K. AKBAR ALI Vs. K. UMAR KHAN

JUDGEMENT

(1.) The Petitioner/Plaintiff filed a Civil Suit in the original side of the High Court of Judicature at Madras challenging the sale deed dated 2.6.2010 executed by the first defendant in favour of Defendant Nos.2 and 3, inter alia, on the ground that there is a pre-emption agreement dated 5.11.1998 executed between the Plaintiff and the first Defendant. The said agreement is said to be executed on the basis of the Power of Attorney executed by the first Defendant in favour of her son on 2.1.1989.

(2.) On the face of the averments in the plaint filed by the Petitioner/Plaintiff in Paragraph 3, the first Defendant, a permanent resident of Salem had given a Power of Attorney to her son, Mr. Zahir Ali to maintain and administer the suit property. The cause title of the plaint reveals that the Petitioner/Plaintiff impleaded the first Defendant as represented by her power agent A.J. Zahir Ali. While the suit was pending the first Defendant died whereupon her heirs were impleaded Defendant Nos. 4 to 9.

(3.) The Defendant Nos. 2 and 3 moved an application under Order VII Rule 11 of the Code of Civil Procedure, 1908, inter-alia, on the ground that there is no Power of Attorney authorising Zakir Ali to enter into any sale or preemption agreement. The learned Single Judge rejected the application filed by Defendant Nos. 2 and 3 on 15.9.2016. However, in appeal, the Division Bench of the High Court allowed the application and held that the Power of Attorney does not authorize the attorney to execute an agreement as the Power of Attorney was granted for conduct of Court proceedings only. Aggrieved by the order passed by the Division Bench of the High Court in appeal, the present Special Leave Petition has been preferred by the Petitioner/Plaintiff.