Madras High Court
Justin Patrick Pushparaj vs N.Chelladurai on 10 August, 2023
C.M.A.No.1205 of 2023
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 10.08.2023
CORAM :
THE HONOURABLE MR.JUSTICE SUNDER MOHAN
C.M.A.No.1205 of 2023
and C.M.P.No.11780 of 2023
Justin Patrick Pushparaj ...Appellant
Vs.
1.N.Chelladurai,
2.Michael Anthony,
3.Sundar,
...Respondents
Prayer: This Civil Miscellaneous Appeal is filed under Order 43 Rule 1 (ja)
of the Civil Procedure Code, 1908 against the order and decretal order in
E.A.No.7 of 2022 in E.A.No.4 of 2021 in E.P.No.93 of 2019 in O.S.No.33 of
2015 dated 27.04.2023, on the file of the IV Additional District and Sessions
Judge, Thiruvallur @ Ponneri.
For Appellant : Mr.Sunny Sheen Akkara
For Respondents : Mr.A.Palaniappan and
Mr.K.Balaji for R1
R2 and R3 - Exparte
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C.M.A.No.1205 of 2023
JUDGMENT
This appeal challenges the Order passed in E.A.No.7 of 2022 in
E.A.No.4 of 2021 in E.P.No.93 of 2019 in O.S.No.33 of 2015 dated
27.04.2023, on the file of the learned IV Additional District and Sessions
Judge, Thiravallur @ Ponneri.
2. The brief facts leading to the filing of the above appeal are as
follows:
(a) The first respondent filed a Suit for Specific Performance in
O.S.No.33 of 2015 dated 27.04.2023, on the file of the learned IV Additional
District and Sessions Judge, Thiruvallur @ Ponneri, against the second and
third respondents herein. The first respondent claimed that the second and
third respondents had executed a Sale Agreement on 23.04.2012, agreeing to
sell a property measuring an extent of 7029 sq.ft in Survey.No.211/1 of
Manali Village. In the said Suit, the second and third respondents remained
ex-parte. The learned District Judge, Thiruvallur @ Ponneri decreed the
Suit and directed the second and third respondents to execute the Sale Deed
in respect of the property in favour of the first respondent.
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C.M.A.No.1205 of 2023
(b) The appellant on coming to know of the decree dated 07.01.2016,
filed an unnumbered I.A., in O.S.No.33 of 2015, under Section 5 of the
Limitation Act to condone the delay of 604 days in filing the application to
set aside the exparte decree and to implead the appellant in the Suit. The said
petition was dismissed by the Order dated 11.12.2017. The appellant
challenged the said Order before this Court in C.R.P(PD).No.642 of 2018.
This Court by the order dated 23.02.2018, dismissed C.R.P(PD).No.642 of
2018 giving liberty to the appellant to work out his remedy before the
appropriate Forum.
(c) Meanwhile, the first respondent filed E.P.No.93 of 2019 to execute
the decree. He had also filed E.A.No.4 of 2021 in E.P.No.93 of 2019 seeking
Police protection for execution. The appellant filed E.A.No.7 of 2022
in E.P.No.93 of 2019 under Order 21 Rule 97 of Civil Procedure Code,
stating that he is in possession and enjoyment of the disputed property and
neither the first respondent nor the second and third respondents have any
right or title over the said property.
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C.M.A.No.1205 of 2023
(d) The learned IV Additional District and Sessions Judge, Thiruvallur
@ Ponneri dismissed the said application, primarily on the ground that an
application under Order 21 Rule 97 of C.P.C., is not maintainable at the
instance of an obstructer. The learned IV Additional District and Sessions
Judge, Thiruvallur @ Ponneri also found that the appellant only filed Xerox
copies of few documents in support of his petition.
(e) Aggrieved over the order passed by the learned IV Additional
District and Sessions Judge, Thiruvallur @ Ponneri, the appellant is before
this Court.
3. Learned counsel for the appellant, submitted that the appellant had
taken all steps to set aside the exparte decree in favour of the first respondent;
that the appellant had filed a petition in the Suit to condone the delay in filing
a impleading petition and to set aside the exparte decree; that the appellant
had also filed a Suit in O.S.No.272 of 2018 on the file of the learned
Principal District Judge, Thiruvallur to declare the decree obtained by the
first respondent as null and void and the said Suit is pending; that it cannot be
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C.M.A.No.1205 of 2023
said that the obstructer has no interest in the property; that the application
filed by the obstructer is in accordance with law and it is maintainable as per
the Judgments of the Hon’ble Supreme Court and this Court in several
decisions. He relied upon the following Judgments (a) Brahmdeo
Chaudhary Vs. Rishikesh Prasad Jaiswal and another reported in (1997) 3
SCC 694 (b) N.S.S.Narayana Sarma and others Vs. Goldstone Exports (P)
Ltd. and others reported in (2002) 1 SCC 662 (c) Ashan Devi and another
Vs. Phulwasi Devi and others reported in (2003) 12 SCC 219
(d) Shreenath and another Vs. Rajesh and others reported in Rajesh and
others reported in (1998) 4 SCC 543 in support of his submission.
The learned counsel further submitted that since the application filed by the
appellant was dismissed holding that the same is not maintainable, the
appellant has to be given an opportunity to establish his title over the
disputed property.
4. Learned counsel for the first respondent submitted that though the
learned Judge had observed that the petition filed by the appellant was not
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C.M.A.No.1205 of 2023
maintainable, the learned Judge had discussed the merits also; that the
appellant had opportunity to let in evidence but had not chosen to do so; that
he had filed only Xerox copies; that the appellant is obstructing the first
respondent who had obtained the decree lawfully and he is by adopting
dilatory tactics to prevent the first respondent from taking possession of the
property; that the learned IV Additional District and Sessions Judge,
Thiruvallur @ Ponneri, therefore, rightly dismissed the application on merits
stating that the appellant had not established his case in a manner known to
law and therefore, prayed for dismissal of the appeal.
5. The second and third respondents remained exparte before the lower
Court and hence, the appellant prayed for dispensing with notice to the
second and third respondents.
6. The question in the instant appeal is:
(a) Whether the application filed by the appellant under Order 21 Rule
97 of C.P.C., is maintainable ?
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C.M.A.No.1205 of 2023
7. From the facts narrated above, it is seen that the appellant has filed
various petitions including a Suit questioning the decree obtained by the first
respondent. Be that as it may. It is well settled that an obstructer is entitled to
file an application under Rule 21 Rule 97 of C.P.C., for the purpose of
determining questions involving the right and title or interest in the property.
According to the appellant, the second and third respondents have obtained a
decree by collusion and therefore, it is not binding on him. It is also trite that
a declaration under Section 34 of the Specific Relief Act, 1963, is an
adjudication in personam and it binds only the parties to the Suit as per
Section 35 of the Specific Relief Act, 1963. Therefore, it cannot be said that
the appellant has no right to file an application under Order 21 Rule 97 of
C.P.C as observed by the Hon'ble Supreme Court and this Court in several
cases.
8. Further, it is seen that the reading of the order does not suggest that
the learned Judge had adjudicated the issue on merits. The learned Judge
ought to have given an opportunity to both the appellant and the respondents
to adduce evidence in support of their rival claims. Therefore, this Court is of
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C.M.A.No.1205 of 2023
the view that the impugned order is liable to be set aside and the appellant is
entitled to maintain the application filed under I.A.No.7 of 2022 in E.A.No.4
of 2021 in E.P.No.93 of 2019 in O.S.No.33 of 2015.
9. The learned IV Additional District and Sessions Judge, Thiruvallur
@ Ponneri is directed to decide I.A.No.7 of 2022 in E.A.No.4 of 2021 in
E.P.No.93 of 2019 in O.S.No.33 of 2015 on merits, expedite its adjudication
and in any event, complete it within a period of six months from the date of
receipt of a copy of this Judgment.
10. With the above observation, this Civil Miscellaneous Appeal is
allowed. Consequently, the connected miscellaneous petition is closed.
10.08.2023
dk
Index: Yes/No
Neutral Citation: Yes/No
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C.M.A.No.1205 of 2023
To
1. The IV Additional District and Sessions Judge,
Thiruvallur @ Ponneri.
2. The Section Officer,
VR Section,
High Court of Madras,
Chennai.
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C.M.A.No.1205 of 2023
SUNDER MOHAN, J
dk
C.M.A.No.1205 of 2023
and C.M.P.No.11780 of 2023
10.08.2023
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