of
one Gerald Emile Moses on 15.03.1990 which was subsequently revoked
by her on 24.03.1994. Thereafter another power of attorney was executed
in favour of Brian Anthony Jennings. Anastasia died on 09.10.2003.
During his visit to India present respondent no.1/plaintiff came to
know that the present appellant/defendant claimed to be the owner of the
suit property by virtue of a sale deed executed on 09.02.2003 in
connection with Title Execution Case No. 194 of 2008 arose out of Title
Suit No. 465 of 2007. It was further revealed that Title Suit No. 465 of
2007 was filed by the present defendant/appellant for specific
performance of contract dated 31.07.1993. The said title suit was decreed
ex parte by the trial court when the original owner Anastasia was no more
in world. Respondent No. 1 filed a Title Suit against the present
appellant/defendant and Gerald Emile Moses for eviction, declaration of
title along with a further declaration that the purported sale deed dated
9th February, 2009 is not binding upon this respondent/plaintiff.
The suit was decreed ex parte in favour of the plaintiff and it
declared the sale deed dated 09.02.2009 is not binding upon him. The
said ex parte order was challenged by the present appellant before the first
appellate Court and an application along with some documents was filed
for taking additional evidence.
The parameters of considering the application filed under Order
41 Rule 27 have been summed up by the Supreme Court in the case of
Union of India vs. Ibrahim Uddin & Anr. reported in (2012) 8 SCC
148 which for the sake of convenience is being reproduced below:-
"48. To sum up on the issue, it may be held that application for
taking additional evidence on record at a belated stage cannot be filed as a
matter of right. The court can consider such an application with
circumspection, provided it is covered under either of the prerequisite
condition incorporated in the statutory provisions itself. The discretion is to
be exercised by the court judicially taking into consideration the relevance of
the document in respect of the issues involved in the case and the
circumstances under which such an evidence could not be led in the court
below and as to whether the applicant had prosecuted his case before the
court below diligently and as to whether such evidence is required to
pronounce the judgment by the appellate court. In case the court comes to
the conclusion that the application filed comes within the four corners of the
statutory provisions itself, the evidence may be taken on record, however,
the court must record reasons as on what basis such an application has
been allowed. However, the application should not be moved at a belated
stage."
Those parameters have been considered by the court below while
rejecting the said application, the defendant/ appellant did not contest the
suit and there is no evidence on his behalf. The first appellate Court
rightly observed that the appellant should not be allowed to adduce and
rely upon additional evidence when additional evidence unmistakably
presupposing some prior evidence and not encompassing the case of no
evidence.
Anastasia, the mother of the present respondent No. 1 and
proforma respondent No.3 died on 09.10.2003 and accordingly Gerald
could neither have had entered into agreement in respect of suit property
as her constituted agent nor could he has been sued by the defendant/
appellant in the year 2007 for the specific performance of agreement.
Undoubtedly, if the principal dies, a power of attorney ceases to exist. The
purpose of a power of attorney is for the agent to act on behalf of the
principal when the principal is unable to carry out their own legal matters.
However, once the principal dies, the agent loses this authority as they
can no longer make any decisions on behalf of the deceased principal.
The Title Suit being No. 465/2007 filed by this defendant/
appellant was against a dead person as there is no valid representation of
the estate of the deceased as Gerald ceased to be the constituted agent of
Anastasia since the time of her death. It appears to us that Anastasia died
on 09.10.2003 whereas the sale deed was executed on 09.02.2009 which
indicates that the sale deed being no.00466 for the year 2009 is palpably
ineffective one. Moreover ex-parte decree for specific performance of
contract for sale was passed on 21.02.2008. All these incidents indicate
about the fraudulent act committed upon the respondent no.1. The sale
deed was executed by the court on 09.02.2009 but due to death of Gerald
the power of attorney executed by Anastasia in favour of Gerald came to
an end since her death. So, no right, title and interest was vested upon
the appellant through the impugned deed.
We, thus, do not find any merit in the instant appeal nor an
involvement of the substantial question of law. The appeal is dismissed.
There shall, however, be no order as to costs.
Urgent Photostat certified copies of this judgment, if applied for,
be made available to the parties subject to compliance with requisite
formalities.
I agree.
(Harish Tandon, J.)
(Prasenjit Biswas, J.)
