Back
2025 Supreme(Online)(Ker) 49026
IN THE HIGH COURT OF KERALA AT ERNAKULAM
Easwaran S., J
P. JAFAR – Appellant
Versus
M A AJITHPRASAD JAIN – Respondent
RSA NO. 474 OF 2025 | AS NO.3 OF 2023 | OS NO.159 OF 2022
For the Appellants/Petitioners: SMT. GAYATHRI KRISHNAN, SRI. VINAY JOHN A. J.
For the Respondents:
An implied revocation of a power of attorney cannot be presumed without clear actions from the principal; failure to challenge previous dismissals of plaint renders the appeal non-maintainable.
Headnote:(A) Indian Contract Act, 1872 - Section 207 - Code of Civil Procedure - Order VII Rule 11 - Rejection of plaint for non-disclosure of cause of action - Plaintiff contends that power of attorney subsists and has the right to execute sale deed as per agreement - Court finds the rejection of the plaint is not maintainable due to lack of challenge to a previous order dismissing the plaint - Appeal dismissed. (Paras 2-6)
(B) Power of Attorney - Validity and Effect - An implied revocation of power of attorney cannot be drawn without an overt act from the defendant despite the transaction of sale consideration having occurred. (Paras 4-5)
Facts of the case:
The appellant sought a declaration regarding the subsistence of a power of attorney and rights to execute a sale deed, while the suit was dismissed on the grounds of improper cause of action. The appellant failed to appeal the rejection of the plaint separately.
Findings of Court:
The appeal is non-maintainable as the necessary prior order was not challenged by the appellant in the first appellate court.
Issues: The main issue addressed was whether an implied revocation of a power of attorney can be presumed without a clear act by the principal.
Ratio Decidendi: The court ruled that the appeal is dismissed due to failure to appropriately challenge the earlier rejection, emphasizing the need for comprehensive appeals against dismissal orders.
Result: Appeal dismissed.
| Table of Content |
|---|
| 1. factual background regarding the power of attorney and the resulting dispute. (Para 2) |
| 2. argument on legality of the rejection of the plaint. (Para 4) |
| 3. court's reasoning on maintainability of the appeal. (Para 5) |
| 4. final decision on dismissal of the appeal. (Para 6) |
EASWARAN S., J.
--------------------------
R.S.A. No. 474 of 2025 -------------------------
Dated this the 08th day of September, 2025 JUDGMENT The appeal arises out of the concurrent findings of the Munsiff Court, Kalpetta in O.S. No. 159 of 2022 which was confirmed by the Sub Court, Sulthanbathery in A.S. No. 3 of 2023.
2. The brief facts necessary for the disposal of this appeal are as follows:
2.1. The suit O.S. No. 159 of 2022 is instituted by the appellant for a declaration that the power of attorney dated 12.04.2004 executed by the defendant in favour of the plaintiff still subsists and that the plaintiff has every right to execute sale deed in respect of plaint schedule property to which an agreement of sale was entered by him. Consequential injunction was also sought for seeking to restrain the defendant from transferring the plaint schedule property without the consent of the plaintiff. The dispute in the suit revolves upon the validity of the power of attorney executed in favour of the plaintiff/appellant on 12.04.2004 by the defendant. According to the plaintiff, he has executed an agreement of sale dated 15.11.2011 and that the defendant has received the advance sale consideration. The defendant appeared and contested the suit and filed I.A. No. 6 of 2022 seeking to reject the plaint for not having disclosed any cause of action under Order VII Rule 11(a) of the Code of Civil Procedure . The plaintiff resisted the application on the ground that going by the contents of the power of attorney, the agreement of sale executed by him was perfectly legal and that he had every right to execute the sale deed in pursuance to the said agreement of sale. The Trial Court, however, came to the conclusion that there is an implied evocation of power of attorney under Section 207 Section of the Indian Contract Act, 1872 . Resultantly, the suit was rejected as having failed to disclose the cause of action. Aggrieved by the rejection of the plaint, the plaintiff preferred A.S. No. 3 of 2023 which was also dismissed by the First Appellate Court and, hence, this appeal.
3. Heard Smt. Gayathri Krishnan, the learned Counsel appearing for the appellant.
4. The learned Counsel for the appellant vehemently argued that the rejection of the plaint under Order VII Rule 11(a) of the Code of Civil Procedure is completely erroneous and that the First Appellate Court also failed to note the crucial fact that when the agreement of sale was executed, the power of attorney will subsist and that any subsequent act of the defendant cannot prejudice the appellant. In the absence of any overt act on the part of the defendant in cancelling the power of attorney, an implied evocation of the power of attorney could not have been drawn by the Courts below in terms of Section 207 of the Contract Act. Admittedly, the defendant had received the advance sale consideration and, therefore, the plaintiff had every right to institute the suit.
5. On consideration of the aforesaid arguments, this Court finds that the present appeal is not maintainable inasmuch as the plaintiff had failed to challenge order dated 21.11.2022 in I.A. No. 6 of 2022 in appeal before the First Appellate Court. Order 43 Rule 1A of the Code of Civil Procedure confers a right to challenge non- appealable orders in appeal against decree. Order 43 Rule 1A of the reads as under:
“1A. Right to challenge non-appealable orders in appeal against decree.
(1) Where any order is made under this Code against a party and there upon any judgment is pronounced against such party and a decree is drawn up, such party may, in an appeal against the decree, contend that such order should not have been made and the judgment should
