Madras High Court
V.Damodharan vs R.Shankar on 30 June, 2021
C.R.P.(PD)No.967 of 2021
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 30.06.2021
CORAM
THE HONOURABLE MR.JUSTICE C.V.KARTHIKEYAN
C.R.P(PD).No.967 of 2021
and C.M.P.No.7795 of 2021
V.Damodharan ...Petitioner
Vs
1.R.Shankar
2.M/s.Balajee & Co., Auctioneers
& Estate Agents,
No.160, II Floor, Thambu Chetty Street,
Chennai – 600 001.
3.P.Rajendran ...Respondents
Revision Petition filed under Article 227 of the Constitution of
India, to call for the records and set aside the order dated 25.01.2021 made
in I.A.No.13133 of 2018 in O.S.No.1383 of 2018 on the file of the XVII
Additional City Civil Court, Chennai.
For Petitioner : Mr.R.Ravindran
For Respondents : Mr.Muralikrishnan [For R1]
1/8
https://www.mhc.tn.gov.in/judis/
C.R.P.(PD)No.967 of 2021
ORDER
The first defendant in O.S.No.1383 of 2018, now pending on the file
of the XVII Additional Court, City Civil Court, Chennai is the revision
petitioner herein.
2.The revision petition has been filed questioning the order dated
25.01.2021 in I.A.No.13133 of 2018 passed in the said suit.
3.O.S.No.1383 of 2018 had been filed by the first respondent herein
against three defendants. The second defendant is the auctioneer. The first
defendant is the revision petitioner herein. In the said suit, the first
respondent/plaintiff had sought for a judgment and decree to declare a sale
deed executed by the third defendant on 21.09.2017 and registered as
Document No.4484 of 2017 in the office of the Sub Registrar,
Kodambakkam in favour of the first defendant as null and void and for a
permanent injunction restraining the defendants from interfering with the
peaceful possession of the plaintiff and for costs of the suit.
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C.R.P.(PD)No.967 of 2021
4.It must be mentioned that the plaintiff in O.S.No.1383 of 2018 was
a mortgagor of the schedule mentioned property and the third defendant was
the mortgagee. Pursuant to the terms of the mortgage, the second defendant
having been appointed as an auctioner had brought the property for sale and
the first defendant in the suit had purchased the said property. At that stage,
the plaintiff had filed O.S.No.1383 of 2018 seeking the relief as stated
above, namely, to set aside the particular sale deed as null and void.
Pending the said suit, the plaintiff had also filed I.A.No.13133 of 2018
under Order VI Rule 17 of CPC seeking to amend the plaint by
incorporating the prayer for redemption of mortgage to determine the
amount payable to the third defendant under the mortgage dated 22.04.2008
which was registered as Document No.1445 of 2008 in the office of the Sub
Registrar, Kodambakkam. It must also be mentioned that the revision
petitioner/first defendant had also instituted O.S.No.4776 of 2019
subsequent to the sale deed executed in his favour, seeking a judgment and
decree against the defendants particularly the first respondent herein to
deliver vacant possession of the very same property and also seeking future
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C.R.P.(PD)No.967 of 2021
damages for occupation and for costs. That suit is also pending. This
application in I.A.No.13133 of 2018 came up for consideration before the
learned Judge on 25.01.2021. By judgment of even date, the application
was allowed permitting amendment of the prayer by including the relief of
redemption of the mortgage. Questioning that order, the first
defendant/auction purchaser had filed the revision petition.
5.I had the benefit of hearing Mr.R.Ravindran, learned counsel for the
revision petitioner and Mr.C.Muralikrishnan, learned counsel for the first
respondent.
6.Mr.C.Muralikrishnan, learned counsel for the first respondent
pointed out the order of the learned Judge, wherein in paragraph No.17, the
learned Judge had indicated the probable questions which have to be
answered in the suit. It was also stated that the said application had been
filed only under Order VI Rule 17 of CPC and that the mortgage had been
challenged in another suit by the plaintiff/first respondent herein and that
the said suit had also attained finality. It is however, very very fairly
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C.R.P.(PD)No.967 of 2021
admitted by Mr.C.Muralikrishnan, that the said statement of the learned
Judge that the mortgage had been challenged in another suit and such
challenge had attained finality is not a correct statement and it is not based
on any records.
7.I am more concerned with the further observations made by the
learned Judge with respect to “well settled proposition of law”, when
actually this settled proposition had not been pointed out by the learned
Judge. Further the learned Judge had also stated the “various judgments of
our Apex Court and Madras High Court”, but unfortunately, had not
indicated what the said judgments are. It would only be appropriate that the
learned Judge re-applies his/her mind to the averments made in the affidavit
and in the counter affidavit and thereafter takes a considered a considered
decision whether to allow the relief of amendment or not. There must be
clarity in the order in the sense that if any reference is made to any
precedents, those precedents must be set out and there must be a discussion
whether the facts in that precedent and the law laid down apply to the facts
of the present case. The law always follows the facts. It is the
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C.R.P.(PD)No.967 of 2021
responsibility of the Court of first instance to establish facts and then
examine the law on those facts in the first instance set out the proposition of
law and if there is a precedent on the said proposition, state that precedent
and then spell out how it is applicable to the facts of the case.
8.Therefore, it would only be prudent that the matter is remitted back
to the learned XVII Additional Judge, City Civil Court, Chennai for
re-appreciation of the averments made by both the parties in their respective
affidavit/counter affidavit and thereafter pass necessary orders. The order
under revision is therefore set aside and a request is placed on the learned
XVII Additional Judge, City Civil Court, Chennai to hear again
I.A.No.13133 of 2018, provide opportunity to both the learned counsels to
advance arguments, examine all issues and then pass a considered order.
The said exercise should be completed by the learned Judge on or before
13.08.2021. Thereafter, further progress in the suit may be taken up.
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C.R.P.(PD)No.967 of 2021
9.The Civil Revision Petition is disposed of accordingly. No order as
to costs. Consequently, connected miscellaneous petition is closed.
30.06.2021
cse
Index:Yes/No
Internet: Yes/No
Note: The Registry is directed to upload
the order on 02.07.2021.
To
The XVII Additional Judge,
City Civil Court, Chennai.
https://www.mhc.tn.gov.in/judis/
C.R.P.(PD)No.967 of 2021
C.V.KARTHIKEYAN, J,
cse
C.R.P(PD)No.967 of 2021
and C.M.P.No.7795 of 2021
30.06.2021
https://www.mhc.tn.gov.in/judis/
