1 CRP.No.3996 of 2018
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 01.11.2022
CORAM:
THE HON'BLE MRS. JUSTICE T.V.THAMILSELVI
C.R.P.No. 3996 of 2018
and
CMP.No.22144 of 2018
1. Tamilarsan (Died)
2. Jayakantham
3. Raja,
4. Elavrasan ..
Petitioners
Versus
Suresh ...Respondent
Civil Revision Petition is filed under Article 227 of the Constitution
of India, to set aside the fair and decretal order dated 07.08.2018 made in
I.A.No.379 of 2016 in O.S.No.142 of 2012 on the file of Sub-Ordinate
Judge's Court at Kallakurichi.
For Petitioner : Mr.P. Valliappan
For Respondent : No Appearance
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2 CRP.No.3996 of 2018
ORDER
This Civil Revision Petition has been filed by the
petitioner/defendant seeking to set aside the fair and decretal order dated
07.08.2018 made in I.A.No.379 of 2016 in O.S.No.142 of 2012 on the file
of Sub-Ordinate Judge's Court at Kallakurichi.
2. The petitioner is the defendants and the respondent is the plaintiff
in the original suit.
3. The case of the petitioners is that the respondent/plaintiff filed a
suit in O.S.No.142 of 2015 before the Sub-Ordinate Judge's Court at
Kallakurichi for specific performance of contract and other consequential
relief. Due to non-appearance of the defendant's side, the Trial Court
passed ex-parte decree by Judgment dated 18.06.2013 as prayed for in
favour of the plaintiff. Thereafter, the defendant has filed the application
in I.A.No.379 of 2016 before the Trial Court to set aside the exparte decree
dated 18.06.2013 with condonation of delay of 963 days. After hearing
both sides, the Trial Court dismissed the aforesaid application being not
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satisfied with the reasons stated by the defendant therein. Challenging the
aforesaid findings of the Trial Court, the defendant/petitioner herein has
filed the present Civil Revision Petition to set aside the same.
4.The learned counsel for the petitioners would submit that the
defendant/1st petitioner herein was not aware of the exparte decree passed
by the Trial Court. During the pendency of the suit, the defendant was in
Mumbai with his relative's house for 2 1/2 years due to his sons did not
take care of him in the family dispute. After returning to his home, he came
to know about the suit proceedings. Then, he immediately filed the
application in I.A. No.379 of 2016 for condonation of delay under Order 9
Rule 13 of the C.P.C. Without considering the aforesaid facts and age of
the defendant/1st petitioner herein, now, as he died, his legal heirs are
brought on record in the petition, the learned Trial Judge dismissed the
said application in stead of allowing the petitioner to contest the suit on
merit even though the Trial Court passed the Ex-parte decree without
hearing the contention of the defendant's side. As the petitioner has a good
defense in the suit to prove on his side and if delay is not condoned, the
petitioner would lose his property. As the defendant/1st petitioner died, In
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support of his argument, the learned counsel for the petitioner has relied on
the Judgment dated 08.07.2019 passed by the Apex Court in the case of
Robin Thapa Vs. Rohit Dora reported in 2019(6) CTC 344 wherein it is
observed as follows:
"...12... The appellant came to be served Notice of the Execution proceedings through said messenger on 27.03.2015. Thus, the case of the appellant that appellant came to know about the passing of the Decree only on 17.11.2015, cannot be acted upon. This is besides noticing that in execution of the Decree, the Sale Deed has been executed in favour of the defendant and it is only thereafter, that despite receipt of the Notice, dated 27.03.2015, the Appellant has set up the case that he came to know of the passing of the decree only sever months after.".
13. The matter arises from a Suit for Specific Performance. It may be true that there is a case for the respondent that the Appellant has actually let out the building on rent. The Appellant's case is that this the Appellant's Residential house and the matter is a Loan transaction. Specific relief is undoubtedly a discretionary relief. Appellant has submitted that the Appellant is prepared to deposit the entire amount spent by the Respondent towards getting Sale Deed executed. We would
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think that the interest of justice demands that subject to putting the Appellant on terms, an opportunity should be given to the Appellant to contest the case and the case must be directed to be disposed of within the time limit. Accordingly, we the allow the appeal and set aside the impugned order subject to the following conditions:"
5. In the counter filed by the plaintiff/respondent herein would
submit that the defendant has not taken any steps to set aside the exparte
decree passed by the Trial Court in time even though he was very well
aware of the suit proceedings. The defendant has filed the application with
the intention to drag on the suit proceedings. The 1st petitioner did not go
to Mumbai during the pendency of the suit, he was in his native place
knowing the details of suit proceedings. The defendant/1st petitioner herein
was very well available at the time of execution of proceedings in E.P.No.4
of 2015. The Execution Court has executed sale deed in favour of the
plaintiff/respondent herein on 23.12.2014 vide document No.234 of 2015
at Rishivandiyam Sub Registrar Office. Thereafter, the plaintiff/respondent
is in possession and in enjoyment of the suit property from the date of
registration. Even after knowing all these facts, the defendants/petitioners
have willfully filed the application for condonation of delay 962 days with
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the bad intention to extract money from the plaintiff/respondent herein.
6. Heard the learned counsel for the petitioners and perused the
materials available on record. There is no representation for the
respondent.
7. On a perusal of the records, it is seen that at the time of filing of
the suit, the age of the defendant was at 61 years, he is now aged about 71
years who is also died and hence his legal heirs are brought on record in
this petition. Admittedly, when the defendant is the original owner of the
property, the plaintiff has filed the suit in O.S. No.142 of 2012 praying for
specific performance of contract. Due to the absence of the defendant side,
the Trial Court passed Exparte Decree dated 18.06.2013 based on the
Ex.A1 dated 29.08.2011-Sale Agreement, without hearing the contentions
on the side of the defendant to prove on his side. Further, even in the
execution petition in E.P. No.4 of 2015, the defendant who is owner of the
suit property, was not served summon properly and without giving proper
opportunity to the defendant to contest on his side, the suit property to the
extent of 2 acres and 57 cents was registered in favour of the
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plaintiff/respondent herein based on the exparte decree dated 18.06.2013
which was passed like cryptic order mechanically without any discussion.
Hence, it cannot be accepted since the plaintiff has not succeed the suit on
merit and wants to take away the suit property by obtaining the exparte
decree dated 18.06.2013 passed by the Trial Court.
8. Under such circumstances, having considered the aforesaid
observation of the Apex Court and the facts and circumstances of the case,
this Court is inclined to allow this petition giving one more opportunity to
the petitioners herein to contest the suit on merit on condition of payment
of Rs.5,000/- to the credit of the Original Suit in O.S. No.142 of 2012
within a period of three weeks from the date of receipt of copy of this order
without fail. The Trial Court is hereby directed to restore the suit and
dispose of the same on merit within a period of six months after full
pledged trial by considering the oral and documentary evidence put forth
by both parties. Both parties are given liberty to file reply and additional
written statement with regard to the case before the Trial Court.
T.V.THAMILSELVI, J.
Lbm
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9. In the result, the Revision Petition is allowed by setting aside the
impugned order dated 07.08.2018 made in I.A.No.379 of 2016 in O.S.
No.142 of 2012 passed by the Trial Court. No costs. Consequently, the
connected miscellaneous petition is closed.
01.11.2022
Lbm
Index : Yes/No
Speaking Order : Yes/No
To
1. The Sub-Ordinate Judge's Court at Kallakurichi.
2. The Section Officer, V.R.Section High Court, Madras.
C.R.P.No. 3996 of 2018 and CMP.No.22144 of 2018
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