Madras High Court
V.Perumal vs Mohamed Ali on 19 November, 2021
C.R.P.(NPD) (MD) No.1054 of 2021 &
C.R.P.(PD) (MD) No.1301 of 2021
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 19.11.2021
CORAM:
THE HONOURABLE MS.JUSTICE P.T.ASHA
C.R.P.(NPD) (MD) No.1054 of 2021 &
C.R.P.(PD) (MD) No.1301 of 2021
and
C.M.P.(MD) Nos.6138 & 7512 of 2021
and
Caveat No.2235 of 2019
C.R.P.(NPD) (MD) No.1054 of 2021 :-
1.V.Perumal
2.V.Selvaraj
3.Saraswathi .. Petitioners
-vs-
Mohamed Ali .. Respondent
Prayer :- Petition filed under Section 115 of Code of Civil Procedure
against the decretal and fair order made in I.A.No.02 of 2019 in O.S.No.
15 of 2010 on the file of the I Additional District Judge (PCR), Trichy
dated 13.11.2019.
For Petitioners : Mr.R.L.Dhilipan Pandian
For Respondent : Mr.V.Karuna
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C.R.P.(NPD) (MD) No.1054 of 2021 &
C.R.P.(PD) (MD) No.1301 of 2021
C.R.P.(PD) (MD) No.1301 of 2021 :-
V.Jaya .. Petitioners
-vs-
1.Mohamed Ali
2.Perumal
3.Selvaraj
4.Saraswathi .. Respondents
Prayer :- Petition filed under Article 227 of the Constitution of India to
set aside the judgment and decree dated 31.10.2012 made in O.S.No.15
of 2010 on the file of the I Additional District Judge (PCR), Trichy.
For Petitioner : Mr.R.Vijayakumar
for Mr.G.Mohankumar
For R1 : Mr.V.Karuna
******
ORDER
These two revisions arise out of the proceedings in O.S.No.15 of
2010 on the file of the I Additional District Judge (PCR), Trichy.
2.The suit had been filed by the plaintiff against the revision
petitioners for a specific performance of an agreement of sale dated
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C.R.P.(NPD) (MD) No.1054 of 2021 &
C.R.P.(PD) (MD) No.1301 of 2021
17.07.2009. It appears that the petitioners had remained ex-parte and
consequently, an ex-parte decree dated 31.10.2012 came to be passed
decreeing the suit. Thereafter, the revision petitioners in C.R.P.(NPD)
(MD) No.1054 of 2021, who are defendants 2 to 4 in the suit, filed an
application for condoning the delay of 2345 days in filing the petition to
set aside the ex-parte decree in I.A.No.2 of 2019. In the application filed
in support of the same, the petitioners would contend that they had
entered appearance and filed written statement, but however, their
advocate had not kept them informed about the suit and therefore, they
were set ex-parte on 31.10.2012 and on the very same day, an ex-parte
decree came to be passed. Even after service of the execution
proceedings, their advocate had not conducted the case properly.
Therefore, the revision petitioners in C.R.P.(NPD) (MD) No.1054 of
2021 sought to have the delay condoned and the decree set aside.
3.The plaintiff had filed a counter inter alia contending that not
only was the ex-parte decree passed, but on the same day, it has been
executed in favour of the plaintiff and it is only the delivery of
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C.R.P.(NPD) (MD) No.1054 of 2021 &
C.R.P.(PD) (MD) No.1301 of 2021
possession, that is, pending and at this stage, such a petition to condone
the delay had been filed. Therefore, the application deserves to be
dismissed in limine.
4.The 1st defendant had also filed an application to condone the
delay of 1522 days in filing the petition to set aside the ex-parte decree.
She would contend that the written statement filed by the 2nd defendant
dated 22.02.2012 was very sketchy and did not contain the requisite
details. However, the learned Judge proceeded to dismiss both the
applications. Defendants 2 to 4, challenging the orders passed in I.A.No.
2 of 2019, filed C.R.P.(NPD) (MD) No.1054 of 2021.
5.The 1st defendant, on the other hand, had filed a revision under
Article 227 of the Constitution of India in C.R.P.(PD) (MD) No.1301 of
2021 to set aside the ex-parte decree on the ground that the judgment is
not a judgment as contemplated under the Code of Civil Procedure.
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C.R.P.(NPD) (MD) No.1054 of 2021 &
C.R.P.(PD) (MD) No.1301 of 2021
6.The counsel for the petitioners would submit that the judgment
in the suit for specific performance is a non-speaking one and it has been
time and again stated that even in the case of an ex-parte decree, the
Courts are directed to frame issues and pass reasoned order. If the
judgment passed in the suit in O.S.No.15 of 2010 is considered, it does
not confirm to these parameters.
7.For better appreciation of the contentions put forward by the
petitioners, it is necessary to examine the aforesaid judgment. The
judgment in O.S.No.15 of 2010 is extracted hereinbelow:-
“Plaint presented by under Order VII Rule 1 of
the Civil Procedure Code.
Suit for specific performance of the agreement
of sale dated 17.07.2009 directing the defendants to
execute the sale deed in favour of the plaintiff in
respect of the suit property described hereunder after
there receiving the balance sale consideration, failing
which to have the same done through process of court
and for possession of the suit property and for
permanent injunction against the defendants not to
alienate the suit property to any other persons in any
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C.R.P.(NPD) (MD) No.1054 of 2021 &
C.R.P.(PD) (MD) No.1301 of 2021
manner and grant to such other relief.
P.W.1 – present. Defendants called absent. Set
Exparte. Proof Affidavit & Ex.A1 to Ex.A7 perused.
Claim proved. Suit dismissed. Payment of balance
consideration for 3 months.”
8.A mere perusal of the judgment would manifestly prove the total
non-application of mind and the mechanical fashion in which a judgment
has been passed. In a suit for specific performance, it has been time and
again reiterated that even if a defendant has not raised the defence of
readiness and willingness on the part of the plaintiff, the Court is duty
bound to consider the same, as the provision of Section 16(c) of the
Specific Relief Act, 1963 mandates the plaintiff not only to aver but also
to prove his readiness and willingness. Such a consideration is not
evident in the impugned judgment. Therefore, this Court, exercising
jurisdiction under Article 227 of the Constitution, is striking off the
judgment in O.S.No.15 of 2010. Further, in the light of the fact that the
judgment is being set aside, the defendants shall be given an opportunity
to participate once again in the proceedings and therefore, the order dated
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C.R.P.(NPD) (MD) No.1054 of 2021 &
C.R.P.(PD) (MD) No.1301 of 2021
13.11.2019 passed in I.A.No.2 of 2019 in O.S.No.15 of 2010 and the
judgment and decree dated 31.10.2012 in O.S.No.15 of 2010 are set
aside.
9.In the result, both the Civil Revision Petitions are allowed and
the learned I Additional District Judge (PCR), Trichy is directed to once
again consider the suit. The defendants shall file their written statement
within a period of two weeks from the date of receipt of a copy of this
order and the learned Judge, shall thereafter dispose of the suit within a
period of five months from the date on which the written statement is
filed. No costs. Consequently, connected miscellaneous petitions are
closed.
19.11.2021
abr
Note:-
In view of the present lock down
owing to COVID-19 pandemic, a web
copy of the order may be utilized for
official purposes, but, ensuring that the
copy of the order that is presented is the
correct copy, shall be the responsibility
of the Advocate / litigant concerned.
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C.R.P.(NPD) (MD) No.1054 of 2021 &
C.R.P.(PD) (MD) No.1301 of 2021
P.T.ASHA, J.
abr
To
The I Additional District Judge (PCR), Trichy.
C.R.P.(NPD) (MD) No.1054 of 2021 &
C.R.P.(PD) (MD) No.1301 of 2021
Dated: 19.11.2021
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