Kerala High Court
P Jafar vs M A Ajithprasad Jain on 8 September, 2025
1
R.S.A. No. 474 of 2025
2025:KER:66811
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE EASWARAN S.
MONDAY, THE 8TH DAY OF SEPTEMBER 2025 / 17TH BHADRA, 1947
RSA NO. 474 OF 2025
AGAINST THE JUDGMENT DATED 18.03.2025 IN AS NO.3 OF 2023
OF SUB COURT, SULTHANBATHERY ARISING OUT OF THE DECREE AND
JUDGMENT DATED 21.11.2022 IN OS NO.159 OF 2022 OF MUNSIFF
MAGISTRATE COURT, KALPETTA.
APPELLANT(S)/APPELLANT/PLAINTIFF:
P. JAFAR,
AGED 47 YEARS, S/O. AMMAD PANCHARAVEETIL,
KAMBALAKKAD, PONGINICHIKKALLOOR AMSOM DESOM,
VYTHIRI TALUK, WAYANAD, PIN - 673122.
BY ADVS.
SMT. GAYATHRI KRISHNAN
SRI. VINAY JOHN A. J.
RESPONDENT(S)/RESPONDENT/DEFENDANT:
M A AJITHPRASAD JAIN,
AGED 73 YEARS, S/O. ANATHAYYA GOUDAR,
MANIYANKODE ESTATE, MANIYANKODE POST,
VENGAPPALLI AMSOM DESOM, VYTHIRI TALUK,
WAYANAD, PIN - 673122.
THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON
08.09.2025, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
2
R.S.A. No. 474 of 2025
2025:KER:66811
EASWARAN S., J.
--------------------------
R.S.A. No. 474 of 2025
-------------------------
Dated this the 08th day of September, 2025
JUDGMENT
The appeal arises out of the concurrent findings of the Munsiff
Court, Kalpetta in O.S. No. 159 of 2022 which was confirmed by the
Sub Court, Sulthanbathery in A.S. No. 3 of 2023.
2. The brief facts necessary for the disposal of this appeal are
as follows:
2.1. The suit O.S. No. 159 of 2022 is instituted by the appellant
for a declaration that the power of attorney dated 12.04.2004
executed by the defendant in favour of the plaintiff still subsists and
that the plaintiff has every right to execute sale deed in respect of plaint
schedule property to which an agreement of sale was entered by him.
Consequential injunction was also sought for seeking to restrain the
defendant from transferring the plaint schedule property without the
consent of the plaintiff. The dispute in the suit revolves upon the
validity of the power of attorney executed in favour of the
2025:KER:66811
plaintiff/appellant on 12.04.2004 by the defendant. According to the
plaintiff, he has executed an agreement of sale dated 15.11.2011 and
that the defendant has received the advance sale consideration. The
defendant appeared and contested the suit and filed I.A. No. 6 of 2022
seeking to reject the plaint for not having disclosed any cause of action
under Order VII Rule 11(a) of the Code of Civil Procedure. The plaintiff
resisted the application on the ground that going by the contents of
the power of attorney, the agreement of sale executed by him was
perfectly legal and that he had every right to execute the sale deed in
pursuance to the said agreement of sale. The Trial Court, however,
came to the conclusion that there is an implied evocation of power of
attorney under Section 207 Section of the Indian Contract Act, 1872.
Resultantly, the suit was rejected as having failed to disclose the cause
of action. Aggrieved by the rejection of the plaint, the plaintiff
preferred A.S. No. 3 of 2023 which was also dismissed by the First
Appellate Court and, hence, this appeal.
3. Heard Smt. Gayathri Krishnan, the learned Counsel
appearing for the appellant.
2025:KER:66811
4. The learned Counsel for the appellant vehemently argued
that the rejection of the plaint under Order VII Rule 11(a) of the Code
of Civil Procedure is completely erroneous and that the First Appellate
Court also failed to note the crucial fact that when the agreement of
sale was executed, the power of attorney will subsist and that any
subsequent act of the defendant cannot prejudice the appellant. In the
absence of any overt act on the part of the defendant in cancelling the
power of attorney, an implied evocation of the power of attorney could
not have been drawn by the Courts below in terms of Section 207 of
the Contract Act. Admittedly, the defendant had received the advance
sale consideration and, therefore, the plaintiff had every right to
institute the suit.
5. On consideration of the aforesaid arguments, this Court
finds that the present appeal is not maintainable inasmuch as the
plaintiff had failed to challenge order dated 21.11.2022 in I.A. No. 6
of 2022 in appeal before the First Appellate Court. Order 43 Rule 1A
of the Code of Civil Procedure confers a right to challenge non-
appealable orders in appeal against decree. Order 43 Rule 1A of the
Code of Civil Procedure reads as under:
2025:KER:66811
"1A. Right to challenge non-appealable orders in appeal
against decree.
(1) Where any order is made under this Code against a party
and there upon any judgment is pronounced against such
party and a decree is drawn up, such party may, in an appeal
against the decree, contend that such order should not have
been made and the judgment should not have been
pronounced.
(2) In an appeal against a decree passed in a suit after
recording a compromise or refusing to record a compromise,
it shall be open to the appellant to contest the decree on the
ground that the compromise should, or should not, have
been recorded."
6. No doubt, the plaintiff was entitled to challenge the order
by which the plaint was rejected under Order VII Rule 11(a). However,
while challenging the rejection of the plaint, it was incumbent upon the
plaintiff to have separately challenged the order dated 21.11.2022 in
I.A. No. 6 of 2022 before the First Appellate Court. Having failed to
challenge the said order, in the considered view of this Court, the
challenge to the rejection of the plaint alone will not suffice. Therefore,
this Court is of the considered view that the present second appeal is
not maintainable in the absence of any separate challenge to order
dated 21.11.2022 in I.A. No. 6 of 2022 before the First Appellate
Court.
2025:KER:66811
Resultantly, finding that no substantial question of law arises for
consideration in the present second appeal, the appeal fails and
accordingly the same is hereby dismissed.
Sd/-
EASWARAN S.
JUDGE
Svn
