Delhi District Court
Sh. Nitin Garg vs Sh. Puran Chauhan on 23 February, 2015
IN THE COURT OF SHRI NARESH KUMAR LAKA
SENIOR CIVIL JUDGE-CUM-RENT CONTROLLER,
DISTRICT SHAHDARA,
KARKARDOOMA COURTS, DELHI
CS No. 173/14
In the matter of:
Sh. Nitin Garg
.......Plaintiff
Vs.
Sh. Puran Chauhan
........Defendant
Dated: 23.02.2015
ORDER
Vide this order, I shall decide the issue of maintainability of this case in view of raising objection on the locus standi of Shri Pradeep Kumar Jain (attorney of plaintiff) and the application filed under Order 15 CPC on behalf of plaintiff seeking judgment on the ground that there is no issue which requires trial.
2. Arguments on the said issue and application were heard from Shri Mohit Kumar, learned counsel for the attorney and Shri Ravi Kumar, learned counsel for the defendant at length. File perused.
3. The present suit has been filed in the name of Shri Nitin Garg (by showing him as plaintiff) through attorney Sh. Pradeep Kumar Jain against defendant Puran Chauhan for the reliefs of CS No. 173/14 Page No. 1 of 14 Nitin Garg vs. Puran Chauhan recovery of possession, arrears of rent, permanent injunction and mandatory injunction. The facts, as set out, in the plaint are that the plaintiff is the registered owner of the plot no. 1243, 3rd floor, DDA Janta Flats, GTB Enclave, Delhi with roof rights (suit property) and it is claimed that the suit property was let out to the defendant on a monthly rent of Rs. 5,000/- w.e.f. January 2014 and the tenancy was oral on month to month basis. It is claimed that the plaintiff gave the upper portion of the said suit property to Smt. Pushpa Rawat (another tenant) to which the defendant raised objections and started quarreling and eventually the matter was reported to the police. Thereafter the plaintiff terminated the tenancy of the defendant vide legal notice dated 28.03.2014 and directed the defendant to vacate the said suit premises within 15 days. It is alleged that the defendant sent a fake reply to the said notice dated 14.04.2014 and stopped paying rent from April 2014.
4. In the written statement, the defendant completely denied the claim/suit of the plaintiff and it is claimed that the defendant is not the tenant in the suit property rather he had purchased it from one Sh. Jagdish Rana on 06.03.2014 by way of GPA, Agreement to sell, Will, Possession Letter, Receipt etc. It is also stated that the defendant is the lawful owner of the suit property and the plaintiff Shri Nitin Garg has not filed this suit nor gave any authority to Sh. Pradeep Jain to file this case. It is alleged that Shri Pradeep Jain has filed this false case with a mala fide intention and nefarious design to grab the aforesaid CS No. 173/14 Page No. 2 of 14 Nitin Garg vs. Puran Chauhan property since he is in possession of one of the title documents and on the basis of said document, he had also applied for electricity connection. The defendant also disclosed that against the fraudulent act of Shri Pradeep Jain even an FIR no. 240/14 under Section 420/468/471 IPC was also registered at PS GTB Enclave on 19.04.2014.
5. Apparently the present suit has been filed in the name of Sh. Nitin Garg (plaintiff) through his attorney Sh. Pradeep Kumar Jain. In the present suit, it is stated that Sh. Pradeep Kumar Jain is the duly appointed attorney of the plaintiff and accordingly the attorney is empowered to sign, verify and file this case and to do all such acts which are necessary for the proper conduct of this case. No doubt an agent has a right to act on behalf of principal but such right is exercisable to the extent for which he is authorised to act and not otherwise.
6. Now the question arises whether Shri Pradeep Kumar Jain has been authorized to sign, verify or institute this suit on behalf of Nitin Garg.
7. The entire case of the attorney is based on the GPA in question which has been admittedly executed by Shri Nitin Garg. From the perusal of the said GPA, it is clear that Shri Nitin Garg CS No. 173/14 Page No. 3 of 14 Nitin Garg vs. Puran Chauhan authorised his attorney Shri Pradeep Jain to let out the said property and to do all such acts which are necessary pertaining to the said property including filing of a suit. In that way, the attorney had a right to let out the said property and to file present suit for recovery of its possession and other reliefs from a tenant.
8. When the defendant raised serious objections on the locus of Sh. Pradeep Jain, this court issued a court notice to the plaintiff, namely, Nitin Garg. After receiving of said notice, Shri Nitin Garg appeared before this court and accordingly in order to clarify the factual position, Shri Nitin Garg was examined by this court under Order 10 Rule 1-2 CPC on 19.11.2014. On his examination, in his statement, Shri Nitin Garg stated that he had sold the suit property to Shri Pradeed Jain and in this regard he had executed GPA, Agreement to sell, payment receipt, affidavit, will and possession letter all dated 02.06.2013 (copy of such documents were placed on record by him). He further stated that Shri Pradeep Kumar Jain has no authority to file this case on his behalf and if he (Pradeep) has any interest, he could have filed the case in his name.
9. Now a further question arose, under these circumstances of the case when Shri Nitin Garg refutes his authority, whether Shri Pradeep Jain has any right or locus standi to pursue further this case.
CS No. 173/14 Page No. 4 of 14Nitin Garg vs. Puran Chauhan
10. The learned counsel for the attorney vehemently argued that once Shri Nitin Garg executed a GPA in favour of Shri Pradeep Jain, now Shri Nitin Garg cannot withdraw/cancel or disobey said GPA as per Section 202 of the Indian Contract Act, 1872 and even if the same can be revoked the same cannot be done without giving a prior notice to the donee/attorney.
11. So far as Section 202 of the Indian Contract Act, 1872 is concerned, the same is reproduced as under:
"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."
12. On the basis of aforesaid Section 202, the learned counsel for the attorney argued that once a GPA has been executed in which an interest has been created in favour of attorney/agent, the same cannot be cancelled or revoked. As far as the purport of Section 202 of the Contract Act is concerned, I agree with the aforesaid argument but in the present case, it is nowwhere the case of the attorney that Shri Nitin Garg has sold the property to him and rather he relied on GPA only.
13. Although the defendant and Shri Nitin Garg placed on CS No. 173/14 Page No. 5 of 14 Nitin Garg vs. Puran Chauhan record various documents to show that Shri Nitig Narg had sold suit property to Shri Pradeep Jain but it is the settled law that in order to seek a relief, the plaintiff should approach courts of law with clean hands but he did not disclose such facts in his plaint. Moreover, in order to see the maintainability and locus standi of the attorney, this court has to examine the plaint first and not the stands/documents of the defendant. In other words, the attorney has to stand on his feet first to show as to how he has any right or authority to file or pursue this case.
14. After disclosing the facts about the transfer of property in favour of the defendant, the attorney admitted subsequently in his replication (para no. 3) that he had purchased the said property from Shri Nitin Garg. But this court cannot allow attorney to treat himself at one point of time as attorney and at another point of time as principal. In law, a person can either be a principal or an agent.
15. In the present case, the attorney referred to various allegations which were performed in the name of plaintiff like letting out the suit premises at the rate of Rs. 5,000/- to the defendant in June 2014, letting out upper portion of the suit property to one Smt. Pushpa Rawat, occurrence of a quarrel between defendant and Smt. Pushpa Rawat and complaining of said matter by said Smt. Pushpa Rawat to the plaintiff and thereafter reporting of the matter to the police at 100 number by the plaintiff.
CS No. 173/14 Page No. 6 of 14Nitin Garg vs. Puran Chauhan
16. It is noticed that before filing of this case, a legal notice dated 28.03.2014 was served upon the defendant. From the perusal of the said legal notice, it is clear that the said legal notice was sent in the name of Sh. Pradeep Jain in his individual capacity and not by claiming to be the attorney of the plaintiff Sh. Nitin Garg. In the said notice, the attorney Sh. Pradeep Jain also claimed that he had let out the suit premises on rent of Rs. 5,000/- to the defendant; gave upper portion i.e. 4th floor to Smt. Pushpa Rawat and the incident of quarrel and complaining of said matter to the police were also done by Sh. Pradeep Jain.
17. From the above said two versions, it is clear that all the aforesaid allegations are personal which can either pertain to Sh. Pradeep Jain or Sh.Nitin Garg but the same cannot relate to both the aforesaid persons at the same time.
18. The attorney relied in this case on the GPA dated 02.06.2013 only and not other documents and as such, he cannot claim that he is the owner of the premises in question as well as attorney.
19. From the examination of Sh. Nitin Garg under Order 10 Rule 1-4 CPC, it is clear that said Sh. Nitin Garg had sold the property in question to Pradeep Jain by way of GPA, agreement to sale, CS No. 173/14 Page No. 7 of 14 Nitin Garg vs. Puran Chauhan payment receipt, affidavit, will and possession letter all dated 02.06.2013. Sh. Nitin Garg also placed on record copy of said documents but the attorney chose to claim his right and authority on the basis of GPA only.
20. Keeping in view the various contradictions with regard to the conduct and act of the attorney, I am of the considered opinion that the attorney Sh. Pradeep Jain is not authorized to continue with this case in the manner in which it was presented for the following reasons:
(i) The attorney is relying only on the GPA which does not find mention passing of any interest in the immovable property nor it can be relied for that purpose since it is not a registered document and as such the plaintiff is not entitled to the protection of Section 202 of the Indian Contract Act.
(ii) The GPA in question is a simpliciter document under Section 201 of the Indian Contract Act which is revocable/terminable at the will of principal/donor.
Reliance can be placed on the case of Corporation Bank, Bangalore vs. Lalitha H. Holla, AIR 1994 Kant 133 wherein it was held as under:
"A power of attorney executed in favour of an agent recording or recognizing an interest of the CS No. 173/14 Page No. 8 of 14 Nitin Garg vs. Puran Chauhan agent/attorney in the property which is the subject matter of the agency, cannot be revoked or terminated, even if the instrument states specifically that it is revocable, as then it would be a power coupled with an interest but a power of attorney simplicitor which merely authorizes an agent to do certain acts in the name of or on behalf of the executant at any time, that power of attorney can be revoked or cancelled by the executant at any time in spite of fact that the instrument states that the power of attorney is irrevocable."
(iii) If any person is permitted to institute a suit as attorney in the name of any other person by twisting the facts, it may invite complex repercussions e.g. if such suit is decreed, there may be a claim for enjoying the fruits of the decree by the principal over the agent and vice versa and if such suit fails, there may be a liability of cost, damages and harm to reputation and such liability can be defeated by passing the blame on each other.
(iv) For termination or revocation of said authority, even there is no requirement under law to give prior notice and that too in writing. In this regard, reliance can be placed on Section 207 of the Indian Contract Act which provides that "Revocation or renunciation may be expressed or may be implied in the conduct of that principal or agent respectively". In this context, the illustation appended to said Section also squarely applies CS No. 173/14 Page No. 9 of 14 Nitin Garg vs. Puran Chauhan to the present case which states, "A empowers B to let A's house. Afterwards A lets it himself. This is an implied revocation of B's authority. In the instant case also, the statement of Nitin Garg under Order 10 Rule 1-2 CPC revokes his GPA with respect to right of his attorney to file or continue with the present case and no prior notice or written notice is required in this regard.
21. The learned counsel for the attorney argued that a prior notice is required for revocation of GPA. In this regard, he has filed referred to Section 3 of the said Act which is reproduced as under:
"3. Payment by attorney under power, without notice of death, etc. - Any person making or doing any payment or act in good faith, in pursuance of a power of attorney, shall not be liable in respect of the payment or act by reason that, before the payment or act, the donor of the power had died or become of unsound mind or insolvent or had revoked the power, if the fact of death, unsoundness, of insolvency or revocation was not at the time of the payment or act, known to the person making or doing the same."
22. As far as aforesaid Section 3 of the Powers of Attorney Act, 1882 is concerned, from its plain reading it is clear that it refers to the liability part of a donee who had performed certain act in continuance of an authority and it gives a protection to a donee/attorney if the fact of revocation of authority was not in his knowledge on account of death, unsoundness, insolvency of the CS No. 173/14 Page No. 10 of 14 Nitin Garg vs. Puran Chauhan donor or revocation of such authority. But it does not refer to the condition of giving of any prior notice for the purpose of revocation of any authority, as argued by the learned counsel for the attorney. For revocation of a GPA simplicitor (without creating any interest) no prior notice is required and the statement of Sh. Nitin Garg under Order 10 Rule 1-2 CPC is itself a notice by way of his conduct, as illustration appended to Section 207 prescribes.
23. Under these circumstances, I hold that the attorney has no locus standi to file or continue with this case in the name of plaintiff.
Decision on the application under Order 15 CPC
24. Even if it is presumed that the attorney was competent to file this case before the date of revocation or termination of his GPA, in that case this court is required to examine the application under Order 15 CPA filed on behalf of attorney. In the said application, it is stated that the plaintiff being the landlord is entitled for a decree irrespective of the fact that defendant denied his status as tenant since the agreement to sell relied by the defendant is not a registered document.
25. In this regard, the learned counsel for plaintiff heavily relied on the case of Om Prakash vs. K.L. Kurian (CS No. 1433/2012 decided by Hon. High Court of Delhi) wherein it was CS No. 173/14 Page No. 11 of 14 Nitin Garg vs. Puran Chauhan held:
"Though the Plaintiff denies that his son executed the bayanama' and receipt aforesaid, however even if the same were to be believed/accepted, the fact remains that the Agreement to Sell contained in the 'bayanama' relied upon by the defendant, in favour of his wife, is an unregistered document. Pursuant to the amendment with effect from 24th September, 2001 of The Registration Act, 1908 and the Transfer of Property Act, 1882, no plea of delivery of possession in part performance is entertainable without the Agreement to Sell in pursuance to which possession is delivered being registered."
26. The learned counsel for plaintiff further asserted that the claim of the defendant towards ownership cannot be accepted as the agreement to sell placed on record by the defendant is not a registered document and no protection of Section 53 of the Transfer of Property Act can be given to him.
27. From the careful perusal of the aforesaid cited case, it is clear that the facts of the present case and the facts of the cited case are distinguishable on following points:
(1) In the said cited case, the suit was decreed keeping in view the fact that the defendant was residing in the said suit premises prior to the execution of bayana receipt which indirectly shows that he was a tenant prior to execution of bayana receipt.
(2) The defendant in that case was also holding only one CS No. 173/14 Page No. 12 of 14 Nitin Garg vs. Puran Chauhan document i.e. Bayana Receipt (agreement to sell) which was not a registered document and, a such it was held that he was not having any admissible document as per law after enactment of amended provisions of the Transfer of Property Act as well as Registration Act w.e.f.
24.09.01.
(3) In the quoted case, the defendant has no other document to prove his claim of ownership whereas in the present case the defendant has placed on record various documents i.e. GPA, Will, Receipt etc. in addition to agreement to sell. Even if it is presumed that the agreement to sell filed by the defendant is not a registered document, the defendant is also holding GPA, Receipt and possession letter which are also material documents.
(4) This court can also take into notice the statement of Shri Nitin Garg, recoded under Order 10 Rule 1-2 CPC which is contrary to the case of attorney and rather it favours the claim of the defendant.
(5) Moreover this court is also not oblivious of the fact that large scale sale of immovable properties are taking place by execution of GPA, Agreement to sell, Affidavit, Receipt, Will and Possession Letter. No doubt, from execution of such documents, the title is not transferred in the property in view of judgment of Hon'ble Supreme Court in the case of Suraj Lamp case but in order to decide the present case, this court has to evaluate the rival contentions on the basis of better title theory.
(6) When the plaintiff is supporting his claim on the basis of one set of documents i.e. GPA, Will, Agreement to sell, Receipt etc. then on the principles of equity, the defendant can also rely on such sets of documents.
CS No. 173/14 Page No. 13 of 14Nitin Garg vs. Puran Chauhan
28. Accordingly in the light of above said discussion, I am of the opinion that the application under Order 15 Rule 1 CPC filed on behalf of attorney is not maintainable and accordingly the same is dismissed. It has already been held above that the attorney Sh. Pradeep Jain has no locus standi to file or continue with present suit. Resultantly, the present suit is dismissed.
29. From the contradictory stands taken from time to time by the attorney in the instant case and in view of physical condition of the defendant (who is a physically challenged person), I am of the opinion that imposition of exemplary cost will meet ends of justice. Accordingly the attorney is burdened with cost of Rs.20,000/-, out of which Rs.15,000/- shall be paid to the defendant and Rs.5,000/- be deposited to Delhi Legal Services Authority (DLSA) within 30 days. Copy of the order be sent to the Secretary, Delhi Legal Services Authority, Shahdara for information. File be consigned to record room.
Announced in the open court on 23.02.2015 (Naresh Kumar Laka) Senior Civil Judge-cum-RC, Shahdara District, Delhi.
CS No. 173/14 Page No. 14 of 14Nitin Garg vs. Puran Chauhan