- (1.) Heard Shri Amit Manohar, learned counsel for the petitioner and Shri Gajendra Pratap Singh, learned Senior Counsel assisted by Shri Siddhartha Srivastava and Shri Manoj Kumar, learned counsel for the respondent no.3.
(2.) The applicant invoking the supervisory power of the High Court under Article 227 of the Constitution of India submits that the court below has committed material illegality in exercise of its jurisdiction. The facts in brief are that an original suit no. 982 of 2001 was filed on 20.8.2001 for declaration that the sale deed dated 2.8.2001 executed in favour of the defendant with regard to plot no. 6/2/72 situated in Vaishali, Ghaziabad, registered on 3.8.2001 is a forged and void document.The respondent no.3 Ramphool was impleaded as defendant. The plaint case is that from the inspection of the office record of Ghaziabad Development Authority, Ghaziabad, it transpired that the sale deed executed on 2.8.2001 does not contain the signature of the executor i.e. Secretary of Ghaziabad Development Authority, Ghaziabad and the signatures existing therein are forged. A First Information Report has also been lodged for forgery of the document. It is averred that the original record pertaining to the transaction is also misplaced. Shri Ramphool claims to be power of attorney holder of Indra Mohan Pal, on the basis of a registered deed executed on 3.4.2001. The said power of attorney authorised Ramphool to sign vakalatnama, appoint advocates and do Parivi of cases in the courts wherever any dispute arises with regard to plot no. 6/2/72 Vaishali, Ghaziabad Tehsil and District Ghaziabad, i.e. suit property. The deed of power of attorney further mentions that whatever the rights of the executor are there in the property whether specifically mentioned or not,all those rights would vest in the power of attorney holder and any act of the power of attorney holder would be admissible to the executor Indra Mohan Pal. A perusal of the sale deed dated 2.8.2001 further indicates that the names of both Indra Mohan Pal and Ramphool have been mentioned as vendees of the property.
(3.) The plaintiff had moved an application under Order 1 Rule 10, Order VI Rule 17 read with section 151 C.P.C. before the court below with the prayer that in the cause tittle of the plaint certain mistakes have crept in and Ramphool has wrongly been impleaded as defendant in his individual capacity, whereas he ought to have been impleaded as power of attorney holder of Indra Mohan Pal. This application was contested by the defendant Ramphool. The court below had rejected this application by order dated 28.2.2015 and the revision filed before the District Judge, Ghaziabad was also dismissed. The contention of the learned counsel for the applicant is that the prayer in the application no. 109 Ka was only to make correction in the description of the defendant in the cause title. The mistake was bonafide as name of Ramphool has been mentioned as vendee in the sale deed whereas in the written statement, defendant Ramphool had disclosed that a registered power of attorney had been executed in his favour by Indra Mohan Pal, who was the actual purchaser of the suit property. The plot was originally allotted to Indra Mohan Pal and sale consideration was paid by him. The defendant Ramphool has also filed counter claim claiming his right independent to that of Indra Mohan Pal on the basis of registered power of attorney dated 3.4.2001 and a registered agreement for sale dated 3.4.2001. The stand taken by him in written statement is that he is owner in actual possession of the suit property as power of attorney holder and has a right to transfer the suit property on the basis of the agreement dated 3.4.2001. The relief sought in the counter claim is that a sale deed may be executed by the court in his favour or in the alternative a fresh sale deed may be executed in the name of Indra Mohan Pal through him,in the event, the sale deed dated 3.8.2001 is declared null and void.;