Sri Thomas Saverimuthu vs Sri K Joseph
2022 Latest Caselaw 12950 Kant

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 IN THE HIGH COURT OF KARNATAKA AT BENGALURU

     DATED THIS THE 10TH DAY OF NOVEMBER, 2022

                       BEFORE
     THE HON'BLE MR JUSTICE B M SHYAM PRASAD
       WRIT PETITION NO. 7683 OF 2021 (GM-CPC)
BETWEEN:

     SRI THOMAS SAVERIMUTHU
     AGED ABOUT 61 YEARS,
     S/O SRI SAVERIMUTHU,
     REPRESENTED BY HIS POWER OF ATTORNEY
     HOLDER SRI JAIJU JOSEPH,
     AGED ABOUT 51 YEARS,
     RA/TNO.1407, HENNUR MAIN ROAD,
     ST. THOMAS TOWN POST,
     LINGARAJAPURAM,
     BENGALURU-560084.
                                       ...PETITIONER

(BY SRI. S.V.GIRIDHAR, ADVOCATE)

AND:

1.   SRI K JOSEPH
     AGED ABOUT 54 YEARS,
     S/O KANIKASWAMY,


2.   SRI K ALPHONS
     AGED ABOUT 52 YEARS,
     S/O KANIKASWAMY,


3.   SRI BALARAJ
     AGED ABOUT 50 YEARS,
     S/O KANIKASWAMY,
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4.   SRI K AMRUTHARAJ
     AGED ABOUT 48 YEARS,
     S/O KANIKASWAMY,


5.   KUMARI ANTHONY MARY
     AGED ABOUT 40 YEARS,
     D/O KANIKASWAMY,


6.   SRI KANIKASWAMY
     AGED ABOUT 78 YEARS,
     S/O SRI ARALAPPA,


7.   SMT KANIKMARY
     AGED ABOUT 76 YEARS,
     W/O KANIKASWAMY,


8.   SRI SRINATHKUMAR
     AGED ABOUT 58 YEARS,
     S/O KANIKASWAM,


     ALL ARE RESIDENT OF BYRATHI VILLAGE,
     BIDARAHALLI HOBLI,
     BANGALORE EAST TALUK,
     BANGALORE 560049.

                                       ...RESPONDENTS

(BY SRI. RAMESH ADITHYA, ADVOCATE FOR R2, R3, R5,
    R7 AND R8;
    SRI. DILRAJ ROHIT SEQUEIRA, ADVOCATE FOR R4;
    R1 AND R4 SERVED - UNREPRESENTED)

     THIS WRIT PETITION IS FILED UNDER ARTICLES 226
AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO
QUASH THE ORDERS DTD 22.03.2021 PASSED BY THE II
ADDL SENIOR CIVIL JUDGE, BANGALORE DISTRICT, IN
OS NO.200/2008, ALLOWING AN APPLICATION FILED BY
DEFENDANTS UNDER ORDER III RULE 2 R/W SECTION
120 OF THE EVIDENCE ACT AND ORDER IX RULE 12 R/W
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SECTION 151 OF CPC VIDE ANNX-A AND TO QUASH THE
ORDER DATED 10.10.2022 PASSED BY TEH II
ADDITIONAL SENIOR CIVIL JUDGE, BANGALORE RURAL
DISTRICT IN O.S.NO.200/2008 IN DISMISSING THE SUIT
WITHOUT     CONSIDERING      THE    INTERLOCUTORY
APPLICATION AS AT ANNEXURE-K AND CONSEQUENTLY
RESOTRE O.S.NO.200/2008 TO FILE.

     THIS PETITION, COMING ON FOR ORDERS, THIS
DAY, THE COURT MADE THE FOLLOWING:
                            ORDER

The petitioner has commenced the suit in O.S.No.

200/2008 on the file of the IV Additional Senior Civil Judge

Bengaluru Rural District, Bengaluru (for short, 'the civil

Court'), through his power of attorney, who is permitted by

the civil Court to prosecute the suit and to tender evidence

on behalf of the plaintiff. The civil Court by the impugned

order dated 22.03.2021, while considering an application

(I.A.N.o.12) filed under Order III Rule 2 read with Section

120 of the Evidence Act, 1872 and under Order IX Rule 12

of the Code of Civil Procedure, 1908 (for short, 'CPC'), has

called upon the petitioner to appear in person on

20.04.2021 observing that if he does not appear on the given

date, the power of attorney executed by him would stand

cancelled. The operative portion reads as under:

IA filed by the defendants U/O.3 Rule 2 R/w Sec.120 of Evidence Act and U/O.9 Rule 12 of CPC is partly allowed.

Consequently, plaintiff by name Sri. Thomas Saverimuttu is hereby directed to appear physically on 20/04/2021. If does not appear on the given date, automatically the General Power of Attorney executed by him stands cancelled.

For appearance of plaintiff by: 20/04/2021.

2. This Court, in the present petition, has stayed

the civil Court's order dated 22.03.2021. However, this stay

is not extended from the second hearing date. With this

being brought to the notice of the civil Court by memo dated

10.10.2020, the civil Court has dismissed the suit observing

that with the petitioner's failure to appear in person, the

power of attorney executed by him is cancelled and if the

power of attorney stands cancelled, the suit would not

survive for consideration. Presently, the petitioner is

permitted by way of an amendment to impugn the civil

Court's subsequent order dated 10.10.2022.

3. The petitioner, in what his learned counsel,

Sri S.V.Giridhar describes as peculiar circumstances, has

commenced miscellaneous proceedings1 for restoration of

the suit while prosecuting this petition. The civil Court with

this miscellaneous proceedings also listed before it, has

opined that the petitioner is represented by the power of

attorney holder and if the petitioner does not appear in

person, the petition would not be maintainable. The civil

Court's opinion in Miscellaneous proceedings read as under:

"Suit in O.S.No.200/2008 on the file of this court was dismissed for non prosecution on 10.10.2022in view of plaintiff/petitioner who is a GPA holder failed to keep present the executent of general power of attorney. Therefore petition is not maintainable without filing the same by original plaintiff/petitioner as GPA holder does not have locustandy. The petitioner is hereby directed to survey the petition copy of this case to the counsel who represented O.S.200/2008"

Sri S.V.Giridhar submits that this opinion, which is even

before notice is issued to the respondent, prejudices the

petitioner and constrains the petitioner to circuitous

proceedings.

4. The petitioner continuous to be represented by

the attorney, and his suit is for declaration that the

judgment and decree dated 12.11.1999 in O.S.No.170/1999

on the file of the Principal Civil Judge (Senior Division),

Bengaluru insofar as it relates to the subject property2 is

null and void and not binding on him. The petitioner

contends that he has purchased the subject property from

six [6] vendors, including Sri. Kanikaswamy, under the sale

deed dated 07.07.1994. Sri. Kanikaswamy's sons (the

respondents - defendants in the suit) have commenced this

collusive suit for partition inter se. The respondents [the

vendors' sons) with the execution of the sale deed dated

07.07.1994 could not have asserted any interest in the

subject property and notwithstanding the same, and

suppressing the same, they have commenced the suit.

5. At this stage, this Court must record that

another suit in O.S.No.874/2019 is commenced for specific

performance asserting right to purchase the subject property

under an agreement with the petitioner, and this suit is also

2 Sy.No.63 (measuring 2 acres 25 guntas with 15 guntas kharab totally 3 acres and Sy.No.69 totally measuring 3 acre 01 guntas of Kyalasanahalli Village, Bidarahalli Hobli, Bengaluru East Taluk

decreed. When this decree for specific performance is put

into execution in Ex.Case.No.23/2020, a sale deed for the

subject property is executed in favour of the purchaser, who

has filed an application for substitution under Order XXII

Rule 10 of CPC in the present suit. This application under

Order XXII Rule 10 of CPC was pending consideration as of

the date of the first impugned order dated 20.04.2021.

6. The respondents, who have filed written

statement denying the petitioner's case, have filed an

application on 27.01.2021 contending inter alia that the

petitioner's attorney, who is examined as a witness, has

admitted in his evidence that he is not aware whether the

petitioner is alive and he is not personally acquainted with

the facts and circumstances of the case; the attorney has

filed the present suit to knock off the subject property

without the petitioner's knowledge. The civil Court, while

considering this application, has directed the petitioner to be

present with the observation [as first mentioned] that if he

does not appear on the date specified, the power of attorney

would stand cancelled.

7. Sri. S.V.Giridhar, the learned counsel for the

petitioner, submits that the civil Court has considered a very

tentative assertion to direct the petitioner to be present and

observing that if he fails to appear in person, the power of

attorney would stand cancelled. The civil Court should have

considered the probative value of the attorney's testimony at

the time of final adjudication considering the circumstances

in which the power of attorney is executed. It could always

be shown that power of attorney is coupled with interest.

The civil Court should also have considered the subsequent

events, and definitely after considering the application filed

by the decree holder - purchaser, who has the benefit of the

sale deed executed in enforcement of a decree for specific

performance.

8. Sri. S.V.Giridhar relies upon multiple documents

viz., a photocopy of the passport issued by the Federal

Republic of Germany in favour of the petitioner on

26.02.2019 and a photocopy of the travel permit granted to

the petitioner by the Government of Tamil Nadu for the

period between 29.03.2019 and 30.03.2021 to travel from

Bengaluru to Masinagudi, Nilgiri, Tamil Nadu as also the

different posts on social media to contend that the petitioner

is alive and there cannot be any reason for assumption to

the contrary. The petitioner, who continues to be

represented by an attorney, who is duly constituted with an

irrevocalbe authority, could be handicapped or could have

lost interest in the subject property and the proceedings

because of the turn of events resulting in sale deed in

enforcement of a decree for specific performance. In any

event, there is no reason to assume that the petitioner is no

more and the power of attorney stands cancelled.

9. Sri. Dilraj Rohit Sequeira, the learned counsel for

the contesting respondent - the fourth respondent, submits

that this respondent's defense that the petitioner is no more

stands vindicated by the fact that the petitioner continuous

to be represented by the attorney and only certain

documents are produced to validate the continuation of the

proceedings by the attorney. He argues that there is

suppression of material facts in not referring to the

commencement of the proceedings in O.S.No.874/2019 that

has ended in the sale deed in favour of the purchaser.

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However, he does not dispute that the application under

Order XXII Rule 10 of CPC was pending consideration.

10. The peculiar circumstances of the case and rival

submissions are considered in the backdrop of the reiterated

refrain:

It is true that procedure is the handmaid of justice. The Courts must always be anxious to do justice and to prevent victories by way of technical knock-outs.

The Hon'ble Supreme Court in R.N. Jadi & Brothers & ors

Vs. Subhashchandra3 has referred to this refrain and also

that caution must be exercised when the same is invoked.

The circumstances narrated and the rival submissions are

considered in the backdrop of this refrain and the adjunct

caution to ensure that adjudication is not ensnarled in

processual quagmire.

11. It is seen from the circumstances of the case that

the present suit, which could vindicate the title to the

subject property either in favour of the petitioner/the

purchaser or the defendants - respondents, is aborted

without a final conclusion on the ground that the petitioner

3 (2007) 6 SCC 420

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is no more. This Court must opine that the civil Court's

opinion, at the stage when the evidence is not yet completed,

that the petitioner is no more only because of the petitioner's

failure to turn up on the specified date and the direction

that the power of attorney is cancelled, has resulted in a

technical knock out without examination of the necessary

questions. This Court is also of the view that the civil

Court's impugned orders bring about a closure of the suit

that could only pave way for multiplicity of proceedings.

12. It is redoubtable that it should be open to the

petitioner to establish, as now contended and for final

adjudication on title to the subject property, that the power

of attorney is coupled with interest and is irrevocable. This

would be crucial for an efficacious decision on merits that

will decide the rival claims to the subject property in

consonance with the procedure. Further, an application

under Order XXII Rule 10 of CPC filed by a purchaser from

the petitioner is also pending consideration, and this

remains undecided. The maintainability of this application

must also be considered.

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13. This Court, in the circumstances of the case, is

persuaded to opine that this Court must intervene, set aside

the impugned orders, restore the suit for consideration on

merits, including the consideration of the application

pending under Order XXII Rule 10 of CPC, but on terms. Of

course, this Court must observe that all questions are left

opinion to be decided by the civil Court. Hence, the

following:

ORDER

a) The petition is allowed, and the civil Court's

impugned order dated 22.03.2021 and the

subsequent order dated 10.10.2022 are quashed.

The suit is restored for re-consideration to the

stage it stood as of 22.03.2021.

b) The parties are directed to assist and co-operate

with the civil Court in expeditious disposal of not

just the pending application but also the suit on

merits. The civil Court shall endeavor the

application and the suit as aforesaid within an

outer limit of nine [9] months from the date of the

first appearance before the civil Court after this

order.

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c) The parties shall appear before the civil Court

without further notice on 01.12.2022.

d) The petitioner through his power of attorney is

permitted to place on record a certified copy of

this order in the pending miscellaneous

proceedings in Misc. Petition No.112/2022. The

civil Court is called upon, if the certified copy is

placed on record, to dispose of the same in the

light of this order.

Sd/-

JUDGE

RB