Marwari Relief Society vs Amulya Kumar Singh

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.

(2) This appeal arises out of judgment and order dated 24th

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

Judge of the High Court set aside Orders dated 8th September,

2010 and 21st November, 2011 thereby setting aside the order

passed by the Trial Court to receive the additional documents,

namely, the Power of Attorney dated 11 th January, 1990 executed

by the General Secretary of the plaintiff-Marwari Relief

Society.

(3) Signature Not Verified

The appellant-plaintiff is a charitable institution Digitally signed by MAHABIR SINGH Date: 2019.04.04

incorporated under the Indian Companies Act, 1913 and manages a 13:34:42 IST Reason:

health resort at Ranchi which is known as Marwari Arogya

Bhawan. According to the appellant-plaintiff, there are 2

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

residential cottage w.e.f. 4th 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-

plaintiff issued a legal notice through its advocate on 19 th

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

24th 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,

was dismissed by the Trial Court on 18 th December, 1995.

Thereafter, the respondent-plaintiff preferred another appeal

before the Appellate Court which was allowed and the ex-parte 3

decree dated 24th 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

application was allowed by the Sub-Judge Court No.V on 8 th

September, 2010 permitting the applicant to file the documents

which were filed along with the plaint, namely, (i) Copy of

original application dated 4th August, 1982 executed by the

respondent-defendant; (ii) Copy of the Advocate’s Notice dated

19th August, 1987; and (iii) Copy of Registration Receipt for

the above notice dated 19th August, 1987. In the said order

dated 8th September, 2010, the Trial Court has passed a detailed

order for receiving those documents. Be it noted that Order

dated 8th 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 4

plaintiff-Society in favour of Ramnandan Prasad. That

application was also allowed on 21st November, 2011. Both the

orders, namely, 18th September, 2010 and 21st 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

perused the orders dated 8th September, 2010 and 21st 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

para ‘2’ of the plaint refers to Agreement dated 4 th August,

1982 and para ‘12’ of the plaint refers to the eviction notice

sent by the appellant-plaintiff through their advocate on 19th

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 5

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

to be produced through the applications dated 27 th August, 2010

and 14th 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

viz., Agreement dated 4th August, 1982 and the notice issued by

the appellant-plaintiff on 19th 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

and attorney of the plaintiff” which in our considered view is

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. 6

(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.