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Before the Madurai Bench of Madras High Court
THE HONOURABLE MRS. JUSTICE ARUNA JAGADEESAN
M. Nelson Babu
Versus
K. Kamalesh Babu & Another
CRP(PD)Nos.153 of 2009 & 117 of 2009 & MP.No.1 of 2009
Decided on : 15-09-2009
Power of Attorney - Civil Revision Petitions - Order 7 Rule 11 of CPC - Section 25(d) - Section 40 of the Tamil Nadu Court Fees and Suits Valuation Act
Fact of the Case:
The 2nd defendant filed Civil Revision Petitions against the order declining to review the order passed in IA.Nos.280 and 281 of 2008 in OS.No.99/2009 and dismissing the petition filed under Order 7 Rule 11 of CPC respectively. The respondents/plaintiffs filed the suit to declare a document as non est, unenforceable and invalid and to grant permanent injunction restraining the defendants from encroaching or trespassing or making any construction in the suit schedule property.
Finding of the Court:
The court found that the appointment of the Power of Attorney Agent was valid and that the suit was not barred under law. The court also held that the suit was rightly valued and the court fee paid was proper.
Issues: Validity of the Power of Attorney, Barred Suit, Under-valuation and Improper Payment of Court Fee
Ratio Decidendi: The court emphasized that the appointment of the Power of Attorney Agent was a matter between the principal and the agent and did not prejudice the defendant. It also ruled that the suit was not barred under law and that the court fee paid was proper based on the Tamil Nadu Court Fees and Suits Valuation Act.
Final Decision: The Civil Revision Petitions were dismissed, and no costs were awarded.
These Civil Revision Petitions are filed by the 2nd defendant against the order dated 16. 2008 passed in IA.Nos.280 and 281 of 2008 in OS.No.99/2009 by the learned Principal District Munsif, Nagercoil, declining to review the order passed in IA.No.167/2008 dated 21. 2008 and dismissing the petition filed under Order 7 Rule 11 of CPC respectively.
2. The respondents/plaintiffs filed the above said suit to declare that the Document No.547/2007 dated 12. 2009 of Kottaram Sub Registry relating to the suit schedule properties in P10, 20/2, 20/3 of Nagercoil Village including the whole of the property as P10-20 in the document as non est, unenforceable and in valid and to grant permanent injunction restraining the defendants from encroaching or trespassing or making any construction in the suit schedule property.
3. For better appreciation, few facts which are essential for the disposal of these Civil Revision Petitions are stated below:-
One late Kunjan Nadar had five sons viz. (1) Ravikumar, (2) Madhukumar, (3) K.T.Dhas, (4) K.E.Kamalesh Babu (1st plaintiff) and (5) Dr.KVijayakumar (2nd plaintiff). Since the plaintiffs are residing in USA, they had executed a Power of Attorney in favour Dr.R.Shylaja who is the daughter of K.Ravikumar, the brother of the plaintiffs. The Power Agent namely Dr.R.Shylaja had filed an application in IA.No.167/2008 in OS.No.99/2008 to accept the power deed and permit her to represent her principals and the same had been allowed on 21. 2008. Subsequently, the suit has been numbered as OS.No.99/2008. The petitioner herein had filed a petition in IA.No.281/2008 to review the said order and the same had been dismissed by the learned Principal District Munsif, Nagercoil by order dated 16. 2008 as against which the petitioner has preferred CRP.No.117/2008.
4. The petitioner had filed another application in IA.No.280/2008 to reject the plaint on the ground that the suit in OS.No.99/2008 is filed on identical grounds for the same relief made in OS.No.446/2007 and the pendency of the suit in OS.No.446/2007 has been deliberately suppressed by the plaintiffs and hence, the same is barred under law. Further, the respondents/plaintiffs have under valued the claim and proper court fee has not been paid causing revenue loss to the State and it ought not to have been allowed under Section 25(d) and the plaint has to be rejected for under valuation and improper payment of court fee. The court below rejected his contention and dismissed the petition, as against which the petitioner has filed CRP.No.153/2009.
5. Mr.T. Lajapathiroy, the learned counsel for the petitioner would submit that Dr.R.Shylaja is not the Power Agent of the plaintiffs and she has no locus standi to file the suit in OS.NO.99/2008. On 210. 2007 one Arulprakasam has filed WP.No.9669/207 before this court claiming to be the Power of Attorney of K.Vijayakumar and one Stella Dhas represented as Power of Attorney of K.Kamalesh Babu in the suits in OS.No.153/2002 and 35/2006 and in the said facts without cancelling the prior Power of Attorney, no Power could be granted to Dr.R.Shylaja and the claim of Dr.R.Shylaja as Power of Attorney is mala fide and false. He would further submit that no opportunity was given to him before accepting the Power of Attorney and the order passed by the learned Principal District Munsif is unsustainable.
6. It is seen from the counter filed by the respondents that K.Vijayakumar (2nd plaintiff) had appointed one Mary Stella Dhas, w/o late K.T.Dhas (another son of late Kunjan nadar) as his Power of Attorney agent by document No.397/2002 dated 6. 2002 and subsequently the said Power Deed had been cancelled and he had appointed Dr.Arul Prakasam a retired school Head Master as his Power of Attorney under Power deed dated 111. 2005 registered with the District Registrar on 24. 2006. Both the principal and the Agent found it difficult, as Agent could not travel to Nagercoil every day and supervise the property, his po
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