(Judgment of the Court was delivered by M.CHOCKALINGAM, J.,) Challenge is made to an order of a learned single Judge of this Court dated 29.10.2008 made in Application No.4715 of 2008 in C.S.No.955 of 2004, whereby an application for rejection of plaint was dismissed.
2. The Court heard the learned counsel on either side.
3. The suit C.S.No.955 of 2004 was filed by the 1st respondent/plaintiff seeking a direction to the defendants to executre a sale deed in terms of the agreement dated 19.08.2004 by receiving the balance of sale consideration. Pending suit, the appellant/1st defendant made the said application, seeking the rejection of the plaint. The respondents therein were given opportunity to file their counter. The learned single Judge, on a scrutiny of the materials available and on a consideration of the submissions made, took a view that the contentions putforth by the 1st defendant cannot attract Rule 11 of Order VII of Civil Procedure Code, to reject the plaint and hence, it was liable to be dismissed, and accordingly, dismissed the same. Aggrieved over the said order, the 1st defendant has broughtforth this appeal before this Court.
4. Admittedly, the 1st defendant educational institution, the owner of the suit property, executed a deed of power of attorney in favour of the 2nd defendant on 27.01.1993. On the strength of that power, the 2nd defendant has executed an agreement for sale in favour of the plaintiff on 19.08.2004. The only contention raised before the learned single Judge and equally here also is, it is true that though the power was given to the 2nd defendant in the year 1993 by a registered document, he was not given the power either to alienate or to encumber the property and hence, the cause of action cited in the plaint by the plaintiff was not maintainable in law. On the contrary, it was contended that at the time when the agreement was entered into between the power holder and the plaintiff, the power was in force and the said power was cancelled only subsequent to the date of the agreement. Under such circumstances, the plaint could not be rejected alleging that there was no cause of action for the suit.
5. After hearing both sides, the Court is of the considered opinion that the order of the learned single Judge cannot be interfered with. Admittedly, the power deed was executed on 27.01.1993, which was in force at the time when the sale agreement was entered into between the parties on 19.08.2004. On the strength of which, the plaintiff filed the suit C.S.No.955 of 2004 for the relief of specific performance and under such circumstance, the contention putforward by the 1st defendant, the owner of of the property, that the power holder was not given the power of alienation or to create encumbrance on the property, could be decided only on appreciation of evidence and also on merits and thus, it could be clear that it is not a case, where an order of rejection could be made, applying Rule 11 of Order VII, Civil Procedure Code and hence, the learned single Judge was perfectly in correct in rejecting the application filed by the 1st defendant. Under such circumstances, the appeal has got to be dismissed since it does not carry any merit.
Accordingly, the appeal fails and is dismissed, leaving the parties to bear their costs.