Mahaveer Chand and Others vs Vishwanth Reddy and Others

Mohan M. Shantana Goudar, J.—The order dated 19.1.2013 allowing I.A. Nos. XI and 12 filed by the plaintiffs seeking to reopen the case and seeking permission to mark the registered General Power of attorney dated 3.7.1978 executed by one Mr. Champalal in favour of defendant No. 8 is called in question in these writ petitions.

The respondents herein filed the suit for specific performance based on the agreement of sale dated 6.8.2001 stated to have been executed by defendant No. 8 in favour of the plaintiffs. Defendant No. 8 is stated to be the General Power of Attorney holder from Champalal. The said Champalal is the husband of defendant No. 1 and father of defendant Nos. 2 to 7. In other words, the case of the plaintiffs is that the propositus of defendants 1 to 7, namely, Champalal agreed to sell the property in question through the Power of Attorney holder under an agreement of sale dated 6.8.2001 and that the plaintiffs have paid a sum of Rs. 10,00,000/- as an advance sale consideration towards purchase of the suit property.

During the pendency of the suit, defendant No. 8 being the Power of Attorney of Champalal filed applications I.A. Nos. 7 to 10 seeking certain reliefs including recalling of DW1 for cross-examination; seeking permission to adduce the evidence of defendant No. 8; seeking permission to produce the registered General Power of Attorney and seeking reopening of the } defendants'' side. AM these applications came to be rejected by the Court below on 27.6.2012. Subsequently, the plaintiffs-respondents herein filed I.A. Nos. XI and XII seeking permission to reopen the case of the plaintiffs and permit them to adduce further evidence by marking registered General Power of Attorney dated 3.7.1978 along with the sketch. The said applications are allowed by the impugned order.

Sri Anantha Krishnamurthy, learned advocate appearing for the petitioners submits that since almost the very prayer sought for by defendant No. 8 was rejected by the Court below on 27.6.2012, the similar prayer could not have been asked for by the plaintiffs. In other words, he submits that the principle of res judicata applies. He relies upon the decision of the Apex Court in the case of U.P. State Road Transport Corporation Vs. State of U.P. and Another, (2005) 1 ACC 51 : AIR 2005 SC 446 : (2004) 10 JT 173 : (2004) 10 SCALE 28(2) : (2004) 10 SCALE 28 : (2005) 1 SCC 444 : (2004) AIRSCW 7025 : (2005) 1 Supreme 656 to contend that the principle of res judicata applies to two stages in the same litigation.

The said submissions are opposed by the learned counsel appearing on behalf of the respondents who argued in support of the order of the Court below. He submits that pursuant to the impugned order, the registered General Power of Attorney is already marked before the Court below and the defendants-petitioners herein have participated in the proceedings after reopening of the case at the time of further examination of D.W. 1; accordingly, the proceedings before the Court below have almost reached finality.

It is no doubt true that the principle of res judicata would apply to two stages in the similar litigation depending upon the facts and circumstances of the case. As has been held by the Apex Court in the case of A. Shanmugam Vs. Ariya Kshatriya Rajakula Vamsathu Madalaya Nandhavana Paripalanai Sangam Represented by Its President etc., AIR 2012 SC 2010 : (2012) 3 RCR(Civil) 1 : (2012) 4 SCALE 666 : (2012) 6 SCC 430 : (2012) AIRSCW 3017 : (2012) 3 Supreme 460 duty of Courts to discern truth from pleadings, documents and arguments of parties. Ultimately, the anxiety of the Court is to find out truth and to decide the matter correctly based on the material on record.

In the matter on hand, while deciding I.A. Nos. 7 to 10, the Court below has not decided any issues touching the merits of the case. The Court below rejected the said applications on the ground that there is no conflict between defendants 1 to 7 on one side and defendant No. 8 on the other. Defendant No. 8 is none other than the brother of Champalal (husband of defendant No. 1 and father of defendants 2 to 7). The said Champalal stated to have executed General Power of Attorney which is registered in favour of defendant No. 8, i.e., his own brother. In turn, based on such General Power of Attorney, defendant No. 8 has agreed to sell the property in question in favour of the plaintiffs. In this view of the matter, an application came to be filed by the plaintiffs before the Court below seeking direction to defendant No. 8 to produce registered General Power of Attorney. The Court below stated to have directed defendant No. 8 to produce the registered General Power of Attorney. In this view of the matter, the plaintiffs are justified in making application for marking the registered General Power of Attorney in order to substantiate their case. The entire case of the plaintiffs depends on the validity of the said registered General Power of attorney dated 3.7.1978.

Since the order passed by the Court below is just and proper, no interference is called for. Accordingly, petitions fail and same stand dismissed.