Madras High Court
V.M.Selvin vs M.Alex (Died) ... Plaintiff on 12 July, 2021
A.S.(MD)No.106 of 2019
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 12.07.2021
CORAM:
THE HONOURABLE MR.JUSTICE G.R.SWAMINATHAN
A.S.(MD)No.106 of 2019
1.V.M.Selvin
2.Benjamin Bindhu ... Appellants / Defendants
-Vs-
M.Alex (Died) ... Plaintiff
2.M.Ramola
3. Godson
4.Sharmi
5.Jismi ... Respondents
(R2 to R5 are brought on record as Lrs of sole respondent)
PRAYER: Appeal Suit filed under Order Section 96 of the Civil
Procedure Code, against the judgment and decree dated 11.01.2019 in
O.S.No.32 of 2009 on the file of the Principal District Court, Kanyakumari
District at Nagercoil.
For Appellants : Mr.R.Vijaya Kumar
For Respondents : Mr.V.Meenakshi Sundaram
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A.S.(MD)No.106 of 2019
JUDGMENT
The defendants in O.S.No.32 of 2009 on the file of the Principal
District Court, Kanyakumari District at Nagercoil are the appellants in this
appeal.
2.The said suit was instituted for recovering a sum of Rs.8,60,000/-
from the appellants herein. The appellants are husband and wife. The
original plaintiff Alex was none other than the brother-in-law of the first
appellant.
3.The case of the plaintiff was that he deposited a sum of
Rs.5,00,000/- in the finance company run by the defendants in the name and
style of Bella Finance. Since the deposit amount was not repaid, the suit
came to be instituted. The defence of the defendants was that in lieu of
repayment of the deposit amount, the defendants had sold their scorpio car
bearing registration No.TN 74 W 7713 and also 3 ½ cents of land in re-
survey No.733/19B in Thiruvithancode Village. In other words, the
defendants set up a plea of discharge. While framing the issue, the trial
Court rightly cast the initial burden of proof on the defendants. The
defendants were, therefore, called upon to adduce evidence first. Even
though a specific date was fixed for letting in evidence by the defendants,
on the said date, the defendants were not ready to get along with the matter.
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A.S.(MD)No.106 of 2019
Thereupon, the Court below invoked Order 17 Rule 3A of C.P.C., and
proceeded to decree the suit as prayed for. Challenging the same, this
appeal has been filed by the defendants.
4.The question that arises for my consideration is whether the
procedure adopted by the Court below is correct.
5.I heard the learned counsel on either side.
6.There is no dispute that the burden was rightly cast on the
defendants because they had only set up the plea of discharge. Deposit of
Rs.5,00,000/- in the financial establishment run by the defendants was
admitted.
7.But on the day fixed for adducing evidence, the defendants did not
get along with the matter. Therefore, the court below must follow the
procedure set out in Order 17 Rule 3 of C.P.C.
Order 17 Rule 3 of C.P.C., reads as follows:-
“3.Court may proceed notwithstanding either party fails to
produce evidence etc-- Where any party to a suit to whom time has been
granted fails to produce his evidence, or to cause the attendance of his witnesses, or
to perform any other act necessary to the further progress of the suit, for which time
has been allowed the Court may, notwithstanding such default,
(a) if the parties are present, proceed to decide the suit forthwith; or
(b) if the parties are, or any of them is, absent, proceed under rule 2.”
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A.S.(MD)No.106 of 2019
8.In the case on hand, the parties were very much present. Though
the defendants were obliged to adduce the evidence, they did not do so.
Therefore, the Court below was entitled to decide the suit forthwith. Even
though the trial Court ought to have invoked Order 12 Rule 6 of C.P.C., it
had referred to Order 17 Rule 3A which is clearly not applicable to the case
on hand.
9.Even though Order 12 Rule 6 of C.P.C., was not specifically
referred to, a reading of paragraph 8 of the impugned judgment shows that
the said mandate had been kept in mind by the Court below. The Court
below had stated that the only plea of the defendants was one of discharge
by sale of scorpio car and land. Since the defendants had not proved this
plea of discharge, the Court below came to the conclusion that the
plaintiff's claim stood proved and accordingly, decreed the suit.
10.I cannot fault the approach of the Court below. However, the
learned counsel appearing for the appellants submits that the defendant has
a substantial defence and he ought not to be non-suited summarily. The
appellants agree to deposit a sum of Rs.1,00,000/- on or before 31.08.2021
to the credit of O.S.No.32 of 2009 on the file of the Principal District Court,
Kanyakumari District, Nagercoil.
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A.S.(MD)No.106 of 2019
11.The disbursement of the said amount will depend on the outcome
of the suit proceedings. On such deposit by the defendants, the same will be
kept in an interest bearing account. In view of the aforesaid concession
given by the appellants through their counsel and in order to render
substantial justice, the judgment and decree passed by the Court below is
set aside. The matter is remanded to the file of the trial Court. Registry
will return the records forthwith to the trial Court. The parties will appear
before the trial Court on 06.09.2021. On the said date, the defendants will
enter the witness box. The suit itself will be disposed of in accordance with
law within a period of four months thereafter. This appeal is allowed on
these terms. Since the matter is being remanded, Registry is directed to
return the Court fees to the appellants. If the defendants fail to make the
deposit, their defence will be struck of and the Court below shall invoke
Order 12 Rule 6 of C.P.C. and dispose of the matter. I make it clear that
Registry will not number any petition for seeking extension of time. No
costs.
12.07.2021
Internet : Yes/No
Index : Yes/No
rmi
https://www.mhc.tn.gov.in/judis/
A.S.(MD)No.106 of 2019
G.R.SWAMINATHAN.J.,
rmi
To
1.The Principal District Court, Kanyakumari District at Nagercoil.
2.The Section Officer,
Vernacular Records,
Madurai Bench of Madras High Court,
Madurai.
Judgment made in
A.S.(MD)No.106 of 2019
12.07.2021
https://www.mhc.tn.gov.in/judis/
