Allowed

Jayanthilal N Shah v. Rajkumar Menon

Karnataka HC13 Aug 2014WP/8926/2013

Case brief

AI extract

What is this about?

High Court rewrote writ petition challenging property suit orders. Court held trial courts overlooked documents proving a power of attorney revocation was bogus. Writ petitioner's petition allowed; orders set aside; matter remitted to trial court for fresh hearing with status quo remain in place. Petitioners restricted from dealing with properties meanwhile.

What did the court decide?

Orders of lower courts set aside and matter remitted for fresh hearing. Petitioners restrained from dealing with property till disposal of application.

Jayanthilal N Shah Vs Rajkumar Menon — Property and Title | Karnataka HC (2014)

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IN THE HIGH COURT OF KARNATAKA AT BANGALORE

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DATED THIS THE 13^TH DAY OF AUGUST 2014

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BEFORE

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THE HON’BLE MR. JUSTICE ANAND BYRAREDDY

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WRIT PETITION No.8926 of 2013 (GM-CPC)

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BETWEEN:

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Jayantilal N Shah, Son of Late N.P.Shah, Aged about 81 years, Residing at No.221, 1^st Floor, Nagarthpet, Bangalore – 560 002.

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2 Esha G Shah, Daughter of Sri Girish J Shah, Aged about 22 years, Residing at No.5/1, North Public Square, Basavanagudi, Bangalore – 560 004.

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Punit N Shah, Son of N.J.Shah, Aged about 25 years, Residing at No.106, Venkateshwara Market,

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120 Avenue Road, Bangalore – 560 002.

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…PETITIONERS

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(By Shri. Naganand, Senior Advocate for Shri. S. Sriranga, Advocate)

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AND:

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Rajkumar Menon, Son of Late K.T.B. Menon, Aged about 65 years, Residing at Sun Plaza, 2^nd Floor, No.19, Chetty Road, Chennai – 600006.

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R. Venkatesh, Son of Late M.V.Ramanna, Major, residing at No.21/1, 11^th Cross, Katthriguppa Main Road, Bangalore – 560 050.

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S. Raghunath, Son of Late H.S.Shankar, Major, Residing at No.306, 17^th C Main, 3^rd Block, Rajajinagar, Bangalore – 560 010.

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…RESPONDENTS

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(By Shri. R.Bhadrinath, Advocate for Caveator/Respondent No.1 Notice to Respondent nos.2 and 3 is dispensed with)

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This Writ Petition filed under Articles 226 and 227 of the Constitution of India praying to call for the records in O.S.No.562/2010 and to set aside the order dated 22.1.2013 passed in M.A.No.146/2012 by the Fast Track Court, Devanahalli, Annexure-U and dismiss the said application I.A.No.1, filed by the plaintiff/first respondent.

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This Writ Petition coming on for Preliminary Hearing in ‘B’ Group this day, the court made the following:

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ORDER

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The petitioners were defendants 3,4 and 5 in a suit

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pertaining to valuable lands measuring over 100 acre. It is the case of the plaintiff that he is the original owner of the land in question and though there was a power of attorney executed in favour of an agent to deal with the property, the same had been revoked by a registered deed of revocation. Inspite of the same, after the revocation of the power of attorney, sale deeds are said to have been executed in favour of the defendants and therefore, the suit to treat the said transaction as null and void and to

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injunct the defendants from transacting with the properties. That having been granted by the trial court, the same has been

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affirmed by the lower appellate court. It is this which is under challenge in the present proceedings.

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Apart from the several contentions that are raised, a

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significant objection to the suit is the fact that it is based on an alleged revocation of the General Power of Attorney, on the basis of which, the sale deeds had been executed. The present petitioners who are defendants 3,4 and 5 had very vehemently denied that there was any such revocation and that the power of attorney was valid and current as on the date of the execution of the sale deeds and since the deed of revocation, which was sought to be relied upon by the plaintiff was highly doubtful, the petitioners had applied for a certified copy of the very document, which was produced by the plaintiff as a deed of revocation of the power of attorney and were shocked to be informed by the Sub-Registrar, Chennai that no such document existed and the document which was numbered as No.151/1998 was not a deed of revocation of special power of attorney and was not executed by the principal, who was the

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first respondent, but pertained to totally different parties and the details of such document were also furnished, which clearly demonstrated that the document relied upon by the plaintiffs was a bogus document and could not be relied upon. Added to this, there were independent criminal proceedings initiated by defendants 3,4 and 5 as regards the plaintiff seeking to rely upon the bogus documents. The Police, in furtherance of their investigation, had sought permission of the trial court to obtain a copy of the document, which was the subject matter of a complaint and in this regard, had requested the Sub-Registrar, Chennai to furnish a certified copy of the document and the Sub-Registrar, Chennai is said to have issued an endorsement again to reiterate that there is no such document as deed of revocation of special power of attorney, registered as Document No.151/1998. The copy of the said endorsement was also produced. Therefore, the learned Senior Advocate is at pains to urge the first principle that no doubt this court sitting in writ jurisdiction would not interfere with an order

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passed by the court below in exercise of its discretionary power unless it has committed an illegality or unless the order suffers an infirmity of the court having overlooked the documents, which were available or arrived at findings which are not relatable to any documents produced. In the present case on hand, though the documents were available to demonstrate that the so-called deed of revocation of power of attorney was a bogus document before the trial court as well as the lower appellate court, the courts have religiously ignored the same and there is no reference in either of the orders of the courts below to this document and therefore, the court below has overlooked the documents that are available in weighing the merits of the case of the parties and hence it has resulted in a miscarriage of justice warranting interference by this court in its writ jurisdiction.

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While the learned Counsel for the respondents would vehemently oppose this petition and would contend that even during the pendency of this petition, there was a direction by

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this court to the respondents to secure a letter or a certified copy of the document, to show that the deed of revocation of power of attorney was a genuine document executed before the said authority. In that endeavour, the learned Counsel for the respondents has now filed a copy of the deed of revocation of the power of attorney, which is attested by the Registrar, Central Chennai, to endorse that the xerox copy of the original taken is verified, but, it does not indicate that it is a certified copy of the original. Therefore, there was a further argument on either side as to whether there was due compliance of the order of this court. Any further orders passed directing the parties to obtain the certified copies or to investigate further as to whether the document was genuine or otherwise is not a welcome exercise. However, it is to be noticed that both the courts below had not referred or addressed the documents now highlighted, namely, document no.1 produced along with a memo dated 15.7.2011 before the trial court and Document no.4 filed along with a memo dated

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6.6.2012 before the trial court. Therefore, it is necessary for

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the courts to have dealt with these documents even in arriving at prima facie findings. For it is certainly a case of concern for the defendants who have invested huge amounts of money in purchasing these properties and now being restrained from dealing with the properties indefinitely.

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While not expressing any opinion as to the

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genuineness or otherwise of the said document, the matter requires to be reconsidered by the trial court with reference to

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the documents above referred and such other documents which may be relevant, at the time of arguments when the matter is taken up for fresh hearing. It is needless to say that the parties shall maintain status-quo in the meanwhile.

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The writ petition is allowed and the order of the trial court as well as the appellate court are set aside and the matter shall be heard afresh with reference to the documents that are already on record, but to which there is no reference by the courts below. Accordingly, the matter shall be remitted to the

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trial court for fresh consideration. In the meanwhile, there shall be ad-interim order of injunction against the present petitioners from dealing with the property in any manner till the disposal of the application. Having regard to the facts and circumstances of the case, where much is at stake, for both the parties, it is necessary that the court below shall endeavour to address the application and dispose of the same, within a period of four weeks, if not earlier, from the date of receipt of a copy of this order. The consideration of the application for injunction will

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not interfere with the progress of the suit which is on, and that shall independently continue.

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Sd/JUDGE

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Jayanthilal N Shah v. Rajkumar Menon

Case brief

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Jayanthilal N Shah v. Rajkumar Menon

Case brief

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