Madras High Court
Mathiyalagan vs Ganesan on 20 December, 2021
C.R.P.(MD) No.1384 of 2021
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 20.12.2021
CORAM :
THE HONOURABLE MS.JUSTICE P.T.ASHA
C.R.P.(MD) No.1384 of 2021
and
C.M.P.(MD) No.7847 of 2021
Mathiyalagan ... Petitioner
vs.
Ganesan ... Respondent
PRAYER:- This Petition is filed under Article 227 of the Constitution of India,
to set aside the fair and decreetal order dated 22.03.2021 rendered in I.A.No.21
of 2020 in O.S.No.69 of 2014 on the file of the learned Subordinate Judge,
Vedasandur.
For Petitioner : Mr.S.Kathiravan
For Respondent : Mr.B.Azhagesh
ORDER
The plaintiff has filed the above Civil Revision Petition challenging the
order passed in I.A.No.21 of 2020 in O.S.No.69 of 2014 dated 22.03.2021 on
the file of the learned Subordinate Judge, Vedasandur.
2.By the impugned order, the learned Judge has dismissed the application
filed by the plaintiff to amend the plaint. The brief facts are as follows:-
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C.R.P.(MD) No.1384 of 2021
3.The plaintiff had originally filed a suit O.S.No.69 of 2014 for the
following reliefs:-
"a) for specific performance of the agreement of sale deed dated
04.05.2011 directing the defendant to execute a sale deed in favour of the
plaintiff in respect of the suit land within a period to be specified by the
Court failing which executing the sale deed through process of Court;
b) for a consequential relief of possession of the suit property;
c) alternatively, for recovery of the advance amount with interest at
24% p.a. upto date, namely, Rs.3,56,920-50p with subsequent interest;
d) for a permanent injunction restraining the defendant, his men
and servants from alienating the suit property"
4.It is the case of the plaintiff that he had originally entered into an
agreement of sale dated 04.05.2011 with the defendant in respect of the suit
schedule property. The price agreed for was a sum of Rs.7,87,500/- and a sum of
Rs.2,00,000/- was paid as advance. The time for completing the sale was a
period of 1 year. However, the defendant kept seeking an extension. Therefore,
another sale agreement dated 15.05.2012 was entered into on the same terms.
Once again, another sale agreement was entered into on 15.05.2013. When the
plaintiff had approached the defendant in the month of February, 2014 to
receive the balance sale consideration and execute the sale deed, the defendant
refused to do so. Therefore, the plaintiff issued a legal notice dated 27.03.2014,
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C.R.P.(MD) No.1384 of 2021
calling upon the defendant to execute the sale deed. A reply containing false
allegations was issued on 26.04.2014 by the defendant, to which an adequate
rejoinder was submitted by the plaintiff on 16.07.2014. Thereafter, the plaintiff
had come forward with the above suit for specific performance.
5.The defendant had filed a written statement denying the execution of
the sale agreement. It was his case that on 17.06.2010, he had borrowed a sum
of Rs.1,50,000/- from the plaintiff, for which, the plaintiff had got signatures in
several blank papers and this has been misused to create these agreements. The
defendant denied the plea of readiness and willingness as stated by the plaintiff
and sought for dismissal of the suit.
6.Pending the above suit, the plaintiff had come forward with the
impugned application to amend the plaint with regard to the prayer portion and
in paragraph No.11 of the plaint. The plaintiff would submit that although in the
plaint the plaintiff has set out all the agreements of sale, he had however by
typographical error not included it in the relief portion and also in paragraph
No.11. Therefore, he sought to amend the plaint.
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C.R.P.(MD) No.1384 of 2021
7.The defendant had filed a written statement denying the contentions of
the plaintiff and stating that the very agreement of sale is denied by the plaintiff
and therefore, an amendment cannot be ordered.
8.The learned Subordinate Judge, Vedasandur by judgment dated
22.03.2021 had dismissed the said application on the ground that the suit had
been listed for trial on 28.11.2019 and since the plaintiff had not appeared, the
suit had been dismissed for default. Thereafter, it was restored to file. At that
point of time, the plaintiff has come forward with the present application.
Further, the learned Judge had observed that there is no reference to the
agreement of sale dated 15.05.2012 and 15.05.2013 in the plaint and therefore,
it deserves to be dismissed. Aggrieved by the said order, the plaintiff is before
this Court.
9.Heard the learned counsels on either side.
10.The plaintiff has in very cogent terms set out how he had entered into
an agreement of sale on 04.05.2011, which was thereafter extended on two
occasions and ultimately since the defendant had not come forward to execute
the sale deed, the plaintiff had been constrained to move the Court for specific
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C.R.P.(MD) No.1384 of 2021
performance. Therefore, the observation of the learned Judge that the plaint
does not contain any reference to the other two agreement of sale is per se
wrong and the order insofar as the above observation is concerned clearly
shows the non application of mind on the part of the learned Judge. That apart
since the reference has already been made to the two agreement of sale, no new
contention is sought to be introduced by the plaintiff and no prejudice is going
to be caused to the defendant, as it is for the plaintiff to prove the execution of
these deeds by the defendant. In these circumstances, the order dismissing the
above amendment is totally incorrect and is liable to set aside.
11.In the result, the Civil Revision Petition stands allowed and the order
passed in I.A.No.21 of 2020 in O.S.No.69 of 2014 dated 22.03.2021 on the file
of the learned Subordinate Judge, Vedasandur is hereby set aside. No costs.
Consequently, connected miscellaneous petition is closed.
Index : Yes / No 20.12.2021
Internet : Yes / No
mm
To
The Subordinate Judge,
Vedasandur.
https://www.mhc.tn.gov.in/judis
C.R.P.(MD) No.1384 of 2021
P.T.ASHA, J.
mm
C.R.P.(MD) No.1384 of 2021
20.12.2021
https://www.mhc.tn.gov.in/judis
