SUMITRA RAJE Vs. ANIL KAK

JUDGEMENT

(1.) BEING aggrieved by order dated 4.2.2011 passed by 9th Addl. District Judge, Indore in Civil Suit No. 175-A/2010, whereby the application filed by the petitioner under Order VII Rule 11 CPC for rejection of the plaint was dismissed, present petition has been filed.

(2.) SHORT facts of the case are respondent filed a suit on 22.11.2010 for declaration and permanent injunction alleging that petitioner is one of the daughters of late Maharani Sharmishtha Devi Holkar. Petitioner is having a daughter Smt. Gangesh Kumari and two sons Jagat Rao and Ashish Dalvi, each from separate husband in sequence. In the suit it was alleged that respondent is the son-in-law of the petitioner. Further case of the respondent was that Smt. Sharmishtha Devi Holkar, mother of the petitioner died in 1993 leaving behind two wills dated 23.8.78 and 4.11.1992. It was alleged that by the first will she bequeathed her entire estate to her eldest daughter Sushri Sharada Raje Holkar, while in the later, there were many beneficiaries including the petitioner and her children. It was alleged that to protect the interest of the petitioner respondent participated in number of litigations. Further case of the respondent was that petitioner executed a Power of Attorney in favour of respondent dated 24.4.2008 and thereafter subsequent irrevocable Power of Attorney dated 2.10.2009. It was alleged that petitioner's sons, who are unemployed and in financial difficulties, in conspiracy with the opposing relatives in a planned manner forced the petitioner to revoke the Powers of Attorney dated 24.4.2008. It was further alleged that either in duress petitioner has cancelled the said Power of Attorney, that too without knowing the contents or with malafide intention and ulterior motive after getting a huge consideration as against both the earlier and existing irrevocable power of attorney dated 02/10/09. It was alleged that vide notice dated 13.10.2010 petitioner also cancelled irrevocable Power of Attorney dated 2.10.2009. In the suit it was alleged that respondent has spent a huge amount of Rs.72,83,735/- in litigation to save the interest of the petitioner, which also includes medical expenses, maintenance and comforts of the petitioner. In the suit it was alleged that after cancelling the irrevocable Power of Attorney dated 2.10.2009 petitioner changed her Counsel and is trying to obtain the compromise decree in the partition suit. It was alleged that the only idea is to settle the matter with other parties after partition of the property and dispose of the same as early as possible. In the suit it was alleged that if the petitioner succeeds in the same and disposes of her share, the respondent, who is having lien on her share, will be deprived of the reimbursement of the amount of expenses already incurred on behalf of the petitioner as also deprived of getting compensation from the petitioner. In the suit it was prayed that it be declared that the Power of Attorney dated 2.10.2009 executed by the petitioner in favour of the respondent is irrevocable Power of Attorney and was continued to be valid. It was prayed that it be declared that respondent is entitled to act for and on behalf of the petitioner in pursuance to the irrevocable Power of Attorney dated 2.10.2009. It was prayed that permanent injunction be issued in favour of respondent, whereby petitioner be restrained from selling, alienating or creating third party rights in her share with the property of late Maharani Sharmishthabai Holkar. Alongwith the suit an application for temporary injunction was also filed, wherein similar type of injunction was prayed. After service of summons an application was filed by the petitioner under Order VII Rule 11 CPC, wherein it was alleged that the suit as filed is not maintainable and is barred by law and also vexatious and, therefore, the suit be dismissed. The application was opposed by the respondent. After hearing the parties learned trial Court dismissed the application against which present petition has been filed.

(3.) SHRI R.S.Laad, learned counsel appearing for respondent, submits that the suit can be dismissed under Order VII Rule 11 CPC only if the suit does not disclose the cause of action or the relief claimed is under valued or the plaint is submitted on insufficient stamps or the suit is barred by any law. It is submitted that since the contention of the petitioner is not covered in any of the clauses mentioned under Order VII Rule 11 CPC, therefore, the learned trial Court committed no error in dismissing the application filed by the petitioner. It is submitted that the suit has been filed by the respondent to protect the interest of the petitioner as the petitioner is an old lady. It is submitted that respondent has spent a huge amount of Rs.72,83,735/- in litigation and also to take care of the petitioner for a continuous period of 25 years. It is submitted that since the respondent has spent a huge amount, therefore, the respondent is having a vested right in the property and in the circumstances the nature of the Power of Attorney, which was given to the respondent, was irrevocable and the same cannot be cancelled. It is submitted that the plea, which has been raised by the respondent, is to be decided by the learned trial Court after recording of evidence. It is submitted that in the facts and circumstances of the case petition filed by the petitioner has no merits and the same be dismissed.