Karnataka High Court
Laxmi Bhakta vs K P Gunduraj on 10 April, 2017
Author: L.Narayana Swamy
Bench: L. Narayana Swamy
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 10TH DAY OF APRIL, 2017
BEFORE
THE HON'BLE MR. JUSTICE L. NARAYANA SWAMY
REGULAR FIRST APPEAL NO.1308 OF 2005
BETWEEN:
1. SMT. LAXMI BHAKTA
W/O LATE M NARASIMHA BHAKTA
AGED ABOUT 48 YEARS
2. SRI.M RAMA BHAKTA
AGED ABOUT 33 YEARS
3. SMT.M DIVYA BHAKTA
AGED ABOUT 31 YEARS
SL.NO.2 AND 3 ARE THE CHILDREN OF
LATE M.NARASIMHA BHAKTA,
R/AT C/O SANJEEVINI MEDICALS,
NEAR LADY GOSHEN HOSPITAL,
MAIDAN ROAD
MANGALORE - 575 001 ... APPELLANTS
(BY SRI.SACHIN B.S. ADV.)
AND:
1. K P GUNDURAJ
S/O K.K PUTTEGOWDA
AGE MAJOR
R/O KAGARI VILLAGE,
HETHOOR HOBLI
PIN - 573 123
2
SAKALESHPUR TALUK
HASSAN DISTRICT P.O
2. D P CHANDRASHEKAR
S/O D.N PUTTASWAMY GOWDA
AGE: MAJOR
R/O HANGADAHALLA VILLAGE,
HETHOOR HOBLI, PIN - 573 123
SAKALESHPUR TALUK
HASSAN DISTRICT P.O
3. D M PARAMESHWARA GOWDA
S/O D NOGANNA GOWDA
AGE MAJOR
R/O HANGADA HALLA VILLAGE,
SHETHAN HOBLI
SAKALESHPUR TALUK
HASSAN DISTRICT P.O., PIN - 573 201
4. JEENAM DAWOOD
W/O LATE DADA HAJI IBRAHIM HELARI
AGE: MAJOR
R/O BALMATTA,
MANGALORE
D.K DISTRICT - 575 001
5. THE PRIMARY LAND DEVELOPMENT BANK LTD
SAKALESHPUR
HASSAN DISTRICT - 573 201 ... RESPONDENTS
(BY SRI.A KRISHNA BHAT, ADV. FOR R1 TO R3,
SRI.NANJUNDAPPA.S. ADV. FOR R5)
THIS RFA IS FILED U/S.96 OF CPC AGAINST THE
JUDGMENT AND DECREE DT.29.6.2005 PASSED IN
O.S.NO.77/95 ON THE FILE OF THE PRL. CIVIL JUDGE (SR.DN),
HASSAN, DISMISSING THE SUIT FOR DECLARATION AND
POSSESSION.
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THIS APPEAL COMING ON FOR ORDERS THIS DAY, THE
COURT DELIVERED THE FOLLOWING:
JUDGMENT
Plaintiff is the appellant herein and he has challenged the judgment dated 29th June 2005 passed in suit OS No.77 of 1995 by the Principal Civil Judge (Sr.Dn.), Hassan. Plaintiff- appellants filed a suit for declaration and possession and the same came to be dismissed. Against the same, this appeal is preferred.
2. The facts leading to this case are that the husband of respondent No.4 herein had purchased the property and he being the owner of the property, necessary entries are made into the revenue records. After his death, his wife-respondent No.4 succeeded to the property. An irrevocable General Power of Attorney has been executed in favour of Shameen Ramlan on 7th April 1982; and on the basis of the General Power of Attorney, the property in question has been sold in favour of the husband of the plaintiff-the first appellant herein on 23rd September 1982. The respondent No.4 thereafter, cancelled the General Power of 4 Attorney by issuing paper publication as per Exhibit P6 dated 01st June 1982 and the cancellation has been with effect from 12th June 1982. Thereafter, the defendant No.4-the fourth respondent herein has sold the property to respondents No.1 to 3 on 4th July 1982. During his lifetime, the husband of the plaintiff No.1 and father of plaintiffs No.2 and 3, filed a suit in OS No.222 of 1987 for declaration and injunction. The suit came to be dismissed for non-prosecution. Thereafter, after the death of the husband of the first plaintiff, the present suit has been filed.
3. After the issuance of service of notice, the defendant entered appearance and additional written statement has been filed. He has contended that the suit has to be dismissed under Order IX Rule 9 of the Code of Civil Procedure and the sale executed in favour of the respondents No.1 to 3 has not been challenged. Further, the irrevocability of the General Power of Attorney has not been established. In the pleadings, the interest of the General Power of Attorney has not been established and the plaintiff has not chosen to examine the defendant No.4 and also the General Power of Attorney holder Shameen Ramlan. 5 The grounds urged by the appellant is as per Sections 203 and 204 of the Indian Contract Act, 1872 once the transaction has taken place, that is to be protected; and secondly, as per cancellation, the General Power of Attorney has to be informed or intimated by providing an opportunity. In this case, either of the things has not been done. The reasons for dismissing the suit has not been assigned properly. On this ground also, the appellant sought setting aside of the order passed by the court below. A prayer is also made to allow the suit.
4. The learned counsel for the respondents submits to dismiss the appeal. He has taken a specific ground that the husband of the first plaintiff had filed a suit, which was dismissed for non-prosecution and once the suit is dismissed, the plaintiff herein should have made application for recalling the said order. Further, the dismissal of the Suit in OS No.222 of 1989 has not been referred; and under the circumstance, the plaintiff has not approached the Court with clean hands. On this ground also it is to be dismissed. The learned counsel for the respondent has referred to decisions in the case of CORPORATION BANK v. 6 LALITHA H. HOLLA reported in ILR 1993 KAR 3260; and in the case of D. SANGYA NAIK v. DEPARTMENT OF TELECOM, NEW DELHI AND OTHERS reported in ILR 2005 KAR 1874.
5. Heard the learned counsel for the parties. The points that arise for consideration are-
(i) Whether the appellant has proved the fact that the suit is not hit by Order IX Rule 9 of the Code of Civil Procedure?
(ii) Whether the General Power of Attorney holder has got interest in the property for the purpose of Section 202 of the Indian Contract Act?
(iii) Whether the appellant has proved that the General Power of Attorney holder has valid right to execute the sale deed after the General Power of Attorney has been cancelled as per Exhibit P6?
5. My findings are as follows for the following reasons:
The undisputed facts are that the husband of the plaintiff Mr. Narasimha Bhakta filed suit OS No.222 of 1989 for declaration and possession. The said suit was dismissed for non-7
prosecution. On the basis of the submissions made by the respondent, the court below has summoned the entire file and the file was secured at the instance of the plaintiff only. It was ascertained from the file that the suit was filed for declaration declaring that the said Narasimha Bhakta was owner of the suit schedule property and it was also sought for permanent injunction. It was further asserted that the suit, admittedly, was dismissed for default. As per the provisions of Order IX Rule 9 of the Code of Civil Procedure, when once the suit is dismissed, the plaintiff shall be precluded from filing fresh suit in respect of the said cause of action unless the order of dismissal is set aside.
The specific finding given by the court below further examined in the light of the judgments referred by the learned counsel for the plaintiff. Before that, whether these plaintiffs who were not parties to the suit filed by Narasimha Bhakta, can prosecute the present suit. Order IX Rule 9 of the Code of Civil Procedure specifically clarifies that the plaintiffs or the legal representatives and assignees.8
6. In the case of D. SANGYA NAIK (supra), at paragraph 9 of the judgment, it is held as follows:
"9. These Rules provide for restoration of suits dismissed under Rule 8 for non-appearance. It also mandates that the plaintiff shall be precluded from bringing a fresh suit in respect of the same cause of action. It enables him to apply to the same Court which dismissed the suit for non-appearance for setting aside the order of dismissal on his showing sufficient cause for his non-appearance when the suit was called on for hearing. The dismissal of the suit under Rule 8 does not operate as "res judicata". It only imposes a disability on the plaintiff. This Rule is based on sound public policy. The principle underlying this provision is that a litigant who comes to Court with a cause should agitate the matter with due diligence and take a decision on merits, so that a finality is reached. Otherwise, there would not be any finality, and the opposite party could be harassed endlessly, by allowing the proceedings to be dismissed for non-prosecution and re-agitate the matter time and again at his convenience and leisure. Then this judicial process would become an instrument of oppression rather than a means to resolve disputes in a civilized way. Therefore, it is a rule of estoppel, which finds a statutory recognition in order IX Rule 8 CPC, which prevents the party from filing a suit on the same cause of action, if the earlier suit is dismissed for non-appearance. These provisions would 9 also equally apply to the writ proceedings. When the earlier writ petition was dismissed for non-appearance of the petitioner on the day the case was set down for hearing, the petitioner shall be precluded from bringing a fresh writ petition on the same cause of action challenging the very same order which was the subject matter of the said proceedings."
7. In CORPORATION BANK (supra) at paragraph 13 and 14 it is observed thus:
"13. .....Mere use of the word "irrevocable" in a power of attorney will not make the power of attorney "irrevocable"
unless the terms thereof disclose that it created or recognised an agency coupled with interest in favour of the agent. For example, a power of attorney simpliciter, which merely authorises an agent, to do certain acts, in the name of or on behalf of the executant can be revoked or cancelled by the executant at any time, in spite of the instrument stating that the power of attorney is irrevocable. On the other hand, a power of attorney executed in favour of an agent, recording or recognising an interest of the agent/attorney, in the property which is the subject-matter of the agency, cannot be revoked or terminated, even if the instrument does not state specifically that it is irrevocable, as then, it would be a power coupled with an interest (see section 202 of the Contract Act, 1872). In this context, reference may be 10 made to the following passage from the decision of the Andhra Pradesh High Court in M. John Kotaiah v. A. Divakar, :
"From the passages quoted above, it is clear that if on a construction of the power of attorney and in the light of the facts and circumstances obtaining in the case, the document does not prima facie satisfy the requirements for the creation of a power coupled with interest, then merely because the document itself describes the agency to be an irrevocable one, it does not become an irrecoverable agency. The Indian Contract Act also provides that in cases where the period of agency is prescribed and the agency is not, in law irrevocable, then the agent may have a cause of action against the principal for other remedies, in case the agency is revoked within the period. But that does not mean that an agency described as being irrevocable is to be treated as an irrevocable (one) if, in law, it does not satisfy the requirements of an irrevocable power of attorney".
19. In Bowstead on Agency (14th edition), at page 423, succinctly states when an authority given to an agent is irrevocable. The relevant portion reads thus :
"(1) Where the authority of an agent is given by deed, or for valuable consideration, for the purpose of effectuating any security, or of protecting or securing any interest of the agent, it is irrevocable during the subsistence of such security or interest. But it is not irrevocable merely because the agent has an interest in the exercise of it, or has a special property in, or lien for advances upon, the subject-matter of it, 11 the authority not being given expressly for the purpose of securing such interest or advances.
(2) Where a power of attorney, whenever created, is expressed to be irrevocable and is given to secure a proprietary interest of the donee of the power, or the performance of an obligation owed to the donee, then, so long as the donee has that interest, or the obligation remains undischarged, the power if irrevocable."
"The mere fact that a power is declared in the instrument granting it to be irrevocable does not make it so; irrevocability requires something further to be irrevocable, the authority must be conferred as protection of the agent's interest."
8. From the above judgment it is clear that there is no such power of attorney like "irrevocable power of attorney". Power of Attorney is subjected to revocability. It is for the master to decide and it is also for him to assign the terms and conditions to act by his attorney. It is not something like a transfer of property, which is absolute in nature. As it is held by the Courts in the cases referred earlier, unless the interest is established, normally the instrument is revocable.
9. Section 202 of the Indian Contracts Act reads thus: 12
202. Termination of agency, where agent has an interest in subject-matter.--Where the agent has himself an interest in the property which forms the subject-matter of the agency, the agency cannot, in the absence of an express contract, be terminated to the prejudice of such interest. --Where the agent has himself an interest in the property which forms the subject-matter of the agency, the agency cannot, in the absence of an express contract, be terminated to the prejudice of such interest."
Illustrations:
(a) A gives authority to B to sell A's land, and to pay himself, out of the proceeds, the debts due to him from A. A cannot revoke this authority, nor can it be terminated by his insanity or death."
(b) A consigns 1,000 bales of cotton to B, who has made advances to him on such cotton, and desires B to sell the cotton, and to repay himself out of the price the amount of his own advances. A cannot revoke this authority, nor is it terminated by his insanity or death."
10. The illustration given therein that "A gives authority to B to sell A's land, and to pay himself, out of the proceeds, the debts due to him from A. A cannot revoke this authority, nor can it be terminated by his insanity or death." When we read the 13 provisions along with examples, it is very clear that an interest, if it is established by the holder of the General Power of Attorney, then on the basis of the facts and evidence, it is for the Court to hold whether the general power of attorney is 'revocable' or 'irrevocable'. In this regard, though the appellant has taken shelter under Sections 202, 203 and 294 of the Indian Contracts Act, but has failed to prove the test. He has not examined Respondent No.4 herein who had executed the power of attorney Exhibit P6 in favour of Shameen Ramlan, nor has he summoned the persons in whose favour the general power of attorney is executed by Shameen Ramlan. In the absence of evidence of these two persons, it remains undisputed that the interest involved in the subject matter has not been established by the appellant. When the interest in the instrument has not been established, it is to be legally inferred that the document executed by respondent No.4 in favour of Shameen Ramlan is revocable. The Trial Court, has also made a reference to the judgment of this Court in the case of Corporation Bank (supra). 14
11. The respondent-defendant also referred the judgment in the case of SURAJ RATTAN THIRANI AND OTHERS v. AZAMBAD TEA CO. LTD. AND OTHERS reported in AIR 1965 SC 295 and placed reliance on paragraph No.16 and 28 of the judgment.
12. The purpose and object in putting the condition under Order IX Rule 9 of the Code of Civil Procedure is to preclude filing of repeated and successive suits. Once the issues have been settled by the Court, the parties to the suit have to rest with, with the judgment and decree in their favour. If the parties are allowed to file successive petitions one after the other, there is no end for it and the settled cases will go in unsettled by the respective parties. Under these circumstances, it is to be held that the appellant-plaintiff has failed to prove the fact that the present suit is hit by Order IX Rule 9 of the Code of Civil Procedure. But it is made clear on the basis of evidence and pleadings that the present suit is barred by Order IX Rule 9 of the Code of Civil Procedure.
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13. In the case of SURAJ RATTAN THIRANI AND OTHERS (supra) in the course of judgment at paragraph 24, it has been held that "in our opinion the word plaintiff in the Rule should obviously, in order that the bar may be effective, include his assigns and legal representatives." This judgment is very clear, which precludes this plaintiff to prosecute the said case. Accordingly, the dismissal is sound and proper.
14. The submission of the appellant is that the transaction is protected by virtue Sections 203 and 204 of the Indian Contract Act. The said submission cannot be accepted and has to be rejected for the reason that the General Power of Attorney which was executed on 7th April 1982; and the same was cancelled by paper publication on 1st June 1982 with effect from 12th June 1982. The said date is to be taken into account to examine whether the transaction made, viz. selling the property in favour of the husband of the plaintiff is to be protected or not? By the time the property was sold to Narasimha Bhakta on 23rd September 1982, the General Power of Attorney dated 7th April 1982 had stood cancelled and virtually after the cancellation of 16 the General Power of Attorney, Shameen Ramlan has sold the property in favour of the plaintiff. Hence, there is no valid transaction of the property, i.e. in the eye of law, valid transfer of property. Hence, the said submission cannot be accepted.
15. Whether the cancellation of General Power of Attorney is to be informed to the person in whose favour it is executed is concerned, it is not relevant. If at all, for the said purpose, it is to be done by Shameen Ramlan, in whose favour the General Power of Attorney was executed and later on stood cancelled. Hence, it is not available to the plaintiff-appellants herein, to canvas the same.
16. Further, the submission of the appellants that the General Power of Attorney, if it is unequivocally examined it establishes the interest in favour of Shameen Ramlan, cannot be accepted. Whether it is 'revocable' or 'irrevocable'? whether it is right or not? always is a disputed fact. In order to elicit the fact of interest, the burden was on plaintiff to establish. It was for him to examine either Respondent No.4 who has executed the power of attorney or Shameen Ramlan in whose favour the 17 General power of attorney was executed. None of them have been examined. Notwithstanding the General Power of Attorney, I have gone through the Power of Attorney in order to find out whether the interest is involved in the document and I find that no such interest was transferred in favour of Shameen Ramlan. Under these circumstances, none of the grounds taken by the appellants have been substantially established. In that view of the matter, the appeal has to be dismissed and accordingly it is dismissed. The order of the Trial Court is confirmed.
Sd/-
JUDGE lnn