PRABHU DAYAL LOHIA Vs. SHANKAR LAL FATEH CHANDAK

JUDGEMENT

(1.) This revisional application is directed against Order No. 77 dated July 27, 2012 passed by learned Judge, 3rd Bench, City Civil Court at Calcutta in Title Suit No. 1211 of 2005 by which an application under Order 12 Rule 6 of the Code of Civil Procedure is rejected. The plaintiff/petitioner filed the said suit for declaration that the power of attorneys executed by Hanuman Prasad Lohia, Niranjan Prasad Lohia, Viswanath Lohia on 06.10.1997, 07.10.1997 and 17.03.1992 respectively and the power of attorneys allegedly executed by Rakesh Lohia and Mohini Devi Lohia on 10.03.1998 and registered before the Registrar of Insurances, Calcutta be declared, void and non-est. A further declaration is sought declaring the sale deeds executed by the opposite party No. 1 in favour of the opposite party Nos. 2 to 6 in respect of the property situate in the State of Rajasthan is also void, illegal and non-est.

(2.) The factual matrix of the said case is that one Srinibas Lohia was the original owner of all that the various properties including a building and vacant land lying and situate at Tahasil, Lechmargarh, District. Sikar, Rajasthan. After the death of the said original owner, his four sons namely Hanuman Prasad Lohia, Niranjan Lohia, Hariprasad Lohia and Viswanath Lohia inherited the same and became the joint owners of the said property. It is further alleged that the aforesaid sons stayed outside the State of Rajasthan and occasionally visits the native place. On one of such visit, in the month of May, 1998, it was found that the said property was forcibly occupied by several trespassers and on inquiry, it came out that the opposite party No. 1 has sold, transferred and conveyed the said property to the opposite party Nos. 2 to 6 on the strength of the purported registered power of attorneys executed by the said four sons of Srinibas Lohia since deceased in his favour. It is further averred that a power of attorney was executed by said Ram Niranjan Lohia, Viswanath Lohia and Pawan Kumar Lohia being the legal heir of late Hari Prasad Lohia in favour of the plaintiff/petitioner which was duly registered in the office of Sub-Registrar, Laxmangarh, District- Sikar, Rajasthan, to look after the said property and to take necessary steps including the filing of the cases against the alleged trespassers and the opposite party No. 1. A criminal proceeding is initiated before the Chief Metropolitan Magistrate, Kolkata relating to the fraudulent power of attorneys alleged to have been executed by the aforesaid four sons in favour of the opposite party No. 1 which is still pending. In the aforesaid backdrop, the said suit has been filed seeking the declaration as indicated herein-before.

(3.) Interestingly the defendant Nos. 2 to 9 appeared and jointly filed an application that they have no objection if a decree, as prayed for, is granted. The said application further signifies the intention of the aforesaid defendants not to contest the suit, although, the summon is received by them. The said application contains the separate affidavit of each of those defendants affirmed before the Notary Public of the Government of West Bengal. Apropos the said application, the plaintiff/petitioner took out an application under Order 12 Rule 6 of the Code of Civil Procedure for a judgment on admission. In course of the hearing of the said application, the defendant/opposite party No. 8 appeared and prayed for a direction to file written statement. It is to be recorded that although the summons is served on the defendant/opposite party No. 1 but he did not appear and the suit remain ex parte against him. The Trial Court rejected the said application filed by the plaintiff/petitioner for judgment on admission solely on the ground that when the said defendant/opposite party No. 1 has appeared and intended to contest the suit, the question of judgment on admission would be considered after trial.