Brij Mohan vs Madan Lal and Others

V.S. Aggarwal, J.—The present revision petition is directed against the judgment of the learned Additional District Judge, Ferozepur, dated 10.4.1995. By virtue of the impugned judgment the learned Additional District Judge had allowed the appeal filed by Madan Lal and instead dismissed the application filed by the respondent-plaintiff under Order 39, Rules 1 and 2 of the Code of Civil Procedure. Needless to state that during the pendency of the petition Madan Lal who had been arrayed as respondent No. 1 died and his legal representatives had been impleaded.

The relevant facts are that Brij Mohaff had filed a suit for specific performance against the respondent-defendant on the basis of alleged agreement to sell dated 12.12.1991. The agreement is purported to have been executed by Rattan Lal respondent No. 1 as general attorney of Nirmal Kumar, Surinder Kumar and M/s Raman Nand Manohar Lal for sale of properties consisting of 40 rooms situated in street Seth Raman Nand Wali, Ferozepur City. It was asserted that the first sale deed of 1/3 share of the disputed property was to be executed on or before 31.1.1992, the second sale deed of l/3rd share on 31.12.1992 and the third sale deed of l/3rd share to be completed on 30.12.1993. The respondent were stated to have failed to abide by the terms and conditions of the agreements which led to the filing of the suit for specific performance and possession. During the pendency of the suit, the petitioner had filed an application under Order 39 Rules 1 and 2 read with Section 151 of the CPC for grant of ad-interim injunction restraining the respondents from alienating the suit property. The learned trial Court on 22.4.1994 had granted ex parte ad interim injunction restraining defendants No. 1 to 4 from alienating the property in favour of any person.

The alleged attorney had taken up the defence that the agreement to sell is forged and a fabricated document. It has been brought into existence in connivance with the scribe and the attesting witnesses. He denied that the document was executed in favour of the petitioner at the instance or with the prior knowledge or authority of defendants No. 2 to 4. It was even denied that he was the attorney of defendants No. 2 to 4.

Defendants No. 2 to 4 filed their separate written statement. They contended that Rattan Lal had no authority to represent the firm. He had no authority to enter into an agreement. He was merely a Karinda having oral authority to collect the rent from various tenants. They alleged that the suit had been filed on false and vexatious allegations in collusion with defendant No. 1.

Madan Lal respondent had even filed his separate written statement. He also asserted that the agreement of sale that has been set up is a fabricated document. According to him, he purchased the property vide a registered sale deed executed on 26.3.1993. He further asserted that he had entered into agreement of sale of the property but because of stay granted by the Court, property could not be sold.

The learned trial Court after hearing the parties counsel affirmed the ad interim stay granted and restrained the defendants from alienating the property in question to any person. An appeal against the said order was preferred by Madan Lal. Learned Additional District Judge, Ferozepur, accepted the appeal and set aside the order passed by the learned trial Court. It was held that the plaintiff had no prima facie case because the purported agreement to sell clearly shows that Rattan Lal was not the attorney of defendants No. 2 to 4. Madan Lal had already purchased the property. Keeping in view these factors, the ad interim stay was vacated. Aggrieved by the same, the present revision petition had been filed.

The controversy in this Court was confined to the fact as to whether Rattan Lal was or could act as attorney of defendants No. 2 to 4. Strong reliance was placed on the fact that even in the written statement filed by respondents No. 2 to 4, it is Rattan Lal who had signed as attorney. I am afraid that on that ground it cannot be termed that Rattan Lal could even execute an agreement of sale with the petitioner. For that purpose, he needed a special general power of attorney or special power of attorney for a particular purpose. There is no such power of attorney forthcoming.

In fact, learned Additional District Judge, had rightly noted that in the alleged agreement of sale it has been explicity pointed that Rattan Lal is only a Karinda of defendants No. 2 to 4. He specifically further refers to the fact that he would produce the general power of attorney and get the sale deed executed. In fact, learned Additional District Judge notes that there was no such power of attorney in his favour. In the absence of any such power of attorney in favour of Rattan Lal from defendants No. 2 to 4, indeed, he could not execute the agreement of sale. The same prima facie was rightly noted to be without any authority while in the meantime the property had been sold to Madan La. Once there was no prima facie case, it would not be proper to grant ad interim injunction. There is thus no ground to interfere in the impugned judgment of the Additional District Judge. For these reasons, the revision petition being without any merit must fail and is dismissed.