Full Judgment Text
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NON-REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL No(s). 3048 OF 2019
(Arising out of SLP(C) No(s).28208 OF 2018)
MARWARI RELIEF SOCIETY APPELLANTS(s)
VERSUS
AMULYA KUMAR SINGH RESPONDENT(s)
J U D G M E N T
BANUMATHI, J.:
(1) Leave granted.
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(2) This appeal arises out of judgment and order dated 24
April, 2018 passed by the High Court of Jharkhand at Ranchi in
Writ Petition (C) No.430 of 2012 in and by which learned Single
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Judge of the High Court set aside Orders dated 8 September,
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2010 and 21 November, 2011 thereby setting aside the order
passed by the Trial Court to receive the additional documents,
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namely, the Power of Attorney dated 11 January, 1990 executed
by the General Secretary of the plaintiff-Marwari Relief
Society.
(3) The appellant-plaintiff is a charitable institution
Signature Not Verified
Digitally signed by
MAHABIR SINGH
Date: 2019.04.04
13:34:42 IST
Reason:
incorporated under the Indian Companies Act, 1913 and manages a
health resort at Ranchi which is known as Marwari Arogya
Bhawan. According to the appellant-plaintiff, there are
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several residential cottages and also rooms. The person who is
availing the facility in the said Society is granted leave and
licence to occupy a designated cottage/room on payment of
maintenance charges and other establishment charges like
electricity charges etc. Case of the appellant-plaintiff is
that the respondent-defendant was granted licence to occupy a
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residential cottage w.e.f. 4 August, 1982 for which he was
liable to pay maintenance charges at the rate of Rs.500/- per
month and the electrical charges at the rate of Rs.100/- per
month and other establishment charges. Alleging that the
respondent has not paid the maintenance charges, the appellant-
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plaintiff issued a legal notice through its advocate on 19
August, 1987, calling upon the respondent to make payment of
Rs.20,900/- and further calling upon him to vacate the
cottage/quarter. After issuing the notice, the appellant-
plaintiff filed an Eviction Title Suit NO.5 of 1991 before the
Court of the Subordinate Judge at Ranchi. According to the
appellant-plaintiff along with the plaint certain documents
were filed about which clear reference was made in the plaint.
(4) The said suit was decreed ex-parte by the Trial Court on
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24 September, 1992. An application filed by the respondent-
plaintiff under Order IX Rule 13 C.P.C. for setting aside the
ex-parte decree and restoring the suit in its original number,
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was dismissed by the Trial Court on 18 December, 1995.
Thereafter, the respondent-plaintiff preferred another appeal
before the Appellate Court which was allowed and the ex-parte
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decree dated 24 September, 1992 was set aside and the restored
to its original number. Admittedly, the suit was originally
filed before Sub-Judge Court NO.V; but after restoration, the
same was placed before Sub-Judge Court No.VII. It appears that
during the transit, the documents filed along with the plaint
were either missing or not traceable. Thereafter, the suit was
again transferred from Sub-Judge Court NO.VII to Sub-Judge
Court NO.V.
(5) Before Sub-Judge Court NO.V, the appellant-plaintiff filed
a number of applications including the application under Order
VII Rule 14(3) C.P.C. to file the documents which were filed
along with the plaint and said to be not traceable. The said
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application was allowed by the Sub-Judge Court No.V on 8
September, 2010 permitting the applicant to file the documents
which were filed along with the plaint, namely, (i) Copy of
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original application dated 4 August, 1982 executed by the
respondent-defendant; (ii) Copy of the Advocate’s Notice dated
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19 August, 1987; and (iii) Copy of Registration Receipt for
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the above notice dated 19 August, 1987. In the said order
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dated 8 September, 2010, the Trial Court has passed a detailed
order for receiving those documents. Be it noted that Order
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dated 8 September, 2010 was not challenged then and there by
the respondent-defendant.
(6) Subsequently, the appellant-plaintiff has filed another
application under Order VII Rule 14(3) C.P.C. praying for
filing the original Power of Attorney executed by the
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plaintiff-Society in favour of Ramnandan Prasad. That
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application was also allowed on 21 November, 2011. Both the
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orders, namely, 18 September, 2010 and 21 November, 2011
were challenged by the respondent-defendant in Writ Petition
(c) No.430 of 2012 which came to be allowed by learned Single
Judge, as pointed out in para ‘2’ above.
(7) We have heard Devashish Bharuka, learned counsel appearing
for the appellant-plaintiff and Mr. Kumar Parimal, learned
counsel appearing for the respondent-defendant. We have
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perused the orders dated 8 September, 2010 and 21 November,
2011 and also perused the impugned judgment and the
evidence/materials on record.
(8) As pointed out earlier the suit was restored by the
Appellate Court to its original number and it was transferred
to Sub-Judge Court NO.VII and then again transferred to Sub-
Judge Court No.V. By perusal of the plaint, it is seen that
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para ‘2’ of the plaint refers to Agreement dated 4 August,
1982 and para ‘12’ of the plaint refers to the eviction notice
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sent by the appellant-plaintiff through their advocate on 19
August, 1987. So far as the General Power of Attorney is
concerned, learned counsel appearing for the appellant-
plaintiff has drawn our attention to the verification as per
which the plaint was verified by Ramnandan Prasad in his
capacity as a “ constituted agent and attorney of the plaintiff ”. It
is not as if the power of attorney has been sought to be
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brought on record for the first time when the application was
filed in the year 2011. In the impugned judgment, learned
Single Judge has observed that except at the verification
portion, there is no reference that Ramnandan Prasad is a
“constituted agent and attorney of the plaintiff” and there are
no averments in the plaint in respect of the documents sought
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to be produced through the applications dated 27 August, 2010
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and 14 June, 2011.
(9) Considering the averments made in the plaint, in our view
learned Single Judge was not right in observing that there are
no averments made in the plaint in respect of the documents
sought to be produced through the said applications. As
pointed out earlier, there is clear reference to the documents
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viz., Agreement dated 4 August, 1982 and the notice issued by
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the appellant-plaintiff on 19 August, 1987 to the respondent
for payment of arrears and calling upon him for vacating the
quarter. Though the cause-title of the plaint does not state
that the appellant-Marwari Relief Society is represented
through Ramnandan Prasad, however, the verification of the
plaint clear states that Ramnandan Prasad is a “ constituted agent
” which in our considered view is
and attorney of the plaintiff
sufficient to hold that plaint has been filed by the power of
attorney holder who is a duly “constituted agent”. Learned
Single Judge fell in error in not keeping in view the averments
made in the plaint and due verification of the plaint.
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(10) Resultantly, the impugned order is set aside and the
appeal is allowed. Since the suit is of the year 1992, the
Trial Court is directed to proceed with the suit pending before
it in accordance with law and dispose of the same
expeditiously.
.........................J.
(R. BANUMATHI)
.........................J.
(R. SUBHASH REDDY)
NEW DELHI,
MARCH 14, 2019.