HON'BLE SRI JUSTICE LAXMI NARAYANA ALISHETTY CIVIL REVISION PETITION No.3021 of 2024

ORDER:

This revision is filed aggrieved by the order dated

25.07.2024, passed by the XXV Additional Chief Judge, City Civil Court at Hyderabad in Memo S.R.No.9676 of 2023 in O.S.No.137 of 2023.

2. Heard Sri Shyam S. Agarwal, learned counsel for the petitionerandSri T.Natraj, learned counsel for the respondents. Perused the record.

3. The petitioner herein is defendant No.2, respondent No.1 herein is the plaintiff and respondent No.2 herein is defendant No.1 in the suit. Forconvenience, hereinafter, the parties are referred as they were arrayed in the suit.

4. The brief facts that are relevant for adjudication of this revision petition is that the plaintiff filed a suitrepresented by G.P.Aholder videO.S.No.137 of 2023 for suit for declaration of title. The defendants entered appearance and filed an application vide I.A.No.765 of 2023 under Order VII Rule 11of Code of Civil Procedure, 1908 seeking for rejection of plaint principally on the ground that the suit is barred by limitation and that the plaint does not disclose any cause of action.

Therefore, the suit is liable to be rejected.

5. The G.P.A. holder of the plaintiff has filed counter- affidavit resisting the said application and contended that the plaintiff executed General Power of Attorney on 09.08.2019. Unfortunately, she died on 23.11.2020, which was informed to him on 10.07.2023, by her daughter by name, Ms.Shireen Butz, andthereafter, the said Shireen Butzexecuted G.P.A. in favourof B.Aravind Reddy on 25.07.2023 and the same was validated before the District Registrar, Hyderabad. It is further averred that he being the Power of Attorney Holder, has authority to prosecute the case and is well aware of the facts and circumstances of the case. It is further averred that the application for rejection of plaint is frivolous and is filed only to drag court proceedings and the contentions that the plaint does not disclose any cause of actionand the suit is barred by limitation is untenable and liable to be rejected. It is further averred that the suit is maintainable and is within period of limitation and clearly disclose the cause of action in filing the suit and thus, prayed to dismiss the application.

6. While the application was pending for adjudication, defendant No.2 filed a memo to dismiss/reject the suit on the ground that the suit was filed by the plaintiff represented byher G.P.A. holder, executed on 09.08.2019. As per the averments made in the counter-affidavit filed in I.A.No.765 of 2023, the G.P.A holder specifically stated that the plaintiff expired on 23.11.2020 and the said fact was informed to himby her daughter on 10.07.2023 and thereafter,fresh deed of Power of Attorney was executed by daughter of plaintiff in favourof B.Aravind Reddyon 25.07.2023. It is specifically averred that admittedly, a suit was filed on 16.02.2023 and the plaintiff was expired on 23.11.2020. Therefore, the plaintiff was not alive as on the date of filing of the suit. Therefore, the deed of Power of Attorney, dated 09.08.2019 was not valid and was not in force. Therefore, the institution of the suit itself was without any authority and the same are illegal and therefore, the suit is not maintainable andliable to be rejected. It is further averred that as per Rules32 and 33 of Civil Rules of Practice and Circular Orders, 1980, it is mandatory to say that the power given to the attorney was subsisting as on the date of filing of the case. Since the plaintiff expired on 23.11.2020, the Power of Attorney was not subsisting as on the date of filing of the suit. Therefore, the suit is liable to be rejected/ dismissed.

7. A reply was filed on behalf of the plaintiff to the memo filed by defendant No.2. It is averred that the plaintiff expired on 23.11.2020 and the same was informed to the Power of Attorney on 10.07.2023 by Ms.Shireen Butz (daughter of the plaintiff), which is subsequent to filing of the suit a