Delhi District Court
(Through Sh. Pradeep Kumar Jain vs Sh. Puran Chauhan on 24 April, 2015
IN THE COURT OF SH. KULDEEP NARAYAN
ADDITIONAL DISTRICT JUDGE OF SHAHDARA DISTRICT
AT KARKARDOOMA COURTS: DELHI.
RCA no. 11/2015
Unique I.D No. 02402C0117832015
Sh. Nitin Garg
S/o Late Mukesh Garg
R/o A-108, Ashok Nagar,
Delhi-110093
(Through Sh. Pradeep Kumar Jain,
duly appointed/constituted attorney)
............... Appellant
Versus
Sh. Puran Chauhan
Flat no. 1243, Third Floor,
DDA Janta Flats, GTB Enclave,
Nand Nagri, Delhi-110093.
........ Respondent
Appeal under Section 96 CPC against the Order dated 23/02/2015
passed by Ld. Senior Civil Judge (Shahdara), Karkardooma, Delhi in
Suit no. 173/2014 titled as 'Sh. Nitin Garg v. Sh. Puran Chauhan'.
Date of Institution : 08/04/2015
Order reserved on : 08/04/2015
Order passed on : 24/04/2015
Decision : Appeal dismissed.
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JUDGMENT
This appeal is directed against the order dated 23/02/2015 passed by Ld. Senior Civil Judge (Shahdara), Karkardooma, Delhi in a suit for recovery of possession, arrears of rent, permanent injunction & mandatory injunction bearing Suit no. 173/2014 titled as 'Sh. Nitin Garg v. Sh. Puran Chauhan' (for short 'the impugned order')
2. By way of impugned order, the Ld. Trial court dismissed the application under Order 15 CPC as well as the suit, holding that Sh. Pradeep Kumar Jain, who filed the suit as an attorney of the plaintiff Sh. Nitin Garg was having no locus standi to file the suit.
3. Feeling aggrieved, Sh. Pradeep Kumar Jain claiming himself to be a duly appointed attorney of Sh. Nitin Garg preferred the present appeal.
4. I heard arguments on the admission of the appeal.
5. During the course of arguments, counsel for appellant referred to Sections 50, 91 & 92 of the Indian Evidence Act, 1872 in support of his contentions.
6. The grounds of appeal preferred are that :-
a) that the impugned order is against the facts and law as well as the documents filed on record and was passed by the Ld. Trial court without application of judicial mind which has RCA no.11/2015 Sh. Nitin Garg v. Sh. Puran Chauhan Page no. 2 of 8 resulted into gross miscarriage of justice;
b) that as per the statement of Sh. Nitin Garg recorded under Order 10 Rule 1-4 CPC, it is clear that he never terminated General power of attorney executed in favour of Sh. Pradeep Kumar Jain.
c) that even if it is presumed that the Ld. Trial court treated the issue of locus standi of the attorney as a preliminary issue, as per Order 14 Rule 2 (2) CPC only those issues can be tried as preliminary issue which pertains to pure question of law and relates to jurisdiction of the court or to a bar to the suit created by any law in force.
d) that the Ld. Trial court gravely erred by not seeing the defence of the respondent and thereby ignored the mandate laid down in Maria Mergarida Sequeria Fernandes & ors. v. Erasmo Jack De Sequeria (Dead) through LRs. in Civil Appeal no.2968/2012 & A. Shanmugaam v. Ariya Kshqatriya Rajakula Vamsathu Madalaya Nandhavana Paripalanai Sangam Civil Appeal no.4012-13/2012 passed by Hon'ble Supreme Court.
e) that the Ld. Trial court is not justified in giving its findings in paragraphs no. 14, 19 & 27 of the impugned order.
Hence, the impugned order is liable to be set aside.
7. Having heard the submissions and perused the relevant provisions, I do not find any merits in the contentions of the counsel for appellant.
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8. The aforesaid suit bearing no. CS-173/2014 was filed by Sh. Pradeep Kumar jain claiming to be the attorney of the plaintiff. The suit was filed against one Sh. Puran Chauhan for recovery of possession, arrears of rent, permanent and mandatory injunction in respect of a Plot no. 1243, Third Floor, DDA Janta Flats, GTB Enclave, Nand Nagri, Delhi-110093 with roof rights (for shot 'the suit property'). It was claimed that the suit property was let out to the defendant at a monthly rent of Rs.5,000/- w.e.f. January, 2014. Subsequently, the tenancy of the defendant was terminated vide legal notice dated 28/03/2014 and on his failure to vacate the same, the suit was filed.
9. In the written statement, the defendant denied the claim of the plaintiff, claiming himself to have purchased the suit property from one Sh. Jagdish Rana by way of power of attorney documents. It was also stated that the named plaintiff Sh. Nitin Garg did not file the suit nor gave any authority to Sh. Pradeep Kumar Jain to file the case on his behalf.
10. Ld. Trial court issued the court notice to named plaintiff-Sh. Nitin Garg, who appeared before the court and was examined under Order 10 Rule 1 CPC on 19/11/2014. In his examination, Sh. Nitin Garg categorically stated to have sold the suit property to Sh. Pradeep Kumar Jain vide power of attorney documents. He further stated that Sh. Pradeep Kumar Jain had no authority to file the aforesaid suit on his behalf and if he had any interest, he should have filed the suit in his own name. In view of the statement of Sh. Nitin Garg, the Ld. Trial court after duly RCA no.11/2015 Sh. Nitin Garg v. Sh. Puran Chauhan Page no. 4 of 8 considering the submissions as well as the relevant law on the subject held that Sh. Pradeep Kumar Jain had no locus standi to file or to continue with the suit and dismissed the same.
11. At the outset, it is relevant to refer Section 5 of the Specific Relief Act, 1963, which is as under:-
"Recovery of specific immovable
property.-
A person entitled to the possession of
specific immovable property may recover it in the manner provided by the Code of Civil Procedure, 1908 (5 of 1908)."
12. In view of the above mentioned provision, in order to succeed in a suit, the plaintiff has to show that he is a person entitled to get possession of the immovable property. Before the Ld. Trial court, the suit no. 173/2014 was filed by Sh. Pradeep Kumar Jain claiming to be the attorney of the plaintiff namely Sh. Nitin Garg, which indicate that the person entitled to get possession of the suit property was Sh. Nitin Garg and Sh. Pradeep Kumar Jain was acting merely as an attorney of Sh. Nitin Garg. In his examination under Order 10 Rule 1 CPC, Sh. Nitin Garg categorically denied to have ever given any authority to Sh.Pradeep Kumar Jain for filing the aforesaid suit on his behalf. Rather, he stated to have sold the suit property to Sh. Pradeep Kumar Jain vide power of attorney documents. Therefore, it is clear that the suit was not filed by Sh. Nitin Garg but by Sh. Pradeep Kumar Jain, naming Sh. Nitin Garg as the plaintiff.
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13. As far as the ground of appeal pertaining to Order 14 Rule 2 (2) CPC is concerned, suffice it to note that it was laid down in Abdul Rehman v. Prasony Bai AIR 2003 SC 718 that the issue of maintainability of the suit can be adjudicated upon as preliminary issue. It was further laid down that such issues, in fact, when facts are admitted, ordinarily should be decided as preliminary issue. Therefore, I do not find any merit in the contentions of the counsel for appellant that the Ld. Trial court should not have decided the issue of maintainability of the suit on the locus standi of the attorney as preliminary issue. This contention is accordingly devoid of merits and is rejected.
14. With regard to the objection raised pertaining to the statement of Sh. Nitin Garg, recorded under Order 10 Rule 1 CPC that he never terminated the GPA executed in favour of Sh. Pradeep Kumar Jain, a perusal of the impugned order reveal that the Ld. Trial court deliberated upon all the contentions of the counsel for the plaintiff and duly considered Section 202 & 207 of the Indian Contract Act, 1872 to come to the conclusion that for revocation of the GPA simplicitor, no prior notice was required and the examination of Sh. Nitin Garg under Order 10 CPC in itself is a notice by way of his conduct. The Ld. Trial court also relied on Corporation Bank v. Lalita AIR 1994 Kant 133 for revocation / termination of the GPA at the will of principal /donor.
15. The reasons given by the Ld. Trial court in impugned order to come to the conclusion that the attorney-Sh. Pradeep Kumar Jain was not RCA no.11/2015 Sh. Nitin Garg v. Sh. Puran Chauhan Page no. 6 of 8 authorized to continue with the suit are justified and are in accordance with the law of the land on the subject. Further, the reliance placed by the counsel for appellant on Maria Mergarida Sequeria Fernandes case (supra) and A. Shanmugaam case (supra) is of no help to him as in both the judgement certain guildlines were laid down to be followed by the court when dealing with the civil cases of possession of the immovable properties. Both the aforesaid judgement do not pertain to the issue of locus standi of the plaintiff to prosecute a suit for recovery of possession of immovable property and are accordingly not applicable to the facts of the present case.
16. I also do not find any merit in the contentions of the counsel for the appellant that the Ld. Trial court was not justified in giving its finding in paragraphs no. 14, 19 & 27 of the impugned order. A perusal of the impugned order clearly reveal that each and every contentions of the counsel for appellant was considered by the Ld. Trial court and after relying on the relevant provisions of law, impugned order was passed dismissing the suit. The impugned order is well reasoned one and no illegality or infirmity can be found with the findings of the Ld. Trial court. The reliance placed by the counsel for appellant on Sections 50, 91 & 92 of the Indian Evidence Act, 1972 is without any basis and is not meritorious.
17. Appeal is devoid of any merits and is accordingly dismissed with costs.
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18. Decree sheet be prepared.
19. File be consigned to record room.
20. Let a copy of this judgement be sent to the Ld. Trial Court for records.
Announced in the (KULDEEP NARAYAN)
open court Additional District Judge:
on 24/04/2015 Shahdara District:
Court no. 11
Karkardooma, Delhi.
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