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IN THE HIGH COURT OF KARNATAKA, BANGALORE

DATED THIS THE 12TH DAY OF AUGUST, 2014

BEFORE

THE HON'BLE MR. JUSTICE ARAVIND KUMAR

MISCELLANEOUS FIRST APPEAL No.5663 OF 2010 (CPC)

BETWEEN: SRI.M.KRISHNAPPA S/O. LATE MUNISWAMAPPA RESIDING AT NO.2937/38/1 SERVICE ROAD, VIJAYANAGAR BANGALORE …APPELLANT (BY SRI.AMIT DESHPANDE, ADV.,) AND: 1. SRI.K.T.SRINIVAS AGED ABOUT 69 YEARS S/O. LATE KABADI THANASA 2. SRI K.S.GIRIDHARI AGED ABOUT 44 YEARS S/O. K.T.SRINIVAS 3. SRI.K.S.KRISHNAMURTHY AGED ABOUT 42 YEARS S/O. SRI.K.T.SRINIVAS 4. SRI.K.S.PADMANABHA AGED ABOUT 36 YEARS S/O. SRI.K.T.SRINIVASA 5. SRI.K.S.AMARNATH AGED ABOUT 36 YEARS S/O. SRI.K.T.SRINIVAS ALL ARE RESIDING AT # H-61 SULTAN PET, BANGALAORE 560 053.

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6. SMT.H.LATHA AGED ABOUT 38 YEARS RESIDING AT # 95 B.E.M.L LAYOUT BASAVESHWARANAGAR BANGALORE – 560 079 7. SRI.M.HUCCHE GOWDA AGED ABOUT 60 YEARS S/O. MAREGOWDA RESIDING AT # 322 B.E.M.L. LAYOUT BASAVESHWARANAGAR BANGALORE – 560 079 8. SMT. NAGAMMA W/O. SRI.PUTTEGOWDA RESIDING AT NO.8 VIJAYANAGAR BANGALORE – 560 040 9. SMT.P.HANUMAKKA AGED ABOUT 38 YEARS W/O. G.H.RAMACHANDRA RESIDING AT @ 290/1 B.E.M.L. LAYOUT HALAGE DEVARA HALLI V BLOCK BANGALORE – 560 039 10. SRI.R.SHANKARAPPA MAJOR S/O. LATE RAMAKRISHNAPPA RESIDING AT KENCHANAHALLI BANGALORE – 560 039 11. SRI.DEVARAJU MAJOR RESIDING AT # 570 6TH A CROSS, 8TH MAIN HAL III STAGE BANGALORE – 08 12. SMT.KAMALAMMA AGED ABOUT 68 YEARS

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W/O. LATE HANUMANTHAPPA RESIDING AT MALLASANDRA DASANAPURA HOBLI BANGALORE NORTH TALUK 13. SMT.K.NIRMALA AGED 50 YEARS D/O. LATE MUNISWAMY RESIDING AT NO.128 V.R.LAYOUT, VIJAYANAGAR BANGALORE – 40 14. S.JAGADISH MAJOR S/O. LATE SANJEEVAIAH RESIDING AT NO.1483 11TH A CROSS 4TH MAIN ROAD, 2ND STAGE WEST OF CHORD ROAD BANGALORE 15. SRI.B.KRISHNAPPA AGED 65 YEARS S/O. BIDDAPPA RESIDING AT NO.11 DASAGOPANTHGALLI SUNKALPET BANGALORE – 22 16. K.NARASIMHA AGED ABOUT 37 YEARS S/O. B.KRISHNAPPA RESIDING AT NO.685 11TH CROSS, 4TH MAIN M.C. LAYOUT MAGADI ROAD BANGALORE – 23 17. SRI.HEMANTHA KUMAR AGED ABOUT 44 YEARS S/O. SRI.MADANLAL SUJI METAL INDUSTRIES 8TH CROSS, RIGHT SIDE MAGADI ROAD

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BANGALORE – 23 18. SRI.K.SRINIVASA AGED ABOUT 40 YEARS S/O.B.KRISHNAPPA RESIDING AT NO.685 11TH CROSS, 4TH MAIN M.C.LAYOUT, VIJAYANAGAR BANGALORE – 40 19. SRI.T.CHANDRASHEKAR AGE 48 YEARS S/O. THRUVANGADA SHETTY NO.27, 8TH CROSS MAGADI ROAD BANGALORE – 23 20. SMT.ANURADHA AGE 49 YEARS W/O. SRI.T.CHANDRASHEKAR RESIDING AT NO.27, 8TH CROSS MAGADI ROAD BANGALORE – 560023

… RESPONDENTS

(BY SRI.SREEVATSA, SR.COUNSEL AND SRI.H.S.SOMNATH, ADV., FOR R1- 5; SRI. SHASHIKIRANSHETTY, SR.COUNSEL AND SMT. FARAH FATHIMA, ADV., FOR R7 AND 14; SRI. A.HANUMANTHAPPA, ADV., FOR R8; SRI.RAGHUNATH, ADV., FOR R19; R6, 10, 12, 16, 17 AND 20 ARE SERVED NOTICE TO R9, 13, 15 & 18 ARE DISPENSED WITH; APPEAL ABATED AGAINST R11 V/O DT.21.11.13)

THIS MFA IS FILED UNDER ORDER 43 RULE 1(r)

R/W SEC. 151 OF CPC AGAINST THE ORDER DATED

29.5.2010 PASSED ON IA.NO.1 IN O.S.NO.2000/2004 ON

THE FILE OF VII ADDITIONAL CITY CIVIL JUDGE,

BANGALORE, ALLOWING IA NO.1 FILED UNDER ORDER

39 RULE 1 AND 2 OF CPC FOR T.I.

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THIS MFA COMING ON FOR ADMISSION THIS DAY, THE COURT DELIVERED THE FOLLOWING:

JUDGMENT

Controversy in this appeal revolves around grant

of temporary injunction in favour of plaintiffs by

allowing I.A.No.1 and restraining defendant Nos.1, 8, 10

to 17, their agents, servants or anybody on their behalf

claiming through them from interfering with peaceful

possession and enjoyment of suit property by plaintiffs

and directing them not to put up any construction over

suit schedule property during pendency of the suit.

These defendants have also been directed not to put up

any permanent structure in the suit property till further

orders. 17th defendant being aggrieved by said order has

preferred present appeal.

2. Factual matrix in brief leading to filing of

this appeal can be crystallized as under;

Plaintiffs claiming to be owners of property bearing

Sy.No.65 (Old No.23) measuring 6 acres 30 guntas

situated at Mylasandra Village, Kengeri Hobli, Bangalore

South Taluk (hereinafter referred to as “suit property”

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for brevity) sought for an order of perpetual injunction

against defendants from interfering with their

possession and they are also seeking for a decree that

all acts done by defendant Nos.1 to 16 are beyond the

scope of General Power of Attorney dated 15.10.1992 as

without authority and ab-initio null and void,

contending interalia that said property was purchased

by first plaintiff under a registered sale deed dated

22.08.1962 and plaintiffs are in actual and peaceful

possession and enjoyment of the same. They also

contend that second defendant had approached

plaintiffs to purchase suit property and an agreement of

sale was entered into between plaintiffs and second

defendant on 27.01.1991 and they further pleaded that

plaintiffs have incurred heavy expenditure for

construction and by paying necessary conversion

charges and betterment charges to concerned

departments. They also specifically pleaded that

defendant Nos.1 to 16 had approached them to execute

a General Power of Attorney in their favour for purposes

of obtaining permission from Government Departments

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as they are not aware of legal procedures and

obligations involved and in this regard, they executed a

General Power of Attorney on 15.10.1992 for the

purposes specifically mentioned in said General Power

of Attorney. They further contended that on account of

defendants not fulfilling the obligations cast on them

under General Power of Attorney and as they had

abandoned powers granted to them and agreement

executed in their favour have not been acted upon.

They also contended that defendants have no manner of

right, title or interest over suit property as such, they

questioned acts of defendant Nos.1 to 16 for having

executed sale deed in favour of 17th defendant in the

month of May 2003 on the ground that defendant Nos.

1 to 16 have no right to execute such documents.

Plaintiffs further contended that immediately thereafter,

they got issued a legal notice on 06.08.2003 notifying

defendants not to interfere with their possession and

untenable reply was sent by defendant Nos.1 to 16.

They further contended that documents of sale in favour

of 17th defendant is void ab-initio not binding, as such,

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they contended that they terminated or revoked General

Power of Attorney dated 15.10.1992 executed by them

in favour of defendant Nos.1 to 16 by issuance of notice

of revocation and also by deed of revocation on

22.04.2004 and by getting it duly registered in Sub-

Registrar office, Kengeri. They further contend that

after such revocation defendants are attempting to

interfere with plaintiffs possession and also attempting

to put up construction, foundation etc., and hence they

being unable to prevent the mischief of defendants, they

sought for permanent injunction and in aid of main

relief, they sought for grant of temporary injunction.

3. On service of suit summons defendant Nos.4

and 6 appeared before Trial Court and filed their written

statement denying averments made in the plaint. They

specifically contended that subsequent to execution of

sale agreement dated 27.01.1991 plaintiffs had also

executed an agreement of sale and General Power of

Attorney on 15.10.1992 and these two documents came

into existence on the same day. They also contended

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that they have paid necessary conversion charges to the

jurisdictional revenue authorities including betterment

charges for conversion of suit property from agricultural

to non-agricultural – residential purposes. They also

further pleaded that as per registered agreement of sale

deed dated 15.10.1992, plaintiffs have received full sale

consideration from defendant Nos.1 to 16. They

claimed to have taken possession of suit property from

plaintiffs. They also specifically contended that

agreement of sale dated 15.10.1992 and General Power

of Attorney of even date are two contemporaneous

documents having came into existence on the same day

and Power of Attorney executed by plaintiffs is an

agency coupled with interest. Hence, on these grounds

and as pleaded in the written statement, they sought for

dismissal of suit. They adopted the written statement as

objections to I.A.No.I.

4. 17th defendant who is a subsequent

purchaser and who is appellant in this appeal had also

appeared on suit summons being served and has filed

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his written statement denying averments made in the

plaint and contended that he is a bonafide purchaser

for value without notice. It was contended that

agreement of sale dated 15.10.1992 and Power of

Attorney of even date has been duly executed by

plaintiffs in favour of 1st defendant and by virtue of said

authority he along with defendant Nos.2 to 16, had

executed a sale deed dated 22.05.2003 in his favour

and as such, revocation of Power of Attorney

subsequently on 22.02.2004 would have no effect on

sale transaction entered into between defendant Nos.1

to 16 on one hand and 17th defendant on the other

hand. Hence, for reasons pleaded in his written

statement, 17th defendant sought for dismissal of suit.

Defendants also filed a Memo that written statement

filed by them be construed as objections to application

I.A.No.1 filed by plaintiffs seeking temporary injunction.

5. Trial Court after considering the pleadings of

parties and after appreciating the contents raised by

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respective learned advocates appearing for parties

formulated following points for its consideration.

(i) Whether the plaintiffs have made out a

strong prima facie case?

(ii) In whose favour the balance of

convenience lies?

(iii) Whether the plaintiff is entitled for

temporary injunction?

(iv) What order?

6. After evaluating pleadings and upon

deliberating contentions raised by learned advocates,

Trial Court allowed I.A.No.1 and granted an order of

temporary injunction in favour of plaintiffs and at the

same time has also put the plaintiffs also on terms

namely has directed plaintiffs also should not to put up

any construction over suit property during pendency of

suit. In other words, it has directed both parties to

maintain status-quo. Reasons assigned by Trial Court

for granting an order of temporary injunction in favour

of plaintiff is that conversion order dated 17.07.1992

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which defendants as well as plaintiffs produced relating

to suit property evidencing conversion of said land from

agricultural to non-agricultural-residential purposes is

in the name of plaintiffs and as such, it has to be

presumed that plaintiffs have applied for conversion of

land vide Paragraph 16 of the order under challenge.

Trial Court also has held that there is no prima facie

material to show that defendants have paid entire

consideration to plaintiffs as agreed to under Agreement

of Sale dated 17.01.1991 and as such, it accepted the

say of plaintiffs that sale transaction is incomplete and

still defendants are due to plaintiffs and balance

amount of Rs.23,18,535/- is payable by defendant Nos.

2 to 16 and it is prima facie probable and acceptable

plea. Trial Court also found that Clause 8 of General

Power of Attorney dated 15.10.1992 does not specifically

authorize or empower defendants 2 to 16 to alienate or

sell or encumber suit property, as such, it has held

there is no specific and valid authority under General

Power of Attorney in favour of defendant Nos.1 to 16 to

sell the property. It also accepted the plea put forward

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by the plaintiffs that General Power of Attorney dated

15.10.1992 has also been revoked by a registered

document on 22.02.2004 which is binding on

defendants. Trial Court also held that sale transaction

between defendants 1 to 16 and 17th defendant

has taken place after revocation of GPA i.e., on

22.02.2004 and after filing of the suit in March 2004

and validity thereof will have to be considered at the

time of trial and as such it had granted an order of

temporary injunction. It found that construction is yet

to commence and as such, it has held at Paragraph 28

of its order that it would be appropriate and proper to

direct both parties to maintain status-quo by

concluding that there is a prima facie case and balance

of convenience in favour of plaintiffs. Hence, it has

allowed the application for grant of temporary

injunction vide order dated 29.05.2010 which is under

challenge in this appeal.

7. I have heard the arguments of Sri.Amit

Deshpande, learned counsel appearing for appellant,

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Sri.Sreevatsa, learned Senior Counsel appearing on

behalf of Sri. H.S.Somnath for respondent Nos.1 to 5

and Sri.Shashikiran Shetty, learned Senior Counsel

appearing on behalf of respondent No.7 and 14. Other

respondents namely respondent Nos.6, 10, 12, 16, 17

and 20 are served and not represented. Notice to

respondent Nos.9, 13, 15 and 18 has been dispensed

with. Appeal against respondent No.11 has stood

abated.

8. It is the contention of Sri.Amit Deshpande,

learned counsel appearing for appellant that plaintiffs

are guilty of suppression of facts namely they have not

sated anything with regard to agreement of sale dated

15.10.1992, though defendants have pleaded

specifically about said fact in Paragraph Nos.4 and 6 of

their written statement and contends non-consideration

of this vital aspect by trial Court has resulted in great

prejudice to appellant. He would also drawn the

attention of Court to the date of filing of the suit in

question which was on 15.03.2004 and contends there

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was no order of temporary injunction operating till

status quo or temporary injunction came to be passed

on 29.05.2010 and this itself would indicate that no

hardship or inconvenience would have been caused to

plaintiffs, if temporary injunction had been refused. He

would also submit that agreement of sale dated

15.10.1992 and General Power of Attorney of even date

executed by plaintiffs in favour of defendant Nos.1 to 16

are two contemporaneous documents having come into

existence on the same date and agency created by

plaintiffs in favour of defendant Nos.1 to 16 is an agency

coupled with interest and revocation of same is

impermissible under Section 202 of the Contract Act.

He would contend that revocation of Power of Attorney

by notice dated 22.02.2004 is much later to execution of

sale deed by defendant Nos.l to 16 in favour of

17th defendant on 22.05.2003 and as such revocation of

GPA by plaintiffs is of no consequence. He would also

submit that Trial Court having held that

9th defendant has expired and his legal representatives

having not been brought on record, it ought to have

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held that cause of action does not survive inasmuch as,

it was a joint and inseparable cause of action pleaded in

the suit and as such, suit itself ought to have been

dismissed. He would also elaborate his contentions by

contending that Trial Court having held that layout

work is in progress, it ought to have formulated material

point for its consideration namely, with regard to

irreparable loss and injury and non formulation of said

point itself has vitiated the Order under challenge, as

such, he prays for allowing of the appeal and dismissal

of application and he also submits that balance of

convenience as well as irreparable loss and injury that

would be caused by continuing temporary injunction

would be more to 17th defendant and subsequent

purchasers who purchased from 17th defendant more

than 104 sites and non consideration of this vital aspect

by trial court has resulted in occasioning a great failure

in administration of justice. Hence, he prays for

allowing the appeal and prays for dismissal of I.A.No.I

filed by plaintiffs before trial Court.

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9. Per contra, Sri.Sreevatsa, learned senior

counsel appearing on behalf of plaintiffs ie., respondent

Nos.1 to 4 would support the order under challenge and

contends that very agreement of sale dated 15.10.1992

which is now propounded by 17th defendant did not see

its light before Trial Court and as such, plaintiffs did

not have opportunity to rebut the same. Hence, he

submits that non consideration of these documents by

Trial Court was just and proper and Trial Court was

fully justified in not examining the said document and

there is no fault committed by the Trial Court in this

regard. He would also submit that conversion order

undisputedly was on 07.07.1992 i.e., subsequent to

agreement of sale dated 27.01.1991 and before General

Power of Attorney dated 15.10.1992 and during this

interregnum period, plaintiffs had spent huge amounts

by remitting conversion and betterment charges to

revenue authorities, as such, Trial Court having noticed

these facts has rightly held that plaintiffs have a prima

facie case in their favour. He would also elaborate his

contentions by contending that construing two

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documents namely agreement of sale dated 15.10.1992

as well as General Power of Attorney of even date to be

construed as contemporaneous documents would not

arise for the reason that there is no reference in

agreement to General Power of Attorney or vise-versa,

and as such, it cannot be construed that there exists

nexus to these documents to be construed as

contemporaneous documents. Hence, he supports the

order passed by Trial Court. He would also further

contend that even accepting or assuming that two

documents came to be entered into between parties

namely two Agreements of Sale dated 27.01.1991 and

15.10.1992 consideration amount shown in these two

documents are different and this aspect not having been

explained by first defendant gives scope for doubting

these two documents and as such, it is a fit case where

during the pendency of trial status-quo has to be

preserved in the interest of justice. He would also

contend that General Power of Attorney which has been

relied upon very heavily by defendant No.17 did not

authorize defendant Nos.1 to 16 to sell suit property in

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favour of 17th defendant and Clause 8 would not

specifically empower the attorney to sell suit schedule

property in favour of 17th defendant and words which

are not found in the Clause cannot be read into by

taking recourse to other recitals in the documents and

as such, finding given by Trial Court in this regard does

not suffer from either irregularity or patent illegality.

Hence, he prays for dismissal of the appeal.

10. Sri.Shashkiran Shetty, learned Senior

Counsel appearing for respondent Nos.7 and 14 would

also support the appellant namely 17th defendant and

contends that for nearly 6 years there was no order of

temporary injunction operating in favour of plaintiffs

and this very fact itself would indicate that there is

neither balance of convenience nor prima facie case in

favour of plaintiffs and no irreparable loss and injury

would have been caused to plaintiffs, if such an order

was not passed in favour of plaintiffs. Hence, he would

also pray for allowing the appeal by supporting 17th

respondent.

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11. Having heard the learned advocates

appearing for parties and on perusal of order under

challenge and after considering rival contentions,

following points would arise for my consideration;

(i) Whether order passed by Trial Court on

29.05.2010 allowing I.A.No.1 filed by

plaintiffs under Order 39 Rule 1 and 2

by granting an order of temporary

injunction in favour of plaintiffs and also

directing plaintiffs not to put up any

permanent structure in the suit schedule

property till further orders is to be

affirmed or reversed?

(ii) What order?

RE-POINT NO.(I):-

12. Facts as pleaded by respective parties in

their respective pleadings have already been delved

upon herein above. If this Court to re-state the said

fact, it would amount to repetition of facts and as such,

this court will delve upon the pleadings of parties.

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13. The necessary ingredients which requires to

be considered by Courts while considering an

application for grant of temporary injunction as held by

Hon’ble Apex Court and this Court are; (1) Prima facie

case (2) Balance of convenience (3) irreparable loss and

injury. These three ingredients are necessarily required

to be considered, examined and adjudicated by Courts

while considering an application for grant of temporary

injunction. Keeping this in mind, let me examine as to

whether plaintiffs have established or proved that these

three ingredients are present in their favour for granting

of an order of temporary injunction against defendants.

14. At the out set, it requires to be noticed that

plaintiffs have admitted in their plaint that there was an

agreement of sale executed by them in favour of

defendant Nos.1 to 16 on 15.07.1991 vide Paragraph 6.

They also admit receipt of consideration as reflected in

said agreement. Suit in question has been filed on

15.03.2004 and along with plaint an application for

grant of temporary injunction has been filed. Said

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application was not pressed for a period of 8 years i.e.,

order under challenge came to be passed in 2014. In

other words, it would clearly indicate that there was no

hardship caused to plaintiffs by non-granting of ad-

interim order of temporary injunction.

15. Be that as it may. Defendant Nos.4 and 6

who appeared on service of suit summons filed their

written statement and contended that subsequent to

execution of agreement dated 15.07.1991, same was

abandoned and subsequently another agreement of sale

came into existence i.e., on 15.10.1992. It has been

specifically contended in Paragraph 3 of written

statement to the following effect:

“3. These defendants submit that

plaintiffs as the owner of the schedule

property executed the Regd. General Power of

Attorney in favour of the defendant Nos.1 to

16 to look after, maintain, and alienate the

suit schedule property and same has been

registered as document No.133/1992-93

Book IV, ADR Volume 12, pgs. 17 to 22 dtd.

15.10.92 and Sale Agreement dtd.

15/10/1992 vide Regd. No.4697/1992-93,

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Book No.1 respectively both the documents

registered in the office of the Sub-Registrar,

Kengeri, Bangalore. These defendants submit

that after the Agreement of Sale, as a

G.P.Holder for the plaintiffs have applied for

conversion of Bangalore District, Bangalore.

Accordingly, the Deputy Commissioner,

Bangalore District, Bangalore accorded the

said conversion. These defendants along with

other defendants have paid the necessary

conversion charges with Taluk Treasury vide

Challan No.SLR.6 & 7 dated 4-5-1992. after

the payment of conversion charges to the

Deputy Commissioner, Bangalore District.

Bangalore issued official

Memorandum/Conversion Sanction

Certificate vide B.DIS.ALN.SR(S) 394/91-92

dated 7/7/1992 for Non-Agricultural

residential purposes. These defendants

submit that as per Regd. Power of Attorney

dated 15/10/1992, Clause 8 of the G.P.A. ,

the defendants 1 to 16 have authority and

execute any Deed, document or instrument

with liberty to file present, produce or admit

the same before any authority as may be

found necessary. These defendants have

given full authority to alienate or admit the

same before any authority by the plaintiffs.

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These defendants submit that as per Regd.

Agreement of Sale dated 15th Oct. 1992 the

plaintiffs have received the full sale

consideration from the defendants 1 to 16,

and delivered the vacant possession of the

schedule property to the defendants 1 to 16.

These defendants submit that the Power of

Attorney and Agreement of Sale are coupled

with agency of interest and now the plaintiffs

have already lost the right, title and interest

over the Schedule property. The plaintiffs

having parted the possession of the schedule

property with the defendants 1 to 16, the

plaintiffs cannot seek any relief from the

hands of this Hon’ble Court. Hence, the suit

is liable to be dismissed ib-limine.”

16. Defendants have also pleaded in the very

same Paragraph that these two documents have been

duly registered in office of Sub-Registrar on the very

same day. However, plaintiffs did not rebut said plea

for reasons best known. The fact that plaintiffs have

executed these two documents namely, Agreement of

sale and GPA on 15.10.1992 also cannot be disputed for

yet another reason. These two documents have been

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registered on same day in the same office of Sub-

Registrar for registration. Signatures found on both

documents would prima facie indicate to be one and

same. The order under challenge would also clearly

indicate that learned counsel who had appeared on

behalf of plaintiffs before Trial Court had admitted

execution of agreement of sale dated 15.10.1992. This

finding is recovered by trial Court at Paragraph 17 of

its order which reads as under:

“The Counsel for the plaintiff also

admits the agreement dated 15.10.1992.

But, he contends that the cheques numbers

xxxxxxx incomplete.

17. Having noticed the submissions made by

learned counsel appearing for plaintiffs, Trial Court has

categorically held as under:

“Thus, it goes without saying that

execution of special general power of attorney

and agreement is an admitted fact.”

18. Thus, unrebutted plea in the written

statement as well as finding recorded by Trial Court

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would clearly indicate that these two documents namely

Agreement of Sale and GPA dated 15.10.1992 have been

admitted by the plaintiffs.

19. When it is not disputed that both agreement

of sale and General Power of Attorney dated 15.10.1992

have come into existence on same day and it duly

registered in the office of Sub-Registrar, Kengeri, it has

to be necessarily held that recitals in a registered

document would prevail over any other recital found in

any other document. Section 92 of the Evidence Act is

clear and unambiguous in this regard and as such

finding recorded by trial Court to doubt the genuineness

of these two documents at this stage cannot be

sustained.

20. This takes me to not issue as to whether

prima facie, revocation deed dated 22.02.2004 executed

by plaintiffs is to be held as a good ground for granting

an order of temporary injunction in favour of plaintiffs

since, Power of Attorney dated 15.10.1992 having been

revoked by the principals namely plaintiffs revoking

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Power of attorney granted in favour of D-1 to D-16.

Power of revocation of an authority granted by the

principal to agent could be found in Section 201 of the

Indian Contract Act, 1872. Section 202 mandate that

the acts done by the agents pursuant to that agency

granted in his favour cannot be terminated by Principal

when such agent has an interest in subject matter.

Section 203 of the Contract Act would indicate that

principal can revoke the authority given to his agent at

any time before such authority has been exercised so as

to bind the principal. Section 204 of the Act would

clearly indicate that principal cannot revoke the

authority given to his agent after such authority been

partly exercised sofar as regards such acts and

obligations as arise or the acts already done by such

agency. Section 206 provides for a reasonable notice to

be given thereby resulting to the principal or agent the

damage that may occur on account of such revocation.

Section 207 would indicate that revocation or

renunciation may be expressed or implied in the

conduct of the principal or agent respectively. Keeping

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these statutory provisions in mind let me examine two

documents pressed into service by defendants namely

Agreement of Sale and General Power of Attorney dated

15.10.1992 when so examined, it would indicate that

these two documents have been executed by plaintiffs in

favour of defendant Nos.1 to 16 on the same day. It

has been presented for registration on the same day in

the same Sub-Registrar office and scribe of these two

documents are Sriyuths D.H.Ramachandra and

A.Ramaiah. Said documents having been executed on

15.10.1992 was revoked by plaintiffs after issuance of

notice in the year 2004 and by executing a deed of

revocation on 22.02.2004 i.e., after lapse of 12 years.

As to what transpired during this interregnum period,

nothing has been stated by plaintiffs. This would itself

disentitle the plaintiff for grant of any equitable relief.

By virtue of principal having granted an authority in

favour of agent and said authority being alive upto the

date of revocation has been acted upon by the agents on

22.05.2003 itself, namely defendant Nos.1 to 16 in

whose favour principal had granted agency namely had

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executed Power of Attorney have acted upon it and

conveyed the suit schedule property in favour of 17th

defendant under a registered sale deed dated

22.05.2003. Thus, it is a completed act of agent by

virtue of authority granted by principal. In that view of

the matter, I am of the considered view that principal

could not have revoked the agent’s authority inasmuch

as Principal had simultaneously executed agreement of

sale in favour of the Agent. Even otherwise, it has to be

held that such revocation would recede to the

background since agent had exercised his authority in

view of Section 204 of the Contract Act and said

provision would come to the rescue of agent or persons

claiming through agent inasmuch as, by virtue of such

authority granted to agent, they had acted upon even

before revocation and 3rd party rights had been created

namely agents on behalf of principal had sold the suit

schedule property in favour of 17th defendant and as

such, authority to revoke if any in favour of plaintiffs

would not come to their rescue to contend that they

have prima facie case.

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21. It is also to be noticed that in the order

under challenge, Trial Court has completely ignored or

failed to consider the point viz., as to whether either of

the parties to suit would be put to irreparable loss and

injury. There is not even a point formulated by the Trial

Court in this regard for its adjudication. This is one of

the main ingredient required to be examined by a Court

while considering the prayer for grant of temporary

injunction and this fact may tilt in favour of either of

parties. This I say so, for the reason, that on one hand

defendants 1 to 16 contend that by virtue of authority

granted by principal in their favour, they have sold the

suit schedule property in favour of 17th defendant and

he inturn had formed a residential layout and sold sites

of various dimensions to 103 persons namely

3rd party right had crept in. On the other hand plaintiffs

contend by virtue of Power of Attorney having been

revoked defendants 1 to 16 could not have sold the suit

schedule property. To unsettle the settled things would

definitely cause hardship to 3rd parties and as such

31

issue of irreparable loss and injury was one of the

relevant and important point which was required to be

considered by the Trial Court and this aspect having

been lost sight of by Trial Court has resulted in great

failure of administration of justice and order passed by

Trial Court on this ground also cannot be sustained.

22. Perusal of the order of Trial Court would

indicate that judgments relied upon by learned

advocates for defendants though having been noticed by

Trial Court namely having extracted list of authorities it

seems to have not taken note of, namely, it has not

discussed as to how the principles enunciated in those

judgments have are applicable or otherwise to facts of

the present case. It has been observed by trial Court

that these judgments can be looked up during final

disposal of suit which finding is clearly erroneous.

Merely because plaintiffs are contending that agreement

of sale entered into by them with defendant Nos.1 to 16

did not materialize itself is not a ground to grant an

order of temporary injunction partly when they have

32

utterly failed to establish their bonafides either by

taking reasonable steps as expected of a prudent person

namely they did not raise their little finger with regard

to agreement of sale dated 27.01.1991 till they issued

notice of revocation during February 2004. It is only

when defendants 1 to 16 executed a sale deed during

May 2003 in favour of 17th defendant they woke up from

their deep slumber to revoke the power of attorney.

23. Thus, entire facts having been re-

appreciated and reconsidered by this Court and

discussed hereinabove, it has been found that plaintiffs

have deliberately and erroneously failed to prove either

prima facie case, balance of convenience or irreparable

loss or injury that would be caused to them if an order

of temporary injunction is not granted or they would

suffer more injury, than what the defendants would

suffer. On the other hand, by virtue of Power of

Attorney executed by plaintiffs in favour of defendant

Nos.1 to 16 they have sold or conveyed suit property in

favour of 17th defendant on 22.05.2003 under a

33

registered sale deed and he inturn has got the suit

schedule property converted to residential purposes and

formed a layout and sold sites formed in the said layout

to 3rd parties namely 103 persons. Thus, 3rd party right

has also crept in. These aspects have not at all been

considered by the Trial Court. Thus it has resulted in

material irregularity which calls for interference at the

hands of this Court. Though Mr.Sreevatsa, learned

Senior counsel appearing for the plaintiffs has

vehemently contended that even assuming that

defendant Nos.1 to 16 had a General Power of Attorney

in their favour said Power of Attorney did not expressly

confer power on them to alienate the property cannot be

accepted at this stage, for the simple reason that

agreement of sale dated 15.10.1992 indicate that

possession has been delivered and defendant Nos.1 to

16 have been permitted to form a residential layout in

suit schedule property and they have also been

authorized to enter upon the land and carry out all civil

works required for formation of lay-out. It is in this

back ground, Clause 8 of Power of Attorney dated

34

15.10.1992 requires to be looked into. Said clause

reads as under.

“8. It is made clear that non mention of any

specific item of work in this power of attorney

in relation to the purpose for which, it is

given, shall not be deemed to limit the

authority or power of attorney to do any act,

deed or thing which according to subjective

satisfaction of power of attorney acting in

good faith deem fit, necessary or proper. In

this connection our aforesaid attorney shall

have authority and power to execute any

necessary deed, document or instrument,

with liberty to file present produce or admit

the same before any authority as may be

found necessary.”

24. A perusal of said clause would clearly

indicate that agent has been granted unlimited

authority to do any act or deed or act to their subjective

satisfaction and it has been specifically provided that

“Attorney will have power to execute necessary

deed, document or instrument with liberty to file

present or produce or admit the same before any

authority as may be necessary.” In that view of the

35

matter, it cannot be said that at this stage namely at

the stage of consideration of prayer for grant of

temporary injunction that said document did not

empower the attorney to sell suit property. Judgment in

the case of ADAIKAPPA VS. THOMAS COOK & SON

(LORD ATKIN) reported in AIR 1933 PRIVY COUNCIL

78 relied upon by the learned Senior counsel Mr.

Sreevatsa would not come to the rescue of plaintiffs

inasmuch as, in the said judgment, it has been held

that general words used in the subsequent clauses of a

Power of Attorney must be read with the special power

given in the earlier clauses and cannot be construed so

as to enlarge restricted powers therein mentioned. In

the case on hand, this Court is faced with such a

situation where two documents of even date registered

on the same day namely agreement of sale and General

Power of Attorney has been relied is being considered.

These two documents are contemporaneous documents

and they are supplementary and complementary to each

other. They cannot be read disjunctively but

conjunctively. Thus, it would be for the parties to

36

explain during the course of trial as to the need or

necessity as to why these two documents came into

existence on the same day and their presentation for

registration before jurisdictional Sub-Registrar Office.

Hence, I am of the considered view that judgment relied

upon by Mr. Sreevatsa, learned senior counsel

appearing for plaintiffs would not come to the rescue of

plaintiffs. Accordingly, point No.1 formulated by this

Court is answered in the negative by holding that Trial

Court was not correct and justified in granting an order

of temporary injunction by allowing I.A.No.1 filed by

plaintiffs.

RE-POINT NO.2:

For the reasons aforestated, I proceed to pass

following;

ORDER

(i) Appeal is hereby allowed.

(ii) Order passed by VII Additional City

Civil Judge, Bangalore in

O.S.No.2000/2004, dated 29.05.2010

37

is hereby set-aside and I.A.No.1 is

hereby dismissed.

(iii) Parties to bear their respective costs.

(iv) Trial Court shall not be influenced by

any observations made by this Court

during the course of this Order which

is examined for the limited purpose of

considering correctness of order passed

by trial Court on I.A.No.1.

Sd/- JUDGE

GH