Madras High Court
Manju Shree vs Bhagavathi Raj on 3 August, 2021
CRP(MD)Nos.1088 and 600 of 2020
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED : 03.08.2021
(Reserved on 23.03.2021)
CORAM :
THE HONOURABLE MRS.JUSTICE J.NISHA BANU
CRP(MD)Nos.1088 and 600 of 2020
and
CMP(MD)Nos.7063 and 3898 of 2020
Manju Shree ... Petitioner in both CRPs
vs.
Bhagavathi Raj ... Respondent in both CRPs
Petitions filed under Article 227 of the Constitution of India,
against the fair and decreetal order made in I.A.Nos.97 and 98 of 2020
and 51of 2020 in O.S.No.115 of 2016 by the Additional District Court
(Fast Track Court), Palani, dated 19.11.2020 and 17.03.2020.
For Petitioner : Mr.D.Venkatesh
For Respondent : Mr.R.Subramanian
COMMON ORDER
Having suffered dismissal of the petitions filed in I.A.Nos.97 and
98 and 51/2020 in O.S.No.115/2016, the defendant in the suit/the
applicant in all the applications have challanged the dismissal order in
these two revision petitions. As the issue involved is common, this
common order is passed.
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CRP(MD)Nos.1088 and 600 of 2020
2.Admittedly, the suit is filed for specific performance by the
respondent herein who is the plaintiff in the suit. The parties are
described as per the nomenclature as used in the civil suit for the purpose
of better clarification.
3.The case of the plaintiff is that there was a sale agreement to
purchase the property of the defendant and advance of Rs.5 Lakhs was
paid at the time of registration of the sale agreement. The case of the
defendant is that she did not receive a sum of Rs.5 Lakhs by cash and
instead, the plaintiff executed a promissory note for Rs.8 Lakhs towards
security of the advance amount payable.
4.The trial court has held that the application filed (a)to re-open
the case and (b)to examine the Technician in the Sub Registrar office
along with production of CCTV footage are highly belated and those
applications have been filed with an intention to drag on the proceedings
and it does not merit acceptance. Subsequent application has also been
filed to summon the Sub Registrar and to examine him as a witness in
order to prove that a sum of Rs.5 lakhs was not paid as advance. This
application has also been dismissed.
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CRP(MD)Nos.1088 and 600 of 2020
5.The justifiability or otherwise of the order of dismissal is under
challenge in these two revision petitions.
6.The reason that operated in the mind of the trial court for
dismissal are,
1)the defendant has not issued reply to pre-suit notice
2)the applications filed seeking production of CCTV footage and
examination of the Sub Registrar are highly belated.
7.No doubt, there is a delay in filing those applications before the
trial Court. When the delay is immaterial/when the delay must be
condoned/when the delay should not be condoned/when the delay should
be condoned with costs are matters to be considered which would depend
upon the point sought to be established by filing those applications.
8.Establishment of the truth by obtaining proper proof of relevant
facts is the object of the trial. The context in which the application is
filed, the purpose for which the application is filed and the relevancy of
the factor that is sought to be established are critical factors for the
consideration of the court.
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CRP(MD)Nos.1088 and 600 of 2020
9.So far as this case is concerned, it is pointed out that the
plaintiff/PW1 has categorically admitted that the advance amount was
paid before the Sub Registrar during the execution of sale agreement.
This is the context in which the CCTV footage is sought to be
produced/Sub Registrar to be examined are sought by the defendant.
10.The suit itself is for the relief of specific performance based
upon the registered sale agreement. The responsibility on the part of the
defendant to act in accordance with the judgment is based upon the fact
that whether the essential terms and conditions of the agreement have
been performed by both the plaintiff and by the defendant. If really the
plaintiff has paid part of sale consideration towards advance, then the
further liability on the part of the defendant to execute the sale deed
would arise. If really part of the sale consideration in the name of
advance is not paid by the plaintiff, then the plaintiff has no right to ask
the defendant to execute the sale deed. It is a settled position of law that
no title can pass validly without the passing of consideration. In other
words, passing of consideration is a determining factor in determining
the rights and liabilities of the parties. Certainly, either the production of
CCTV footage and/or the examination of Sub Registrar would offer
unfailing evidence with regard to passing of consideration especially
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CRP(MD)Nos.1088 and 600 of 2020
when it is admitted by the plaintiff that passing of consideration was in
the presence of the Sub Registrar. The Court should have ordered
payment of cost in order to offset the inconvenience caused to the
plaintiff on account of the delay caused by the defendant. The
establishment of truth is justice for which trial is conducted and courts
are functioning. It is not for a mere empty formality.
11.Under such circumstances, the impugned fair and decrretal
orders passed in I.A.Nos.97 and 98 of 2020 and 51of 2020 in O.S.No.115
of 2016 by the Additional District Court (Fast Track Court), Palani, dated
19.11.2020 and 17.03.2020, are set aside and both the Civil Revision
Petitions are allowed. All the I.As are allowed with modification
permitting production of CCTV footage along with examination of the
Sub Registrar subject to the condition that the defendant pays a cost of
Rs.10,000/- to the plaintiff. Trial shall be taken on priority basis having
regard to the long pendency. No costs. Consequently, connected
miscellaneous petitions are closed.
Index : Yes / No
Internet: Yes / No
bala 03.08.2021
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CRP(MD)Nos.1088 and 600 of 2020
J.NISHA BANU, J.
bala
To
The Additional District Judge
(Fast Track Court),
Palani.
PRE-DELIVERY COMMON ORDER MADE IN
CRP(MD)Nos.1088 and 600 of 2020
DATED : 03.08.2021
https://www.mhc.tn.gov.in/judis/
