Babu vs Balasamy (Died)
2021 Latest Caselaw 17829 Mad

                                                                      C.R.P.(NPD)No.3751 of 2015

                              IN THE HIGH COURT OF JUDICATURE AT MADRAS

                                                DATED: 01.09.2021

                                                      CORAM:

                             THE HONOURABLE MS.JUSTICE V.M.VELUMANI

                                            C.R.P.(NPD)No.3751 of 2015

                      Babu                                                     .. Petitioner
                                                            Vs.


                      1.Balasamy (died)
                      2.Santha
                      3.Balasubramaniyan
                      4.Baskar                                                 .. Respondents


                      (Respondents 2 to 4 brought on record as legal heirs of the
                      sole respondent viz., Balasamy vide Court order dated
                      16.03.2021 made in C.M.P.Nos.12670, 12673 and 12674
                      of 2020 in C.R.P.(NPD)No.3751 of 2015)



                      PRAYER: Civil Revision Petition filed under Section 115 of Civil

                      Procedure Code, against the fair and decretal order dated 04.07.2015 in



                      1/13


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                                                                      C.R.P.(NPD)No.3751 of 2015

                      I.A.No.981 of 2013 in O.S.No.317 of 2005 on the file of the Sub Court,

                      Namakkal.

                                         For Petitioner      : Mr.K.Govindarajan

                                         For R2 to R4        : Mr.S.R.Varunkumar
                                                             for Mr.C.Jagadish

                                                          ORDER

(The matter is heard through “Video Conferencing/Hybrid Mode”.)

Civil Revision Petition is filed against the fair and decretal order

dated 04.07.2015 in I.A.No.981 of 2013 in O.S.No.317 of 2005 on the

file of the Sub Court, Namakkal.

2.The petitioner is defendant and 1st respondent is plaintiff in

O.S.No.317 of 2005 on the file of the Sub Court, Namakkal. Pending

Civil Revision Petition, the 1st respondent died and his legal heirs were

impleaded as respondents 2 to 4. The 1st respondent filed the said suit for

specific performance of agreement of sale dated 25.11.2000. The suit

summon and notices sent through post were not served on the petitioner

and after substituted service by effecting paper publication, the suit was

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decreed exparte. The 1st respondent filed Execution Petition. After

execution of the sale deed by the Court, he took possession of the suit

property by filing R.E.P.No.74 of 2007. The petitioner filed I.A.No.981

of 2013 to condone the delay of 2658 days in filing the petition to set

aside the exparte decree.

3.According to the petitioner, he did not execute any agreement of

sale in favour of the 1st respondent. The 1st respondent's son and his

daughter-in-law were running chit fund in the name and style of 'Sri

Anjaneya Chit Funds Private Limited'. The petitioner was a member in

the said chit fund and he was a successful bidder in one chit. In order to

pay the money, the 1st respondent's son insisted the petitioner to deposit

the title deeds of his property and sign in the blank papers. On

completion of chit, the petitioner sought for return of documents

deposited by him. The petitioner was informed by the son of the 1 st

respondent that the Chit Company was dissolved and all the documents

were with the Official Liquidator at Kuralagam, Chennai and promised to

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get the documents, when he goes to Chennai. The petitioner further

submitted that after 2003, he is not residing in Namakkal and was

residing in Tiruppur from 2003 – 2009. No suit summon was served on

him. Without serving any summon to the petitioner, the 1 st respondent

obtained exparte decree. Only in the year 2013, when the petitioner

obtained Encumbrance Certificate, he came to know about the exparte

decree and sale of his property by the Court. Immediately, he filed

petition to set aside the exparte decree along with the present petition to

condone the delay in filing the petition to set aside the exparte decree.

4.The 1st respondent filed counter affidavit denying all the

averments made in the affidavit and stated that suit summons were sent to

the petitioner on number of occasions and the same were returned. In

view of the same, paper publication was effected and exparte decree was

passed. The 1st respondent filed E.P. and the Court executed the sale deed.

The 1st respondent took possession of the property. At that stage,

petitioner filed present petition. If the delay is condoned, the 1 st

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respondent will be put to irreparable loss and hardship and prayed for

dismissal of the said I.A.

5.The learned Judge considering the materials available on record,

dismissed the I.A. holding that the petitioner has not explained the reason

for not taking any steps even after coming to know of the dissolution of

the chit fund.

6.Against the said fair and decretal order dated 04.07.2015 in

I.A.No.981 of 2013 in O.S.No.317 of 2005 on the file of the Sub Court,

Namakkal, the petitioner has come out with the present Civil Revision

Petition.

7.The learned counsel appearing for the petitioner contended that

the learned Judge failed to properly appreciate the endorsement made in

the suit summons that the petitioner has left the place and in the notice

sent through post also, it was endorsed that the petitioner has left. The

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learned Judge erred in coming to the conclusion that the petitioner

refused suit summon on 23.01.2006, when the petitioner was not residing

in the said address. The decree passed by the learned Judge is not in

accordance with the provisions of the Civil Procedure Code. The learned

Judge has not stated any reason for granting decree. The learned Judge

erred in holding that the petitioner has not proved that he was away from

Namakkal. The petitioner has filed Exs.A1 to A5 to prove that he was in

Tiruppur from the year 2003 – 2009. The learned Judge erred in holding

that the petitioner has not taken any steps to get return of the documents

given as security for chit amount. The order of the learned Judge suffers

from material irregularity and the same is liable to be set aside.

8.In support of his contentions, the learned counsel relied on the

judgments reported in 2011 (3) CTC 168 (Meenakshisundaram

Textiles vs. Valliammal Textiles Ltd.) and 2021 (3) CTC 850

(Meenatchi vs. Andal) and submitted that the learned Judge failed to

follow the Order XX Rule 4 (1) of C.P.C. that every judgment should

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contain a concise statement of the case, the points for determination, the

decision thereon and the reasons for such decision. A judgment which

does not contain the minimum facts, the point for determination, the

evidence adduced, the application of those facts and evidence for deciding

the issue would not qualify it to be called as 'judgment'. The judgment

should contain the brief summary of the facts, the evidence produced by

the plaintiff in support of his claim and the reasoning of the learned Judge

either for decreeing the suit or its dismissal. The Civil Procedure Code

does not say that the Court is bound to grant a decree, in case the

defendant is absent. In the present case, perusal of the judgment would

show that there was total non-application of mind on the part of the

learned Subordinate Judge, when the suit filed for specific performance

was decreed exparte. Even the statutory requirement regarding readiness

and willingness of the plaintiff has not been gone into, there is no finding

recorded in the judgment and prayed for allowing the Civil Revision

Petition.

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9.The learned counsel appearing for the respondents contended

that the suit summons and notices sent to the petitioner were not served

on him in the usual course. The trial Court permitted the 1st respondent to

serve the suit summon by effecting paper publication. Even after paper

publication, there was no representation on behalf of the petitioner and he

did not appear before the trial Court. The petitioner was in gross

negligence and there was deliberate inaction on his part in not receiving

the original documents from the 1st respondent. The learned Judge

considering the materials available and the documents filed by the

respondents, passed the decree in favour of the 1st respondent and rightly

dismissed the I.A. The petitioner has not given valid reason for condoning

the delay of 2658 days and prayed for dismissal of the Civil Revision

Petition. In support of his contentions, the learned counsel relied on the

following decisions:

(i) 2001 (4) CTC 722 (Kandaswamy and four others vs.

Krishnamandiram Trust, Karur);

(ii) 2007 (2) CTC 643 (G.Jayaraman vs. Devarajan);

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(iii) 2015 SCC Online Mad 6935 (P.R.Ravichandran and others vs.

K.Aswani Kumar);

(iv) (2015) 1 SCC 680 (H.Dohil Constructions Company Private

Limited vs. Nahar Exports Limited and another).

10.Heard the learned counsel appearing for the petitioner as well as

the learned counsel appearing for the respondents and perused the entire

materials on record.

11.From the materials available on record, it is seen that the suit

was filed by the 1st respondent for specific performance of agreement of

sale. The petitioner did not appear and contest the suit. After serving

summon by substituted service, the suit was decreed exparte. It is the

case of the petitioner that from the year 2003, he was residing in Tiruppur

and he was not residing in Namakkal. To substantiate his contention, he

has filed and marked ration card, gas connection card, Passbook, Voter

I.D. card and Identity card issued by Tiruppur Social Welfare Board as

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Exs.A1 to A5 before the learned Judge. The learned Judge verified the

Court records and found that summons sent through the Court and post

were returned with endorsements as “not residing”, “left”, “refused”,

“left without instruction” and “not claimed”. In two of the endorsements,

the learned Judge has stated that the petitioner refused the suit summon

and the same has been recorded by the Bailiff in the presence of the

witnesses. When the case of the petitioner that he was not residing in

Namakkal and was residing in Tiruppur and filed documents to prove the

same, it is for the respondents to prove that the petitioner was residing in

Namakkal during that time and refused suit summon sent through Court

by examining the Bailiff, who made the endorsement. The learned Judge

failed to consider this fact and the documents filed by the petitioner.

12.Further, it is well settled that even if the exparte decree is

passed, the Court has to consider the plaint averments and the documents

filed by the plaintiff, give reasons for accepting the case of the plaintiff

and deliver the judgment by giving reasons. In the present case, the

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learned Judge has not complied with the provisions of the Civil Procedure

Code, while passing the exparte decree. The Division Bench judgments

relied on by the learned counsel appearing for the petitioner reported in

2011 (3) CTC 168 and 2021 (3) CTC 850 cited supra are squarely

applicable to the facts of the present case.

13.Considering the facts and also the contentions of the petitioner

that he did not execute agreement of sale, he signed in blank papers and

handed over the original document of title deeds as security for the

amounts received by him in the chit transaction to the 1st respondent's

son, it will be in the interest of justice that an opportunity must be given

to the petitioner to put forth his case. At the same time, it is to be taken

into account that the petitioner was not diligent enough to get back his

title deeds for 7 ½ years and the petitioner must be put on cost to

compensate the prejudice that will be caused to the respondents.

14.Considering all the above facts, the impugned order of the

learned Judge dismissing I.A. for condoning the delay is liable to be set

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aside and is hereby set aside. I.A.No.981 of 2013 in O.S.No.317 of 2005

is allowed on payment of cost of Rs.10,000/- (Rupees Ten Thousand

only) to the counsel for the respondents within a period of four (4) weeks

from the date of receipt of a copy of this order. On such payment,

I.A.No.981 of 2013 will be allowed. The learned Judge is directed to

number the I.A. filed to set aside the exparte decree and decide the same

on merits. If the petitioner fails to pay the cost within the time limit fixed

by this Court, the impugned order of the learned Judge dated 04.07.2015

made in I.A.No.981 of 2013 will be restored.

15.With the above directions, the Civil Revision Petition stands

allowed. No costs.

01.09.2021 Index : Yes/No Internet: Yes/No kj

To The Subordinate Judge Namakkal.

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V.M.VELUMANI,J.

kj

C.R.P.(NPD)No.3751 of 2015

01.09.2021

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