Babu SV v Rajesh B Menon & Others

# **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** # **`PRESENT`** ## **`THE HONOURABLE MR. JUSTICE P.SOMARAJAN`** ``` MONDAY, THE 18[TH] DAY OF SEPTEMBER 2023 / 27TH BHADRA, 1945 ``` ## **`OP(C) NO. 1607 OF 2022`** ``` AGAINST THE ORDER/JUDGMENT OS 221/2010 OF MUNSIFF COURT,ALUVA ``` ## **`PETITIONER/DEFENDANT NO-1:`** ``` BABU SV., S/O VELAYUDHAN, AGED 57 YEARS, SASTHAMPARAMBIL HOUSE, PALLIPPURAM, MARAMBILLY VILLAGE. KUNNATHUNADU TALUK, ALUVA, ERNAKULAM DISTRICT-682310, ``` ``` BY ADVS. JEEVAN MATHEW MANAYANI JOHNSON MANAYANI ``` ## **`RESPONDENTS/PLAINTIFF/DEFENDANT NO.2 TO 6:`** ``` 1RAJESH B MENON S/O BALAGOPALA MENON, AGED 53 YEARS, MANGATT HOUSE EDAPPALLY P. O., ERNAKULAM DISTRICT-682 024. 2PRADEEP PALOKKARAN S/O LATE JOHN, AGED 69 YEARS, CHALAKKUDY PO. CHALAKKUDY EAST VILLAGE, CHALAKKUDY TALUK, TRICHUR DISTRICT-680 307. 3DAVIS S/O LATE MATHAI, AGED 59 YEARS, PUTHUSSERY HOUSE, KARUKUTTY PO VAZHACHAL, KARUKUTTY VILLAGE, ALUVA TALUK, ERNAKULAM DISTRICT-683 576. 4JINCY W/O DAVIS, AGED 51 YEARS, PUTHUSSERY HOUSE, KARUKUTTY P. O., VAZHACHAL, KARUKUTTY VILLAGE, ALUVA TALUK, ERNAKULAM DISTRICT-683 576. ``` ``` 5WILSON S/O OUSEPH, AGED 63 YEARS, PATHAPPILLY HOUSE, JORDAPURAM PO.. POTHIAKKARA, VAZHACHAL, ``` ``` OP(C) Nos.1607/2022 & 1745/2022 ``` ``` 2 ``` ``` MATTOOR VILLAGE, ALUVA TALUK, ERNAKULAM DIST-683574. ``` ``` 6SAJI AGED 58 YEARS W/O WILSON, PATHAPPILLY HOUSE, JORDAPURAM PO, POTHIAKKARA, VAZHACHAL, MATTOOR VILLAGE, ALUVA TALUK, ERNAKULAM DIST-683574. ``` ``` THIS OP (CIVIL) HAVING COME UP FOR HEARING ON 18.09.2023, ALONG WITH OP(C).1745/2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` OP(C) Nos.1607/2022 & 1745/2022 ``` ``` 3 ``` # **`IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT`** ``` THE HONOURABLE MR. JUSTICE P.SOMARAJAN MONDAY, THE 18[TH] DAY OF SEPTEMBER 2023 / 27TH BHADRA, 1945 ``` ``` OP(C) NO. 1745 OF 2022 ``` ``` AGAINST THE ORDER/JUDGMENT OS 221/2010 OF MUNSIFF ``` ``` COURT,ALUVA ``` ## **`PETITIONERS/RESPONDENTS 5 AND 6/ DEFENDANTS 5 AND 6:`** ``` 1WILSON AGED 56 YEARS SON OF OUSEPH, RESIDING AT PATHAPALLY HOUSE, JORDANPURAM P.O POTHIYAKKARA, MATTOR VILLAGE, ALUVA TALUK, ERNAKULAM DISTRICT, PIN - 683574 ``` ``` 2SAJI AGED 51 YEARS WIFE OF WILSON, RESIDING AT PATHAPALLY HOUSE, JORDANPURAM P.O POTHIYAKKARA, MATTOR VILLAGE, ALUVA TALUK, ERNAKULAM DISTRICT., PIN - 683574 ``` ``` BY ADVS. ANIL PRASAD C.N.SREEKUMAR MANJU PAUL SABU P.JOSEPH LIJO VARGHESE BEYON T. VARGHESE ARYA K.K. ``` ## **`RESPONDENTS/PETITIONER AND RESPONDENTS 1 TO 4 AND 7/PLAINTIFF`** ``` AND DEFENDANTS 1 T 4 AND 7 : ``` ``` 1RAJESH B. MENON, AGED 44 YEARS SON OF BALAGOPALA MENON, RESIDING AT MANGAT HOUSE, EDAPALLY P.O, ERNAKULAM DISTRICT., PIN - 682025 ``` ``` OP(C) Nos.1607/2022 & 1745/2022 ``` ``` 4 ``` ``` 2BABU AGED 47 YEARS SON OF VELAYUDHAN, RESIDING AT THAPPARAMBIL HOUSE, PALLIPURAM DESOM, NARAMPILLY VILLAGE, KUNNATHUNADU TALUK, ERNAKULAM DISTRICT., PIN - 680732 3PRADEEP PALOKARAN AGED 60 YEARS SON OF JOHN, RESIDING AT PALOKARAN HOUSE, PALACE ROAD, CHALAKUDY P.O, CHALAKUDY EAST VILLAGE, MUKUNDAPURAM TALUK, THRISSUR DISTRICT., PIN - 680307 4DAVIS AGED 50 YEARS SON OF LATE MATHAI, RESIDING AT PUTHUSSERY HOUSE, KURUKUTTY P.O, VAZHACHAL, KARUKUTTY VILLAGE, ALUVA TALUK, ERNAKULAM DISTRICT., PIN - 683576 5JINCY AGED 42 YEARS WIFE OF DAVIS, RESIDING AT PUTHUSSERY HOUSE, KARUKUTTY P.O., VAZHACHAL, KARUKUTTY P.O, VAZHACHAL, KARUKUTTY VILLAGE, ALUVA TALUK, ERNAKULAM, DISTRICT, PIN - 683576 6K.K. POULOSE AGED 50 YEARS SON OF KURIAKOSE, KULANGARA HOUSE, THURAVOOR KARA, THURAVOOR VILLAGE, THURAVOOR P.O, ANGAMALY., PIN - 683572 R1 BY ADV. S GOPAKUMAR R1 BY ADV. BINITHA R2 BY ADV. JEEVAN MATHEW MANAYANI R2 BY ADV. JOHNSON MANAYANI(K/452/1979) ``` ``` THIS OP (CIVIL) HAVING COME UP FOR HEARING ON 18.09.2023, ALONG WITH OP(C).1607/2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` OP(C) Nos.1607/2022 & 1745/2022 ``` ``` 5 ``` ## **`JUDGMENT`** ``` The defendant No.1, 5 and 6 came up aggrieved by the second amendment application submitted by the plaintiff and the order passed ``` ``` by the trial court allowing the same. ``` ``` 2. The court should always be vigilant and cautious so as to avoid unwarranted litigation or statutorily prohibited litigation on account ``` ``` of bar of limitation. In every suit, the court is duty bound to see that the suit was filed within time irrespective of whether any question ``` ``` of limitation was taken up, raised by the opposite party. In fact, it is an initial duty ``` ``` statutorily recognized under Section 3 of the ``` ``` Limitation Act. It is not permissible to bring ``` ``` up a suit regarding a relief which has become unenforceable due to bar of limitation. The ``` ``` legal position is very much settled by the Apex ``` ``` OP(C) Nos.1607/2022 & 1745/2022 ``` ``` 6 ``` ``` Court in Lachhman Singh v. Hazara Singh [(2008) 5 SCC 444] & Ashis Kumar Hazra v. Rubi Park Co- Operative Housing Society Ltd. [AIR 1997 SC ``` ``` 2724]. Hence, there cannot be any escape for any court and they are bound by the statutory duty under Section 3 of the Limitation Act. ``` ``` 3. The present suit and the various orders passed by the trial court based on amendment application is yet another example in which the trial court utterly failed in discharging its functions. It is a suit filed by the plaintiff for cancellation of a registered power of attorney and to declare that the documents which were executed by the power of attorney holder are null and void. Subsequent amendment applications were allowed, by which, a prayer for recovery of plaint schedule property, which is the subject of document of transfer executed by the power holder was allowed to be incorporated without going into the question of limitation as a ``` ``` OP(C) Nos.1607/2022 & 1745/2022 ``` ``` 7 ``` ``` preliminary issue and that has vitiated every further proceedings of the trial court including ``` ``` the various orders passed on the amendment application. It is a case, wherein a registered power of attorney was executed by the plaintiff in favour of the power holder who in turn executed various sale deeds. The power of attorney is of the year 2004. The suit was admittedly filed after the expiry of three year period available to set aside the abovesaid documentation (deed of transfer) executed by the ``` ``` power holder. No prayer was incorporated in the ``` ``` suit either to set aside those documents or for its cancellation presumably on the reason that the relief of setting aside the document stood hopelessly barred by limitation. I am at a loss ``` ``` to understand under what provision the abovesaid sale deeds would stand as null and void. The relief sought is to declare that the abovesaid documents are null and void. The relief for ``` ``` OP(C) Nos.1607/2022 & 1745/2022 ``` ``` 8 ``` ``` cancellation of registered power of attorney can be exhausted by the principal by another document of cancellation and not by a suit, for which there cannot be any cause of action. But, the cancellation of earlier registered power of attorney would operate only from the date of its cancellation by the principal. It may not affect the earlier acts and deeds done by the power holder by virtue of the power given under the power of attorney. Hence, the impugned order will stand set aside. ``` ``` Both the O.P.(C) will stand allowed with a direction to the trial court to take up the issue of limitation as a preliminary issue before proceeding further in the matter. ``` ## **`Sd/-`** ## **`P.SOMARAJAN JUDGE`** ``` SPV ``` ``` OP(C) Nos.1607/2022 & 1745/2022 ``` ``` 9 ``` ## **`APPENDIX OF OP(C) 1607/2022`** ``` PETITIONER EXHIBITS ``` |`Exhibit P1`|`TRUE COPY OF THE ORIGINAL SUIT`| |---|---| ||`NO.221/2010 FILED BEFORE THE HON'BLE`| ||`DISTRICT COURT, DT 29.4.2010`| |`Exhibit P2`|`TRUE COPY OF THE WRITTEN STATEMENT`| ||`FILED BY THE PETITIONER IN OS`| ||`NO.221/2010 DT 27.2.2021 FILED BEFORE`| ||`THE HON'BLE MUNSIFF'S COURT, ALUVA`| |`Exhibit P3`|`TRUE COPY OF THE WRITTEN STATEMENT`| ||`FILED BY THE 2ND DEFENDANT IN THE SUIT`| ||`WHO IS THE 2ND RESPONDENT HEREIN DT`| ||`17.11.2010 FILED BEFORE THE HON'BLE`| ||`MUNSIFF'S COURT, ALUVA`| |`Exhibit P4`|`TRUE COPY OF THE PETITION FILED BY THE`| ||`PETITIONER DT 10.11.2021 IN IA`| ||`NO.6/2021 IN OS NO 221/2010 IS FILED`| ||`BEFORE HON'BLE MUNSIFF'S COURT, ALUVA`| |`Exhibit P5`|`TRUE COPY OF THE ORDER IN IA NO.6/2021`| ||`IN OS NO.221/2010 DT 11 2.2022 OF THE`| ||`LEARNED MUNSIFF COURT, ALUVA`| |`Exhibit6`|`TRUE COPY OF OP(C) NO 703/2022 DT`| ||`10.3.2022 FILED BEFORE THE HON'BLE`| ||`HIGH COURT OF KERALA`| |`Exhibit P7`|`TRUE COPY OF THE TRANSFER PETITION`| ||`NO.65/2022 DT 4.4.2022`| |`Exhibit P8`|`TRUE COPY OF THE AMENDMENT APPLICATION`| ||`DT 2.4.2022 IN IA NO. 12/2022 IN OS`| ||`NO.2010`| |`Exhibit P9`|`TRUE COPY OF OBJECTIONS OF THE 2ND`| ||`RESPONDENT TO EXT P8 DT 8.4.2022`| |`Exhibit P10`|`TRUE COPY OF THE OBJECTION FILED BY`| ``` OP(C) Nos.1607/2022 & 1745/2022 ``` ``` 10 ``` ``` THE RESPONDENTS 5&6 TO EXT P8 DT 4.4.2022 ``` ``` Exhibit P11 ``` ``` TRUE COPY OF ORDER OF THE MUNSIFF COURT, ALUVA DT 3.8.2022 IN IA NO. 12/2022 IN OS NO.2212010 ``` ## `RESPONDENT’S EXHIBITS: NIL` ``` //TRUE COPY// ``` ``` PA TO JUDGE ``` ``` OP(C) Nos.1607/2022 & 1745/2022 ``` ``` 11 ``` ## **`APPENDIX OF OP(C) 1745/2022`** ``` PETITIONER EXHIBITS ``` |`Exhibit P1`|`TRUE COPY OF THE PLAINT IN O.S. NO.`|`TRUE COPY OF THE PLAINT IN O.S. NO.`| |---|---|---| ||`221 OF 2010 OF THE MUNSIFF COURT,`|| ||`ALUVA`|| |`Exhibit P2`|`TRUE COPY OF THE I.A. NO. 12 OF 2022`|| ||`IN O.S. NO.221 OF 2010 OF THE MUNSIFF`|| ||`COURT, ALUVA`|| |`Exhibit P3`|`TRUE COPY OF THE COUNTER AFFIDAVIT`|| ||`FILED`|`BY THE PETITIONERS/DEFENDANTS 5`| ||`AND 6`|`IN I.A. NO. 12 OF 2022 IN O.S.`| ||`NO. 221 OF 2010 OF THE MUNSIFF COURT,`|| ||`ALUVA`|| |`Exhibit P4`|`TRUE COPY OF THE COUNTER AFFIDAVIT`|| ||`FILED`|`BY THE 1ST DEFENDANT IN I.A. NO.`| ||`12 OF`|`2022 IN O.S. NO. 221 OF 2010 OF`| ||`THE MUNSIFF COURT, ALUVA`|| |`Exhibit P5`|`TRUE COPY OF THE COUNTER AFFIDAVIT`|| ||`FILED`|`BY THE 2ND DEFENDANT IN I.A. NO.`| ||`12 OF`|`2022 IN O.S. NO. 221 OF 2010 OF`| ||`THE MUNSIFF COURT, ALUVA`|| |`Exhibit P6`|`TRUE COPY OF THE COUNTER AFFIDAVIT`|| ||`FILED`|`BY THE DEFENDANTS 3 AND 4 IN`| ||`I.A. NO. 12 OF 2022 IN O.S. NO. 221 OF`|| ||`2010 OF THE MUNSIFF COURT, ALUVA`|| |`Exhibit P7`|`TRUE COPY OF THE ORDER DATED 03-08-`|| ||`2022 IN I.A. NO.12 OF 2022 IN O.S. NO.`|| ||`221 OF 2010 OF THE MUNSIFF COURT,`|| ||`ALUVA`|| |`RESPONDENT’S`|`EXHIBITS:`<br>`NIL`|| ||`//TRUE COPY//`|| ||`PA TO JUDGE`||