M. JOHN KOTAIAH Vs. A. DIVAKAR

JUDGEMENT

(1.) THE main question involved in this revision is as to whether the power of attorney executed by the 2nd defendant in favour of the petitioner -plaintiff on 8 -1 -1977 prima facie satisfies the legal requirements for being construed as an irrevocable power of attorney. This is a revision preferred by the plaintiff in O.S. No. 2380/82 on the file of the 3rd Assistant Judge' City Civil Court, Hyderabad. The suit was filed for the grant of a perpetual injunction restraining the defendants from interfering with the plaintiff's possession and management of the plaint schedule properties and from demolishing item 1 of the plaint schedule. The schedule to the plaint consists of two items. Item No. 1 is a double storied building bearing No. 5 -9 -195, Chiragalli Lane, Hyderabad while the second item is a vacant site admeasuring 1393 square yards bearing No. 5 -9 -88/1 and 2 at Paten Maidan, Chapel Road, Hyderabad. Pending suit the petitioner prayed for the issue of a temporary injunction restraining the defendants -respondents from interfering with petitioner's possession and management of the schedule mentioned properties and more particularly from demolishing item 1 of the plaint schedule. The trial Court instead of granting an injunction thought it fit to appoint an Advocate Receiver to take possession of the suit properties for management by leasing out the same to tenants and depositing the rents into court. On appeal preferred by the defendants -respondents the learned appellate judge allowed the appeal by holding that Ex. A -1 power of attorney created an interest in the immovable property and therefore required registration under Sec. 17 of the Registration Act and was inadmissible in evidence. For coming to that conclusion the learned appellate judge held that inasmuch as the document entitled the agent to execute lease deeds on behalf of the principal it must be taken that the document itself created an interest in the immoveable property in favour of the petitioner -plaintiff. Having thus held the document inadmissible for purpose of Registration Act the learned appellate Judge considered Sections 202 to 206 of the Indian Contract Act and came to the conclusion that the document Ex. A -1 was not an irrevocable power of attorney. In the result he held that there was no prima facie case made out by the plaintiff for the grant of an injunction or for the appointment of a receiver. The appeal was allowed. This revision is preferred against the above order of the lower appellate Court.

(2.) IT is contended in this revision by the learned counsel for the petitioner plaintiff Sri G Narayana Rao, that Ex. A -1 must prima facie be construed in law as an irrevocable power of attorney inasmuch as it is clearly recited therein that the principal cannot revoke the document for a period of ten years. It is also urged that the document created an interest in favour of the petitioner and that under Section 202 of the Indian Contract Act such an interest was sufficient to bring the document within the conditions necessary for treating it as an irrevocable power of attorney. It is also argued that the interest created by the document in favour of the agent was different from an interest in immovable property referred to in under Section 17 of the Registration Act and that Ex. A -1 does not require registration. A power to grant leases is different from a lease itself. It is argued that the petitioner has spent a sum of Rs. 77,000/ - as an Agent and is also entitled to commission or remuneration under the deed and that therefore the document must be treated as an irrevocable power of attorney.

(3.) THE only point that therefore arises for consideration is whether the petitioner has made out a prima facie case for the grant of an injunction or for the appointment of a receiver?