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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.

(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 11th January, 1990 executed

by  the  General  Secretary  of  the  plaintiff-Marwari  Relief

Society.

(3) The  appellant-plaintiff  is  a  charitable  institution

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

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 19th

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  18th 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 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  8th

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

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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 4th 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

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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

to be produced through the applications dated 27th 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.

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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.