Karnataka High Court
S V Revanaradhya vs Sri Jagadish Mallikarjunaiah ... on 2 March, 2010
Author: S.Abdul Nazeer
Bench: S.Abdul Nazeer
'A116: A
IN THE HIGH COURT OF KARNATAKA AT BANGALO,RE'?-_¢:""e._V'
DATED THIS THE 2"? DAY OF MARCH 201Q:'_j""A ' ;f f
BEFORE
THE HON'BLE MRJUSTICE S. A/BDW... NA£'J5'ER A 5 ~ A
REGULAR FIRST APPEAL A%zva.%1303/2&0? (Ieris)};g.
Between:
S.V.Revanaradhya, V I , A
S/O late Savaneer \A'e'er;1V;;§pa, 2;
Aged about 43 yam, 'V __ "
R/a NO.1125,3i3'"C§'C_rOsS;*--. A
25"' Main, V4."e'._B_1O'e}g;'Jéiyanagaf,.__" "
Bangalorezvé 560 . Appeliant.
(By Sri K.Gifi:1ha:f,A'd_v.:)'A'._ " A
Sr; ia.g.¢'*V{clAisiV1T'Mv2iiiVikafj~unaiah Chakrabhavi,
S/0' Sri"C.I\/If I*»'!'gt:IA1i};arjunaiah,
Aged 'abouI;*3'"F .y.ears,
' 'Rla I\EO.1{)55.. E.EveIyn Ave E 62,
" u -- ..Si1nnyana1e...C.A.
_ v9jams6,"«1;.s.A.
Reptd. By his GPA Holder,
Sri CM. Mallikarjunaiah,
Aged about 69 years,
R/a No.16}, 15' Cross, 1" Block East,
Behind Saraswathi Vidhya Mandir,
Jayanagar, Bangalore ~11. ii'Re1sp_o'ndent." 76 '
(By Sri S. Rajendra, Adv.)
This Regular First Ap§ieal..is'.gfiled u."nd'er»'S.ec.96 of CPC
against the judgment and '-decree 1 dateiii'~fg2l7~.8.2009 in
O.S.No.4387/2005 on the file;'o'f"the"44'}'xAdditional7'City Civil and
Sessions Judge, Ba1'1gai'Or.e, etc, 2:
This Reghlar on for Final Hearing this
day, the Co_urt.deli vered~1the_ fo.l_lC-wiiigr -. V
This aplfieall is direeted" the judgment and decree in
r31.s.Ng».zé387220Q5 l'id3ted______2tE.8.2009 on the file of the 44"'
lfitddiltiional City C.iyil._and Sessions Jud ge, Bangalore. The appellant
was 'the"':lefend*a't:ft iii': the suit and the respondent was the plaintiff.
' For the lsa1<e.ofVconvenience, the parties are referred to by their respective ranking before. the trial Court. % tit
2. The plaintiff filed the above suit for ejectrnent of the defendant from the suit schedule property and for certain._h'other'j; reliefs. It is the case of the plaintiff that he is employed" f i State of America. As such, he has executed aifpoui/e_r o'f--a_tt'orney' dated 4.2.2004 in favour of his father;CM.M'allikwarjunaiial,1. Acting f on the said power of attorney, C.M.l\'/lal:lil<arjunaiahf_ the suit schedule property from .\and.on of the plaintiff by a deed ofsale day, the plaintiff took the sichieduhlefjproperty through his attorney. Mahanagara Palike transferted1.the'- kathaf'o:f' in his favour. The defendant requested the pla_inti.fffto.1ease suit schedule property for a short .-v.duratiQn-i, "i'herefore,"'=the_____piaintiff represented by his attorney "eXer.;uted 'ren«t.yV'agreement in favour of the defendant dated
22.'?'.Ti'L0'€)4. ."l'he"pj;fen.tVagreed upon was Rs.l0,000/-- per month. The ' 'ciefendan:..h'as paid a sum of R32 lakhs towards security deposit to ipla'i--ntiff'. The duration of the lease was from 23.7.2004 to It is further contended that the defendant did not pay 'ii general power of attorney holder has no knowiedge of the case. Therefore, the plaintiff cannot maintain the suit through his power of attorney hoider. He has prayed for dismissai ofthe ii"
4. On the basis of the pleadings of the.ppartiesii.rth'eieoe.rtii».,p 3 below has framed the foiiowing issues:-._'_ _ z "(i) Whether the tCI'II1iI1a[iO_I1._'> "of tenaney the H defendant is valid and in aCCAOT'dE:l!I%lC'Ci'With Eaw?
(ii) ,'J'v'i1et.her§5the'7piain'tift'*--is entities? for possession of the suit --p1operty' "fI'A:(51T§bi['i1~3V:iCi'6f€D dant'?
(i_i_i)_V Wheitherivthe idefe-.ndar1t proves that the suit is not yalued'ian--d...pi*oper court fee is not paid? V Vi :(iv_) the defendant proves that the suit filed by " PA Horde; riot maintainable?
V pp pp(v)..W71iat order?"
'at:
B.-ule 12» the CPC'-.7i:'he'_'suit was accordingly decreed on appe1E.an'tfdefendant and Sri S.Rajendra, iearned Counsei appearing A' "if _f__or"the' respondent/plaintiff.
5. The power of attorney holder of the plaintiff was examined as P.W1. and the documents Ex.Pl to Ex.P1() marked in his evidence. The defendant has not let in On appreciation of the materials on reco'vr'dA,"ithe« held that the notice terminating the tenanc$}'.i_ssii.ed is valid and that the piaintiff is entitied*'s:itor'vacant' suit schedule property. The.coa.1rt uiurtheriiheld that the suit filed by the plaintiff throttgli holder is rnaintainahle. to and hand over vacant possession offthe pioper'tiy}to' the piaintiff within a period of three months;v..'The directed for holding of an enquiry with regardiito the of damages under Order 20
6. haivie heard Sri K. Giridhar, Eearned Counsel for the
7. The submission of the learned Counsel for the appe.l.l_ant:is4e:i'5 '' two fold. Firstly, it is contended that the plaintiff"'~hasfjiiot ii authorised his father C.M.Mallikarjunaiat;.;toinitiate action--_fo_r""'h recovery of possession of the suitafilhedutcg 15ropertY_}'.rOiIi1 "the?
defendant. In Ex.Pl, the power of iivattiorney, the authorised his father to purcha;se"i~the investvrhent. It is argued that as the recognised agent 2 of CPC. In EX.Pl, the plaintiff gnotaLi'thoi:i:se.diCA;M.Vi*/lallikarjuniah to act as his power ofattor11eyV'ci'the'rtfortiterrairrating the tenancy or to file a suit for ejectrrientiiof the defen.dé_mt. In this connection, he has relied upogniythe decision Bombay High Court in WESTERN Aryoras» LTD. VS. ISHWARBHAI SOMABHAI V PA9n:r;i.,t'(/iI1'é."195a' BOMBAY 386) and the decision of the apex 'Court in x 1'rMBr,o IRMAOS Lm, MARGO VS. JORGE f£AIIBAL."MAT0S SEQUEIRA AND ANOTHER [(1977) 3 sec $econdly, it is arguedhthat the court below has not afforded { 13 or to manage the affairs of the principal generally, the necessary authority is conferred by an instrument known as pow'er.i:'ofi3V attorney. It is a document of convenience, which givegfa rightitol i * the donee to use the name of the principal, -
13. Like any other documents; 3 powier_of'--attorr3ey may: also 3 need judicial interpretation on the factsiand _circur12stances of each case. Normally, the donorwill. either:.gii/e.__res'tricted or qualified power in favour of the agentAorV:he.Vrria_y figiv'é~..3bs~b:i.iie and general power. One has loo}: at the rrianJr1er4_4i11._whiclrthe power is given in order to ascertain'thekz-;ttei1t' "of'power. In BOWSTEAD ON AGENCY _ I5?fHt.9u;DIrIoj\tai'page 98, the author has pointed out the rules oftconstrtiction applicable to the powers of attorney. They Kare as-.1._;nder:«.p '.44"'{a)he' operative part of the deed is controlled by the .. Vorecivtalts where there is ambiguity. i it i.
14
(b) Where authority is given to do particular acts} followed by general words, the general words » it restricted to what is necessary for the performance of the particular acts. ~ ii it _ it (C) General words do not confer geia4erai;'_'poiwer»but ' limited to the purpose for which" the authority and are construed as enlarging"specialpow'ers.=only when necessary for the purpos.e;'"
(d) The deed must be"'constr11.ed,VSoiitiasjtotiitnclude all incidental powers Ante.C.essary..A :.,for"". itseffective 9:99.
execution
14. :fCouucil.'*- in 'naafrr OF BENGAL VS. RAMANA mm organs ...-- AIR 1915 PC 121, has held as under: 2 i it 'A « , _:;'RVliere an"a_.ct purporting to be done under a power of i'ivsV"s~.c:b~a1_lenged as being in excess of the ,_aiutho;'ityxt:'conferred by the power, it is necessary to on a fair construction of the whole is .-instrurnent the authority in question is to be found V'-».w.ithin the four corners of the instrument either in express terms or by necessary implication. Where 35 under a power of attorney the agent had express authority to borrow on behalf of the principal. for purposes of lending money to others. The authoritpyytei borrow implied an authority to pledge the credit the:
principal for the purpose of obtaining o;."s'ecfiIg;;ig"~i.: * advances from others to constituents." L 4'
15. In SYNDICATE Banfie. BAN.GALbRis:_ "Vs. I.K.AMITHA & OTHERS l:;.._AA1as"i9$'5 jy .Ki{<i'RNATAiIC4'iii213, a Division Bench of this Court has inlaid'Vdow1--1«..thei.:'yptiincipies, which may be applied foi:'crj:;p3iructi1on of=pow'er.s of=at_tQ»rney, which are as under:
'"rhé- ufoilowinygi'principles.may be applied for the construction"ofpppowersof attorney, (1) the operative part of theilide-edv___isAycontrolled by the recitals where _iairn.biguity; (2) where authority is given to do foliowed by general words, the general i ' restricted to what is necessary for the proper ipcrferrnaince of the particular acts. Rule I referred to V " .-..abo'v'e will come into operation only when there is V' ambiguity. If there is no ambiguity, in the conferment la 1?
acts followed by general words, the general words are restricVt_ed._'to._V what is necessary for the proper performance. If power _is"'g1ve'ii.._to5 :_. ' do a particular job, then alt the powers usually are do that job may be assumed. It is not necessaryitolsetiryouti ailthos_e .i powers in detail. It is construed as»iI'rcludingA.aii' incideentai .powe_i?s V necessary for carrying out its object effe'c.tively. g _
18. Keeping the above statutory piehyisions and principles in mind, let us now examine whether th'e'piain1:iif'fA_ij1as'authorized his father to terrx1inate"th.el_' --tenancy_ of" thei"d'e'fendaht and to initiate proceedings for hislejiectriientnndei' 'Ex.P.1. In paragraph 1, the donor has stat_ed _that_ he "intends to purchase the immovable properties (sites or house property) in and around Bangalore City.
V"._VBut,'*he h.avs«.to«.t:ge hack to USA again. As such, it will not be possgihle' for E-'iiprnlito contact the owners (sellers) of the property, 'negotiate. wiythvthern for purchase of site/house property, to enter into 'i agreement of sale and to pay advance and pay sale ' «i-'consideration in respect of the sitefhouse property to be purchased it / 18 on his behalf. Therefore, he is appointing, nominating..eiand..V_ authorising his father to do the acts, deeds and things sta_te§d.therrfe'i--n_,j' _ Clauses 4. 5, 6, 7, 11 and 12 of EXP} areireglevant _.for'the'_vpLi'rpose of this case, which are as under:
"4. To look after, manage and..take_-a~£1_e such 'measures as my attorney may co.ns'1derd__appropi=--i_ate.for protecting my interest in im1novalH3_lVe'i'asVsct'_s' .toviVi'1isf1_;1re_'.the same against any dairiagegor present my witness 'in' in" rnarzner, as my attorney iiigonsider VAttomey is also authoriziedrifto the -iriiniovable property by way. of sale price to the prospective purchaser/s,». reiceiive consideration on my behaif, g,._§e'>riectite saierrdeed/s and present the same before the in tiufisdicftional SuHhMRegistrar/s, admit execution of the 2 hand over physical possession of the property/s to the prospective purchaser/s. V' A. , s_ 5. To institute, prosecute and/or defend any manner of jactm suit or proceedings and carryout/impiementlenforce any agreement decree, it discharge thereof.
19 order or direction and for any of the purpose thereof to take appropriate measures and institute proceedings. 'IV *
6. To instruct and employ Solicitors, Advocates, Accountants and/or other Professionals land/or consultants for any purpose lafolresaid.
7. To ask, deniandtnsue receiylelllall moneys or dues or '.:1:own_':.pa_:gable or deliverable" y or _hereeafter to.:::"ticcorne ypayable or deliverableto accotgntfivlhatsoever from any person/s._an.dl;'_to igvalid receipts and
8. xxxx xxxx xxxx
9. xxxx 'xxxx 9' .l l0.E.x>i:~;x.V xxxx ' Xxxx ll Engineers, Connjactors,' "€h'artered, l V lip. "ifo)takeic,arAl siawftil" proceedings including distrait s.._'j.,action:"for' ther.reco.v'ery of all money and other assets bellonlgilng to me or hereafter to belong to me from ll T 22
20. In WESTERN INDIA THEATRES LTD. (Supra) relied on by the learned Counsel for the appellant, the High Court has held that Order 3 Rule 2 of CPC . on the same footing as the party himself o:7~hi.s_ 'pleaderf so long as the power of attorney had the"1«nece'ssary llatltihorisatiott,7.A no further question as to the naturelofpjlthe power of to be considered and the person .holding------the'p':power of attorrieyiiwould be able to act as a recognizedashentlwifthinu of Order 3 Rule 2. It has been further of attorney rnust authorise authority must appear not in a attorney but a general power of attorney. The'«--interpretation" ofthe expression "general power of V. p_ attor_t1€}?":rriust be n"1ade___on general principles of law and not in the l'ight"of partyprovyisrion contained in Order 3 Rule2 itself, because all that Order'3.7F_.u'¥el 2 requires is that whatever be the power of '._attorr1ey.., that power of attorney must confer the necessary power it 2f_'t:3:Ai_oh"the agent. in TIMBLO IRMAOS LTD., MARGO (Supra), " the Apex Court has held that the most important factor in it w 26 prosecute and defend in any manner of suit or proceedings for any purpose. He has further stated that his father used to keep informed and would take instructions as and when it wasmequire-ziij' " . orally either in person or over telephone from time to__tin:e starting 3 from the date the schedule property Vyas iprui-chased appellant and subsequent dates when the appe_lla--nt wasvi-indu'cted tofu' the schedule property as a tenant, issuance of quite notiee, filling of the suit, giving evidence andA__p"rosec'ute:.thé As such, he had authorised his father to do__t_h:e w.sa"oo_ve_ acts ' -had filed the execution petitionfby:§him.3el:f, as he in Bangalore. He has ratified' an the a¢:~;j"d;sr.ey father. From the conduct of the plaintiff, it isiiinatiifest'that.eVen'_.'if it is assumed that express power .._has nofrhveett granted' iunder Ex.P.1, the plaintiff has ratified the ":actio'n of ti_iet.att.orney in terminating the tenancy of the defendant, fiiingh of' suit ejectment from the property and pursuing the [suit at Lager"-"yr stage ti1.1 the date of decree. Point N0.(i) is answered ..aecordi.ngly.
\i 28 to recall the order dated 23.3.2006 and to permit him to lead his evi.dence. The application was allowed on payment of costlef RS200/- and the matter was posted for defendant's evi'der1,Ce__l__t0I' 18.4.2006. Even on that day, the defendant did not if and the matter was again posted to 2.6.2006, ,_ On all these dates, the defendant .did,__n0t le.ad"'evide,nee..(:)n that date, the case was posted to filing'lohjleetienslvfto LA. No.5 filed under Order 1 s.R.ffA1§fasa and S.R. Preetharn, the sons was again posted for narrrgygf " 5902007, 17.3.2007, 28.5.2007, %2."15:20i §.:s'0.201g17'. On that day, I.A.N0.6 was filedilgy direction to the defendant to pay or deposit a sznntof heing the arrears of damages for use and eccupatidir-pf the suit schedule property. Thereafter, the c.ase«ij6sted't0 22.8.2007 and 11.9.2007. On 11.9.2007, since 0ubj.eetig;ns"t0i_'l._A.~6"0bjecti0n was not filed, the matter was posted roar he"arin;§A.I.A;.N0s.5 and 6 to 12.10.2007 and 3.11.2007. On 00 60213.1'l;2.007,lI.A.No.7 was filed by the plaintiff to recall the order ll