MAHESH MANGAL Vs. SHRIBHAGWAN MANGAL

JUDGEMENT

(1.) The present civil revision under Sec. 115 of Code of Civil Procedure has been preferred by petitioner- defendant No.1 challenging the order dtd. 25/3/2021 passed by Fourth Civil Judge, Class-II, Morena in RCSA.32 of 2021; whereby, the application filed by petitioner along with co-defendant Nos.4 and 5 under Order 7 Rule 11 read with Sec. 151 of CPC has been rejected.

(2.) It is submitted by learned counsel for the petitioner that knowledge of execution of power of attorney is an admitted fact which reflects from documents Annexures P-4 and P-5, i.e. power of attorney and partition deed. He has submitted his submission with regard to partition deed executed earlier. It is further submitted that the plaintiff was having knowledge of execution of power of attorney in the year 2002 and it is also admitted by the plaintiff, therefore, there is no need of further evidence. Therefore it submitted that the trial Court has wrongly rejected the application filed under Order 7 Rule 11 of CPC. In support of contention, he has placed reliance on the judgments passed by the Supreme Court as well as by the High Court in cases of Soumitra Kumar Sen vs. Shyamal Kumar Sen and Others:[(2018) 5 SCC 644] and Shrihari Hanumandas Totala vs. Hemant Vithal Kamat and Others: [(2021) 9 SCC 99]; Suraj Lamp and Industries Pvt. Ltd. vs. State of Haryana and Another:[2009(4) M.P.LJ. (SC) 315] ; Nanhibai vs. Govindrao:[2007(1) MPLJ 115], Anita Jain vs. Dilip Kumar and Another:[2018(1) MPLJ 555] and Ahmedsaheb (dead) by L.Rs. and Others vs. Sayad Ismial:[2012(4) MPLJ 571]. Hence, the impugned order deserves to be set aside by allowing this revision.

(3.) On the other hand, learned counsel for the respondent while opposing the contentions made by the learned counsel for the petitioner submitted that in the present case, an objection was raised on behalf of respondent No.1 that no power of attorney has been executed between the parties and the same is fabricated one, therefore, at this stage, no conclusion can be drawn in this regard. Therefore, the trial Court has rightly rejected the application filed under Order 7 Rule 11 of CPC by observing that there is a mixed question of law and fact. Hence, prayed for dismissal of this revision.