Madras High Court
Gowtham Sampath vs Gurdip Singh Sandhu on 1 November, 2021
C.R.P.(NPD).Nos.4742 & 4743 of 2017
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 01.11.2021
CORAM:
THE HONOURABLE MS.JUSTICE V.M.VELUMANI
C.R.P.(NPD)Nos.4742 & 4743 of 2017
1.Gowtham Sampath
2.Nirmala Perumal
Both represented by Power Agent
E.A.Sekar .. Petitioners in both C.R.Ps.
Vs.
Gurdip Singh Sandhu .. Respondent in both C.R.Ps.
Prayer in C.R.P.No.4742/2017: Civil Revision Petition filed under
Article 227 of the Constitution of India, against the fair and decreetal
order dated 30.08.2017 made in I.A.No.1017 of 2017 in I.A.No.530 of
2014 in O.S.No.588 of 2007 on the file of the Principal District Court,
Kancheepuram District, Chengalpattu.
Prayer in C.R.P.No.4743/2017: Civil Revision Petition filed under
Article 227 of the Constitution of India, against the fair and decreetal
order dated 30.08.2017 made in I.A.No.1019 of 2017 in I.A.No.844 of
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C.R.P.(NPD).Nos.4742 & 4743 of 2017
2012 in O.S.No.588 of 2007 on the file of the Principal District Court,
Kancheepuram District, Chengalpattu.
(In both C.R.Ps.)
For Petitioners : Mr.T.V.Ramanujam (Senior Counsel)
for M/s.C.Jagadish
For Respondent : Mr.A.V.Arun
COMMON ORDER
(The matter is heard through 'video conferencing/hybrid mode')
C.R.P.No.4742 of 2017 is filed against the fair and decreetal order
dated 30.08.2017 made in I.A.No.1017 of 2017 in I.A.No.530 of 2014 in
O.S.No.588 of 2007 on the file of the Principal District Court,
Kancheepuram District, Chengalpattu.
C.R.P.No.4743 of 2017 is filed against the fair and decreetal order
dated 30.08.2017 made in I.A.No.1019 of 2017 in I.A.No.844 of 2012 in
O.S.No.588 of 2007 on the file of the Principal District Court,
Kancheepuram District, Chengalpattu.
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C.R.P.(NPD).Nos.4742 & 4743 of 2017
2.The issues and the parties involved in both the Civil Revision
Petitions are one and the same and hence, they are disposed of by this
common order.
3.The petitioners are plaintiff in O.S.No.588 of 2007 on the file of
the Principal District Court, Kancheepuram District, Chengalpattu. They
filed the said suit for specific performance of agreement of sale dated
14.11.2004, against one Major Harbhajan Singh Sandhu. The said
defendant remained exparte and exparte decree was passed on
17.04.2008. The petitioners filed E.P.No.28 of 2008 for execution of sale
deed and sale deed dated 15.07.2009 was executed by the Court on
behalf of the defendant Major Harbhajan Singh Sandhu, which was
registered as Document No.2973/2009 at Sub Registrar Office,
Thiruporur. The petitioners filed E.P.No.10 of 2012 for delivery of
possession of suit property and the same is pending. The respondent
herein, son of the defendant, filed 4 applications through his Power
Agent viz., Harish G.Dave, in I.A.No.842 of 2012 to recognize Harish
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C.R.P.(NPD).Nos.4742 & 4743 of 2017
G.Dave, as power agent of the respondent, I.A.No.843 of 2012 to
implead the respondent by power agent Harish G.Dave, as party 2 nd
defendant in the suit, I.A.No.844 of 2012 to condone the delay of 1445
days in filing the application for setting aside the exparte decree passed
on 17.04.2008 and unnumbered application to set aside the exparte
decree dated 17.04.2008 in the suit. In the said applications filed by the
power agent, the petitioners filed counter affidavits, contending that the
power agent cannot represent the principals in respect of the events that
took place prior to execution of sale deed and application for impleading
under Order I Rule 10 (2) of C.P.C., is not maintainable. While so, the
counsel for the power agent made endorsement “As the Principal
Gurdeep Singh Sandhu has came from Muscat this petition by Power
agent is not pressed. May be dismissed” in I.A.Nos. 842 of 2014, filed to
recognise Harish G.Dave as power agent and “This petition may be
dismissed as not pressed as the principal has filed a petition under Order
22 Rule 3 of C.P.C.” in I.A.No.843 of 2014, filed to implead the
respondent as party 2nd defendant in the suit. Recording the endorsement,
those two I.A.s were dismissed.
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C.R.P.(NPD).Nos.4742 & 4743 of 2017
4.The respondent filed I.A.No.530 of 2014 to implead himself as
party, without filing petition to set aside the exparte decree and
application to condone the delay in filing the petition to implead him.
I.A.No.844 of 2012, filed to condone the delay and unnumbered I.A.,
filed to set aside the exparte decree filed by the power agent cannot be
continued, as power agent was not recognised. The petitioners further
stated that the respondent did not file any vakalat along with I.A.No.530
of 2014. Without authority, the counsel for the respondent has no locus
standi to continue I.A.No.844 of 2012 or to proceed with I.A.No.530 of
2014. I.A.No.530 of 2014 filed by the respondent has to be rejected as he
has not filed any petition to set aside the exparte decree. The petitioners
further submitted that only the defendant can file a petition to set aside
the exparte decree under Order IX Rule 13 of C.P.C. The respondent
herein is not a person to depose about the exparte decree passed against
his father. The respondent filed I.A.No.653 of 2015 to amend the
affidavit in I.A.No.844 of 2012, filed to condone the delay in filing the
petition to set aside the exparte decree and in unnumbered I.A., filed
under Order IX Rule 13 of C.P.C., by his power agent, to substitute his
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C.R.P.(NPD).Nos.4742 & 4743 of 2017
name in the affidavit. The petitioners filed counter affidavit and opposed
the said application. The learned Judge passed an order, permitting to
amend the cause title alone and hence, I.A.No.844 of 2012 originally
filed by the respondent's power agent cannot be continued by him, as
petitions filed to recognize the power agent and to implead the
respondent as party under Order I Rule 10 (2) of C.P.C., through his
power agent was dismissed as not pressed. On these averments, the
petitioners filed I.A.Nos.1017 of 2017 and 1019 of 2017, to reject
I.A.No.530 of 2014 and I.A.No.844 of 2012 respectively as not
maintainable. The petitioners further stated that object of Order VII Rule
11 of C.P.C. is to prevent frivolous case and also to defend the vexatious
litigations unnecessarily. These two I.A.s are abuse of process of law. If
applications are not rejected, the petitioners will be put to irreparable loss
and hardship and prayed for rejection of I.A.Nos.530 of 2014 and 844 of
2012 and allowing both the Civil Revision Petitions.
5.The respondent filed counter affidavit and submitted that the
petition under Order VII Rule 11 of C.P.C. to reject the application is not
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C.R.P.(NPD).Nos.4742 & 4743 of 2017
maintainable. The present petitions are misconceived. None of the
provisions of Order VII Rule 11 applies to the petitions filed by the
petitioners. The provisions of Order VII Rule 11 of C.P.C. applies only
for rejection of plaint and not to reject the application. The application
under Order VII Rule 11 of C.P.C. can be filed only where there is abuse
of process of Court. In the suit, the suit summon was not served on the
defendant. The defendant was suffering from fever and after death of his
wife, he left the residence at Besant Nagar and went to Muscat to live
with his son, the respondent herein. The petitioners knowing fully well
that the defendant left Besant Nagar address, filed suit mentioning the
said address and obtained exparte decree. The respondent came to know
about the exparte decree only on 12.03.2012 and there is no delay in
filing the petition to set aside the exparte decree dated 17.04.2008. There
is no delay, but by abundant caution, the respondent through his power
agent, filed I.A.No.844 of 2012 to condone the delay in filing the petition
to set aside the exparte decree. Subsequently, the respondent came to
India and decided to prosecute the case himself. Hence, I.A.Nos.842 and
843 of 2012 were dismissed as not pressed. The respondent filed
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C.R.P.(NPD).Nos.4742 & 4743 of 2017
I.A.No.530 of 2014 under Order XXII Rule 4 and Section 151 of C.P.C.,
for impleading himself as 2nd defendant. The principal can prosecute the
case even without cancelling the power of attorney, as power of attorney
is only an agent of respondent/principal. I.A.No.843 of 2012 was filed by
the power of attorney under Order I Rule 10 of C.P.C., and when it was
brought to the notice of the respondent, the said application was
withdrawn as not pressed and present I.A.No.530 of 2014 under Order
XXII Rule 4 of C.P.C., filed by the respondent, which is in order, as the
legal representative of the defendant, who is the son of the defendant is
entitled to implead him as 2nd defendant in the suit. I.A.No.844 of 2012
was amended and the respondent is entitled to proceed with the said
application. In application I.A.No.530 of 2014, originally vakalat of
respondent was not filed. The Court numbered the I.A. without noticing
the defects. When the defect came to be noticed, the same was rectified
by filing vakalat. Once the defect is rectified, the application cannot be
rejected. The contention of the petitioners that only the party to the suit
can file an application to set aside the exparte decree is not correct. When
a defendant dies after exparte decree, the legal representatives of the
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C.R.P.(NPD).Nos.4742 & 4743 of 2017
defendant are entitled to file an application to set aside the exparte
decree. The respondent is not a third party, but he is son of the deceased
defendant and he is entitled to file an application to set aside the exparte
decree. The present two applications filed by the petitioners are vexatious
and filed only to protract the proceedings and prayed for dismissal of
both the applications. The learned Judge, considering the entire materials
and pleadings, dismissed both the I.As.
6.Against the said order dated 30.08.2017 made in I.A.No.1017 of
2017 in I.A.No.530 of 2014 in O.S.No.588 of 2007 and I.A.No.1019 of
2017 in I.A.No.844 of 2012 in O.S.No.588 of 2007, the petitioners have
come out with the present Civil Revision Petitions.
7.The learned Senior Counsel appearing for the petitioners
contended that the learned Judge failed to consider that as per Order III
Rule 4 of C.P.C., no pleader can act for any person, unless he has been
appointed for the purpose for such person by a document in writing. The
learned Senior Counsel submitted that I.A.No.844 of 2012 filed by the
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C.R.P.(NPD).Nos.4742 & 4743 of 2017
respondent is not maintainable, as he is not a party to the suit. The
defendant did not file any petition to set aside the exparte decree during
his life time. The learned Judge failed to properly appreciate Order IX
Rule 13 of C.P.C., which clearly says that only a party to the suit can file
an application to set aside the exparte decree. The learned Judge failed to
consider the judgments in 2013 (3) CTC 356 [Ram Prakash Agarwal
and another v. Gopi Krishan and others] and 2013 (5) CTC 640
[C.Venkatesan Vs. R. Natarajan], relied on by the learned counsel for
the petitioners and erroneously dismissed the applications. When the
counsel for the power agent made endorsement on the applications in
I.A.Nos.842 and 843 of 2012 as not pressed, since the principal himself
is prosecuting the case, the learned Judge failed to see that application in
I.A.No.844 of 2012 filed by power agent is not maintainable. The
respondent filed only application to amend I.A.No.844 of 2012 and
unnumbered application to set aside the exparte decree. But he has not
filed any application for impleading, under Order XXII Rule 3 of C.P.C.
The learned Judge failed to consider the maintainability of the
application in I.A.No.844 of 2012, filed by third party, but considered
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C.R.P.(NPD).Nos.4742 & 4743 of 2017
only non-filing of vakalat by the respondent. The learned Judge failed to
see that respondent did not even file vakalat in application in I.A.No.844
of 2012, which was filed earlier through his power agent. Even in
I.A.No.530 of 2014 filed under Order XXII of C.P.C., the respondent has
not filed vakalat. I.A.No.844 of 2012 filed by the power agent of the
respondent cannot survive even after amendment. The original defendant,
Major Harbhajan Singh Sandhu died, leaving behind the respondent and
one daughter by name Sukhwant Nimhas as his legal heirs. Since all the
legal representative of Major Harbhajan Singh Sandhu/defendant are not
impleaded, I.A.No.530 of 2014 is defective one. The learned Judge ought
to have considered the above materials and rejected both the applications
in I.A.Nos.530 of 2014 and 844 of 2012 and prayed for allowing both the
Civil Revision Petitions.
8.The learned counsel appearing for the respondent submitted that
initially, the applications were filed through power of attorney to implead
the respondent as 2nd defendant and to condone the delay in filing the
application to set aside the exparte decree. Subsequently, the respondent
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C.R.P.(NPD).Nos.4742 & 4743 of 2017
came from Muscat and decided to prosecute the case himself and
applications in I.A.No.842 of 2012, to recognise the power agent and
I.A.No.843 of 2012, to implead the respondent herein through power
agent, were not pressed. The respondent himself filed I.A.No.530 of
2014 under Order XXII Rule 3 of C.P.C., to implead him as party to the
suit and filed I.A.No.653 of 2015 to amend the application in I.A.No.844
of 2012 and unnumbered application to set aside the exparte decree. The
application filed by the respondent for amendment was ordered and in
view of the same, I.A.No.844 of 2012 is maintainable. As far as
I.A.No.530 of 2014 is concerned, the same was filed with a defect of not
filing vakalat. When the defect was found out, the same was rectified by
the respondent. The defect was only procedural and therefore, it will not
affect the substantial right of the respondent and said defect also is now
rectified. The learned Judge has considered all the materials and has
given valid reason for dismissing both the applications and prayed for
dismissal of the Civil Revision Petitions.
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C.R.P.(NPD).Nos.4742 & 4743 of 2017
9.Heard the learned Senior Counsel appearing for the petitioners as
well as the learned counsel appearing for the respondent and perused the
entire materials available on record.
10.From the materials on record, it is seen that the petitioners have
filed suit for specific performance of agreement of sale against the father
of the respondent and the said suit was decreed against the father of the
respondent, by an exparte decree dated 17.04.2008. The petitioners also
filed E.P.No.28 of 2008 and got the sale deed executed in their favour.
While the proceedings in the E.P.No.10 of 2012 for taking possession of
the property was pending, the defendant died. The respondent, who is son
of the deceased defendant, filed 4 applications through his Power Agent
viz., Harish G.Dave, to recognize Harish G.Dave, as power agent of the
respondent, to implead the respondent by power agent Harish G.Dave, as
party 2nd defendant in the suit and to condone the delay of 1445 days in
filing the application for setting aside the exparte decree passed on
17.04.2008. The said applications were numbered as I.A.Nos.842 to 844
of 2012 and application filed to set aside the exparte decree dated
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C.R.P.(NPD).Nos.4742 & 4743 of 2017
17.04.2008 was unnumbered. While the applications were pending, the
respondent who came down from Muscat, decided to prosecute the
proceedings himself. In view of the same, the counsel for the power of
agent made endorsement in I.A.Nos.842 and 843 of 2012, that those
applications are not pressed, as respondent himself will be filing
application under Order XXII Rule 3 of C.P.C. to get himself impleaded
as party defendant. In view of such endorsement, those applications were
dismissed as withdrawn. After such order of dismissal, the respondent
filed I.A.No.530 of 2014 under Order XXII Rule 3 of C.P.C. to implead
him as 2nd defendant in the suit. While filing the said application, the
respondent did not file vakalat along with the said application. The
Court, without properly verifying the said application and without
returning the application for not filing vakalat, numbered the application
as I.A.No.530 of 2014. When the said defect was found out, as per order
of the Court, the respondent filed vakalat and the same was taken on file.
11.It is the contention of the learned Senior Counsel appearing for
the petitioners that as per Order III Rule 4 of C.P.C., unless the party
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appoints pleader by a document in writing, the pleader cannot appear on
behalf of the respondent and application is to be rejected as per Order VII
rule 11 (d) of C.P.C. The said contention is not acceptable in view of
Order IV of C.P.C. As per Order IV Rule 1(2) of C.P.C., every application
must be applied with rule contained in Orders VI and VII of C.P.C., so far
as they are applicable. As per Section 141, the procedure provided in
C.P.C. with regard to suits shall be followed as far as it can be made
applicable in all the proceedings in any Court of civil jurisdiction. In
view of Section 141 of C.P.C., both Order III and Order IV C.P.C., are
applicable to present applications. When a plaint or application is filed
without complying the requirement contained in Orders VI and VII of
C.P.C., the same will not automatically result in rejection or dismissal.
An opportunity must be given to the party to rectify the mistake and
when the defect is rectified, the plaint or application is deemed to be
properly instituted. The procedural defects not going to root of the matter
should not be permitted to defeat the cause of justice and dismissal on
mere technicalities is not proper. In the present case, when the respondent
filed application to implead himself as 2nd defendant, the same was not
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properly presented, i.e., vakalat was not filed along with the application.
The Court ought to have returned the application, directing the
respondent to rectify the defect. Without doing so, the Court, by mistake
numbered the application. After the defect was found out, the same was
rectified. In view of the same, I.A.No.530 of 2014 cannot be rejected as
per the provisions of Order VII Rule 11 (d) of C.P.C. The application has
to be considered on merits and order is to be passed in accordance with
law. There is no error in the reasoning of the learned Judge, dismissing
I.A.No.1017 of 2017, warranting interference by this Court.
12.For the above reason, the C.R.P.No.4742 of 2017 is liable to be
dismissed and is hereby dismissed.
13.As far as C.R.P.No.4743 of 2017 is concerned, it relates to
I.A.No.844 of 2012, filed by the power agent, to condone the delay in
filing the petition to set aside the exparte decree. When the respondent
decided to prosecute the matter himself, the application filed by the
power agent to recognise him as power agent of the respondent was
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dismissed as not pressed. Once the power agent was not recognized as
agent of respondent, the application filed by the power agent of
respondent is not maintainable. In the present case, after I.A.No.842 of
2012 to recognize the power of attorney as agent of the respondent was
dismissed, the application in I.A.No.844 of 2012 filed to condone the
delay in filing the application to set aside the exparte decree also ought to
have been dismissed. The respondent filed application to amend
I.A.No.844 of 2012. The learned Judge allowed the application only with
regard to amendment of cause title and the affidavit filed by the power
agent in the application was not modified. In view of the same, the said
application cannot be proceeded with by the respondent based on the
affidavit filed by the power of agent. The learned Judge failed to consider
that Harish G.Dave, the power agent is no longer power agent of
respondent and affidavit filed by the power agent cannot be acted upon.
In view of the same, the impugned order of the learned Judge made in
I.A.No.1019 of 2017 is set aside. I.A.No.1019 of 2017 is allowed and
I.A.No.844 of 2012 is rejected. The learned Judge is directed to return
the unnumbered application filed to set aside the exparte decree by power
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agent. It is open to the respondent to file fresh application to set aside the
exparte decree along with application to condone the delay in filing the
petition to set aside the exparte decree and satisfy the Court that delay is
not wilful and it has to be condoned. The learned Judge is directed to
consider the same in accordance with law, if such an application is filed.
With the above directions, C.R.P.No.4743 of 2017 is allowed. No
costs.
01.11.2021
Index :: Yes/No
gsa
To
The Principal District Judge,
Kancheepuram,
Chengalpet.
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C.R.P.(NPD).Nos.4742 & 4743 of 2017
V.M.VELUMANI, J.
gsa
C.R.P.(NPD)Nos.4742 & 4743 of 2017
01.11.2021
https://www.mhc.tn.gov.in/judis/
