K. AKBAR ALI vs. K. UMAR KHAN, SC 2021
FACTS – The Petitioner/Plaintiff filed a Civil Suit in the original side of the High Court of Judicature at Madras challenging the sale deed dated 2.6.2010 executed by the first defendant in favour of Defendant Nos.2 and 3, inter alia, on the ground that there is a pre-emption agreement dated 5.11.1998 executed between the Plaintiff and the first Defendant. The said agreement is said to be executed on the basis of the Power of Attorney executed by the first Defendant in favour of her son on 2.1.1989. On the face of the averments in the plaint filed by the Petitioner/Plaintiff in Paragraph 3, the first Defendant, a permanent resident of Salem had given a Power of Attorney to her son, Mr. Zahir Ali to maintain and administer the suit property. The cause title of the plaint reveals that the Petitioner/Plaintiff impleaded the first Defendant as represented by her power agent A.J. Zahir Ali. While the suit was pending the first Defendant died whereupon her heirs were impleaded Defendant Nos. 4 to 9.
The Defendant Nos. 2 and 3 moved an application under Order VII Rule 11 of the Code of Civil Procedure, 1908, inter-alia, on the ground that there is no Power of Attorney authorising Zakir Ali to enter into any sale or pre- emption agreement.
The learned Single Judge rejected the application filed by Defendant Nos. 2 and 3 on 15.9.2016. However, in appeal, the Division Bench of the High Court allowed the application and held that the Power of Attorney does not authorize the attorney to execute an agreement as the Power of Attorney was granted for conduct of Court proceedings only.
CAUSE – The order passed by the Division Bench of the High Court in appeal.
ARGUMENTS – Learned Counsel for the Petitioner/Plaintiff argued that clause 6 of the Power of Attorney “to do all lawful, as my said attorney deems fit and just on my behalf ” authorizes the attorney to take all steps which are necessary and proper, as considered by the attorney. Such aspect has not been appreciated by the Division Bench of the High Court in proper perspective. It is also argued that the sale deed executed has been challenged by the heirs of the Defendant No. 1, now deceased and that the challenge to sale deed has been successful. Therefore, the sale deed executed by Defendant No. 1 in favour of Defendant Nos. 2 and 3 is not legal and valid which cannot affect the rights of the Petitioner/Plaintiff.
ISSUE – Whether the suit is ex facie not maintainable for want of cause of action against the defendants or any of them?
DECISION – It is well settled that while considering an application under Order VII Rule 11 of the CPC, the question before the Court is whether the plaint discloses any cause of action or whether the suit is barred by any law, on the face of the averments contained in the plaint itself. While considering an application under Order VII Rule 11 of the CPC the Court is not to look into the strength or weakness of the case of the plaintiff or the defence raised by the defendant.
In this case, the Petitioner/Plaintiff has, as stated above, asserted that the Power of Attorney was given to Mr. Zahir Ali to maintain and administer the suit property. There is no assertion in the plaint that the Power of Attorney authorized Mr. Zahir Ali to execute any pre-emption agreement. In this case, a meaningful reading of the plaint as a whole makes it abundantly clear that the relief claimed in the suit is barred in view of the restricted scope of the Power of Attorney given by the first Defendant to Mr. Zahir Ali. Where on the face of the averments in the plaint, the claim in a suit is based on an agreement executed through a Power of Attorney holder, the Court is not debarred from looking into the Power of Attorney. It is open to the Court to read the terms of the Power of Attorney along with the plaint in the same manner as documents appended to the plaint, which form part of the plaint.
The argument of the learned Counsel for the Petitioner/Plaintiff that the expression ‘to do all lawful acts’ in Clause 6 of the Power of Attorney will include an act of sale of the property is not tenable. The acts mentioned in the Power of Attorney are in respect of Court proceedings and that too with reference to Civil Suit. There is no clause permitting the attorney to sell the property or to enter into any agreement to sell. In the absence of any such clause in the Power of Attorney, the Defendant No. 1 cannot be bound by the acts of her son. Therefore, the purported pre-emption agreement does not give any right to the plaintiff to file the suit. The suit is thus not maintainable. The argument advanced by the Petitioner/Plaintiff that the plaint discloses triable issues, and therefore, should not be rejected at the initial stages is devoid of merit.
It is patently clear from a meaningful reading of the plaint in its entirety that the plaintiff has no cause of action against the first defendant being the owner of the suit property, the Power of Attorney being patently invalid.The Division Bench of the High Court has done substantial justice by nipping in the bud, a suit which is ex facie not maintainable for want of cause of action against the defendants or any of them, thereby saving precious judicial time as also inconvenience and expenditure to the parties to the suit. We are, therefore, not inclined to interfere with the impugned judgment and order of the Division Bench of the High Court under Article 136 of the Constitution of India.