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SUPREME COURT OF INDIA
INDIRA BANERJEE, HEMANT GUPTA, JJ.
K. AKBAR ALI – APPELLANT
VERSUS
K. UMAR KHAN & ORS. - RESPONDENTS
SPECIAL LEAVE PETITION (CIVIL) NO. 31844 OF 2018
Decided On : 12-02-2021
(A) Civil Procedure Code, 1908 – Order VII Rule 11 – Rejection of plaint – Cause of action – Clever drafting creating illusions of cause of action are not permitted in law and a clear right to sue should be shown in plaint – Similarly, Court must see that bar in law of suit is not camouflaged by devious and clever drafting of plaint – While considering application under Order VII Rule 11 of CPC, question before Court is whether plaint discloses any cause of action or whether suit is barred by any law, on face of averments contained in plaint itself – While considering application under Order VII Rule 11 of CPC Court is not to look into strength or weakness of case of plaintiff or defence raised by defendant – Application under Order VII Rule 11 of CPC for rejection of plaint requires a meaningful reading of plaint as a whole – Provisions of Order VII Rue 11 are not exhaustive – Court has inherent power to see that frivolous or vexatious litigations are not allowed to consume time of Court. (Paras 5 and 7)
(B) Power of Attorney Act, 1882 – Section 2 – Civil Procedure Code, 1908 – Order VII Rule 11 – Rejection of plaint – Where on face of averments in plaint, claim in a suit is based on an agreement executed through a Power of Attorney holder, Court is not debarred from looking into Power of Attorney – It is open to Court to read terms of Power of Attorney along with plaint in same manner as documents appended to plaint which form part of plaint. (Para 9)
(C) Agreement to Sell – Pre-emption Agreement – Power of Attorney – To confer a right and to bind owner, there has to be a valid Power of Attorney – In absence of valid Power of Attorney, no right will accrue to plaintiff – There is no clause permitting attorney to sell property or to enter into any agreement to sell – In absence of any such clause in Power of Attorney, Defendant No. 1 cannot be bound by acts of her son – Purported pre-emption agreement does not give any right to plaintiff to file suit – Suit is not maintainable – Inter-se dispute between heirs of deceased-Defendant No. 1 will not confer any right on petitioner as his claim is based upon a pre-emption agreement executed by a power of attorney, which does not authorize attorney to deal with property of defendant – Plaintiff has no cause of action against first defendant being owner of suit property, Power of Attorney being patently invalid – High Court has done substantial justice by nipping in bud a suit which is ex-facie not maintainable for want of cause of action against defendants – Special Leave Petition dismissed. (Paras 10 to 14)
Facts of the case:
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, 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. Division Bench of the High Court allowed the application and held that 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. Aggrieved by the order passed by the Division Bench of High Court in appeal, the present Special Leave Petition has been preferred by the Petitioner/Plaintiff.
Findings of Court:
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. The entire basis of filing of a suit is the pre-emption agreement dated 5.11.1998 executed by a Power of Attorney holder.
Result : Special Leave Petition dismissed.
ORDER :
1. 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.
2. 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.
3. 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 preemption 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. Aggrieved by the order passed by the Division Bench of the High Court in appeal, the present Special Leave Petition has been preferred by the Petitioner/Plaintiff.
4. 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.
5. 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.
6. 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.
7. In any case, an application under Order VII Rule 11 of the CPC for rejection of the plaint requires a meaningful reading of the plaint as a whole. As held by this Court in ITC v. Debts Recovery Appellate Tribunal reported in AIR 1998 SC 634, clever drafting creating illusions of cause of action are not permitted in law and a clear right to sue should be shown in the plaint. Similarly the Court must see that the bar in law of the suit is not camouflaged by devious and clever drafting of the plaint. Moreover, the provisions of Order VII Rue 11 are not exhaustive and the Court has the inherent power to see that frivolous or vexatious litigations are not allowed to consume the time of the Court.
8. In this case, a meaningful reading of the pl
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