V.Nirmala vs V.Neelamegam
2023 Latest Caselaw 4462 Mad

                                                                                    C.R.P.(PD)No.2866 of 2021

                                      IN THE HIGH COURT OF JUDICATURE AT MADRAS

                                                       DATED: 19.04.2023

                                                            CORAM:

                            THE HONOURABLE MRS.JUSTICE V.BHAVANI SUBBAROYAN

                                                    C.R.P.(PD)No.2866 of 2021
                                                   and C.M.P.No.20724 of 2021

                     V.Nirmala                                                               ... Petitioner

                                                               Vs.

                     1.V.Neelamegam
                     2.V.Annapoorani                                                      ... Respondents

                     Prayer: Civil Revision Petition filed under Article 227 of the Constitution of
                     India, praying to set aside the fair and decretal order dated 26.11.2021 in I.A.No.
                     2 of 2019 in A.S.SR.No.6795 of 2019 on the file of Principal City Civil Court,
                     Chennai.
                                        For Petitioner         : Mr.D.Senthilkumar
                                        For Respondents        : Mr.R. Harinath for R1
                                                                 Mr.V.B.Harikumar for R2

                                                         ORDER

This Civil Revision Petition has been filed to set aside the fair and

decretal order dated 26.11.2021 in I.A.No. 2 of 2019 in A.S.SR.No.6795 of

2019 on the file of the Principal City Civil Court, Chennai.

https://www.mhc.tn.gov.in/judis C.R.P.(PD)No.2866 of 2021

2.The revision petitioner herein is the second defendant, the first

respondent herein is the plaintiff and the second respondent herein is the first

defendant in the original suit.

3.Heard, learned counsel for the petitioner, learned counsel for the first

respondent and learned counsel for the second respondent and perused the

materials available on record.

4.On perusal of the records, it is seen that the first respondent/plaintiff has

filed a suit in O.S.No.3848 of 2014 for declaration that the Sale Deed bearing

Document No.2659 of 2008 dated 24.04.2008 on the file of the Sub Registrar

Office, Joint-I, Saidapet, Chennai, executed by the first defendant to and in

favour of the second defendant is null and void and set aside the same and for

permanent injunction restraining the second defendant from in any manner

interfering with the plaintiff's peaceful possession of the property bearing Door

No.LIG 1020, 36th Cross Street, Thiruvalluvar Nagar, Thiruvanmiyur, Chennai

- 600 041, within the jurisdiction of Velachery Taluk. The defendants have

contested the suit by way of filing the written statement and denied all the

averments made in the plaint. After perusing the plaint averments as well as the

https://www.mhc.tn.gov.in/judis C.R.P.(PD)No.2866 of 2021

written statement, and taking into consideration the oral and documentary

evidence, the Trial Court dismissed the suit in O.S.No.3848 of 2014 by

Judgment and Decree dated 10.02.2017. Subsequently, the first

respondent/plaintiff preferred an appeal in AS.SR.No.6795 of 2019 before the

learned Principal Judge, City Civil Court, Chennai. Furthermore, the first

respondent filed I.A.No.2 of 2019 seeking to condone the delay of 753 days in

preferring the appeal against the Judgment and Decree passed in O.S.No.3848 of

2014, dated 10.02.2017 by the XIV Assistant City Civil Court, Chennai. After

scrutinizing the relevant records, the said application was allowed on payment

of costs of Rs.3,000/- by order dated 26.11.2021. Challenging the said order, the

revision petitioner has filed this Civil Revision Petition.

5.It is the case of the first respondent/plaintiff that the plaintiff is the

absolute owner of the aforesaid property measuring an extent of 71.28 sq.mtrs

within Velachery Taluk. The suit property was allotted to the plaintiff by the

Tamil Nadu Housing Board by way of proceedings No.A7/13270/86, dated

29.04.1987. The plaintiff has appointed his mother Annapoorani (the first

defendant) as his Power of Attorney only to get the Sale Deed from the Tamil

Nadu Housing Board. After receiving the Sale Deed in Document No.7901 of

https://www.mhc.tn.gov.in/judis C.R.P.(PD)No.2866 of 2021

2007 from the Tamil Nadu Housing Board, the plaintiff raised funds and

constructed a house in ground and first floor and subsequently, the plaintiff and

the first defendant are living together in joint family in the suit property without

any encumbrance. Then, the plaintiff approached the Sub Registrar Office for

applying for an Encumbrance Certificate, from which the plaintiff found that the

suit property had some encumbrance. The first defendant/revision petitioner, the

mother of the plaintiff alienated the property to the second defendant by way of

a Sale Deed in Document No.2659 of 2008. Immediately, the plaintiff sent a

notice on 04.02.2014 to the defendants to cancel the Sale Deed fraudulently

executed by the first defendant and colluded with the second defendant, but the

defendants did not send any reply. A certified copy of the forged Sale Deed in

Document No.2659 of 2008 executed by the first defendant in favour of the

second defendant, was obtained.

6.On perusal of the records, it reveals that the plaintiff is the absolute

owner of the suit property. Due to his illness, he had been thrown out from his

own house. Since there is no one to help him, he could not arrange money to

contest the case before the Court. The second defendant has not paid any

consideration for purchasing the property from the first defendant as Power

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Agent of the plaintiff. In fact, the first defendant herself filed a suit before the

City Civil Court in O.S.S.R.No. 2236 2019 to set aside the Judgment and Decree

for the property in dispute. As per the second defendant's contention, she had

purchased a property from the first defendant. But she was not even married at

the time of said sale and having no income at hand, she could not have

purchased the property. The transaction is a fraudulent one. Due to his ill-health,

the plaintiff was unable to file an appeal within the stipulated time. Therefore,

there is a delay of 753 days in preferring the appeal.

7.On the other hand, on being contested, the second respondent stated that

there is no valid explanation for the delay. Each and every day delay should be

explained. The allegations made in the affidavit are invented for the purpose of

this petition. The plaintiff had knowledge about the proceedings including the

disposal of the suit then and there, and there is no valid reason stated to condone

the delay and pray for dismissal of the petition. On behalf of the plaintiff, he

examined himself as PW1 and the certified copy of the unnumbered plaint filed

by the second respondent and the rejection of the plaint order, had been marked

as Ex.P1.

https://www.mhc.tn.gov.in/judis C.R.P.(PD)No.2866 of 2021

8.On perusal of the impugned order, it is seen that the plaintiff is the son

of the first defendant and brother of the second defendant. The property in

dispute was allotted in the name of the present plaintiff by the Tamil Nadu

Housing Board. The plaintiff has executed Power of Attorney to get Sale Deed

executed on behalf of him to his mother Annapoorani. Accordingly, the Sale

Deed has been executed by the Tamil Nadu Housing Board in favour of the

plaintiff, represented by the Power of Attorney/the first defendant viz.,

Annapoorani. The second defendant happens to be the sister of the plaintiff, and

she claimed that she has purchased the property by way of Power of Attorney

and as such, she is the owner of the property. After contesting the matter, the

suit has been dismissed. Apart from that, it appears that the first defendant has

filed a suit for declaration that the Judgment and Decree in respect of the

property in dispute is null and void, which has been rejected by the learned I

Assistant Judge, City Civil Court, Chennai, on 26.02.2019. Thereafter, the

petition for condoning the delay has been filed. Now, the plaintiff and the first

defendant are sailing together and except the allegations made in the affidavit,

no other document has been filed to substantiate the allegation for condoning the

delay.

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9.Learned counsel for the first respondent would submit that originally

the first respondent purchased a property. Now he was chased out of the house

and not in a position to make money to approach the lawyer to file an Appeal

Suit. At this juncture, the typed set of papers was filed by the revision petitioner

wherein it was submitted that General Power of Attorney was executed in favour

of his mother for sale of property and also to obtain appropriate documents of

LIG Flat Thiruvanmiyur Extn. LIG No.1020. Then the said mother executes an

agreement in favour of one Kannaiyaram's son viz., K.Balakrishnan. It was

submitted without any date, and he has entered into a compromise. As per his

father's intention on 07.05.2007 Rs.5,00,000/- was received and on 15.06.2007

Rs.5,00,000/- was received, totally, Rs.10,00,000/- has been received by him

and he will execute a Registered Deed and he is not in a position to execute the

Sale Deed since he is not in town due to his employment. Then, the

mother/Power Agent executed a Sale Deed in favour of the petitioner. Regarding

the said document produced by him that he has received a sum of Rs.10,00,000/-

as sale consideration from one party viz., Nirmala/the petitioner herein. It could

be seen that the signature found in all the documents including the Court

affidavits and the plaint whereas the signature found in the said letter on the face

of it differs which was produced by the said Nirmala/the petitioner herein.

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10.All the documents signed by the said person have different signatures.

The trial Court has failed to consider the documents produced before it and the

same has also produced before this Court would show that something is

incorrect. There is a clause stated in the Power of Attorney that the Power Agent

can sell the property. Utilizing the same, the sister herself had purchased a

property for a receipt of Rs.10,00,000/-. All these aspects have not been looked

into by the trial Court while deciding the suit and the respondent approached the

Court belatedly in filing the Appeal Suit with a delay of 753 days, the Appellate

Court has rightly condoned the delay by imposing cost.

11.This Court is of the view that the petitioner has to prove her case in the

Appeal Suit since it is a settled position of law that, an appeal is a continuation

of the proceedings of the original Court. Therefore, this Court is also of the

view that one more opportunity may be given to the said person as being a

family dispute between the parties. If the petitioner is able to sustain her case

before the Appellate Court, then she is entitled for the property and if the parties

may go for a settlement also if the suit is proceeded with.

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12.Considering the above facts and circumstances of the case and the

submission made by the learned counsel appearing on either side, this Court is

not inclined to interfere with the order passed by the Appellate Court and

accordingly, the Civil Revision Petition is dismissed. However, there shall be

no order as to costs. Consequently, the connected miscellaneous petition is

closed.

19.04.2023 Index:Yes/No Speaking order / Non speaking order Neutral citation: Yes/No msm/pam

To

The Principal City Civil Court, Chennai.

https://www.mhc.tn.gov.in/judis C.R.P.(PD)No.2866 of 2021

V.BHAVANI SUBBAROYAN, J.

pam

C.R.P.(PD)No.2866 of 2021

19.04.2023

https://www.mhc.tn.gov.in/judis