CW-6517/09-Ashok Chand & Anr. Vs. Santosh Kumar & Ors. Judgment dt.15.3.10 1/3 S.B. CIVIL WRIT PETITION NO.6517/2009 Ashok Chand & Anr. Vs. Santosh Kumar & Ors. Date of order : 15th March, 2010 PRESENT HON'BLE DR. JUSTICE VINEET KOTHARI Mr. S.C. Maloo for the petitioners. Mr. O.P. Boob for the respondents. ------- 1. Heard learned counsels. 2. This writ petition is directed against the order dated 19.5.2009 whereby the learned trial court rejected the application of the defendants under Order 14 Rule 2 C.P.C. whereby the defendants had prayed that the issues No.3, 6, 8 and 9 framed by the learned trial Court on 22.4.2008 may be decided as preliminary legal issues before the evidence is led by the parties. 3. Learned counsel for the petitioner-defendants Mr. S.C. Maloo submits that the plaintiff claimed the possession and right to recover the rent in respect of the suit property under a sale deed which is said to have been executed by one Narender Kumar, power of attorney holder of Kanta Devi and Ms. Nikita and both of whom on account of taking a 'Jain Diksha' of had become 'Sadhvi' much prior to the alleged execution of the said sale deed and thus had suffered a 'civil death' in the eye of law and, therefore, no valid title could be passed by such power of attorney holder Mr. Narender Kumar. He therefore, submits that issues No.3, 6, 8 and 9 relating to CW-6517/09-Ashok Chand & Anr. Vs. Santosh Kumar & Ors. Judgment dt.15.3.10 2/3 maintainability of suit itself are legal issues which do not require any evidence and deserve to be decided as preliminary issues. 4. On the other hand, Mr. O.P. Boob, learned counsel appearing for the plaintiff-respondents submits that these issues are also mixed questions of fact and law and, therefore, without parties leading the evidence they cannot be determined as preliminary issues. 5. Having heard learned counsels and upon bare perusal of the impugned order and the pleadings in the suit and supporting documents, it appears that the plaintiffs is claiming his title over the suit property under a sale deed executed by a power of attorney holder of the said Smt. Kanta devi and Ms. Nikita, who admittedly took a 'Jain Diksha' and became 'Sadhvi' in the year 2000 were renamed to be 'Sadhvi Shri Hit Sadhna' and 'Sadhvi Shri Harsh Pragya' respectively and this would so appear in Annex.2, the so called consent letter / power of attorney executed by these persons in favour of Narender Kumar. In para 7 of the plaint, Annex.1 also, the plaintiff has stated that Smt. Kanta Devi wife of Shri Prakash Mal and Ms. Nikita who executed the said power of attorney in favour of Narender Kumar at Adinath Society, Jain Sthanak, Satara Road, Pune. The documents in support of plaint Annex.2 and 3 produced before this Court also clearly stipulate that these two persons had taken 'Jain Diksha' and, therefore, possibly could not execute the said power of attorney / consent letter in favour of the power of attorney Shri Narender Kumar. CW-6517/09-Ashok Chand & Anr. Vs. Santosh Kumar & Ors. Judgment dt.15.3.10 3/3 6. The question before this Court as well as before the learned trial court was that as to whether these persons having taken 'Jain Diksha' had suffered a civil death or not and they could enter into such transaction and execute these documents as are produced in this matter. 7. In the opinion of this Court, this question goes to the root of the matter and there is no dispute in law that a person having relinquished the world by becoming Sadhu / Sadhvi suffers a civil death and, therefore, he or she cannot be concerned with the worldly affairs matters like transferring property etc. by executing a sale deed or power of attorney etc. Therefore, in the opinion of this Court, these issues deserve to be decided as preliminary legal issues by the learned trial court before the evidence is led by the parties. Consequently, the learned trial court appears to have erred in passing the impugned order dated 19.5.2009 in rejecting the said prayer of the defendant-petitioners. 8. Consequently, this writ petition is allowed and the impugned order dated 19.5.2009 is set aside and the learned trial court is directed to decide the issues No.3, 6, 8 and 9 as preliminary legal issues. No costs. [ DR. VINEET KOTHARI ], J. item No.83 babulal/