Madras High Court
Dr.M.Meera Alias Devasena vs P.Venkatesan on 22 January, 2025
Author: N. Sathish Kumar
Bench: N. Sathish Kumar
C.R.P.No.1684 of 2023
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 22.01.2025
CORAM
THE HON'BLE MR.JUSTICE N. SATHISH KUMAR
C.R.P.No.1684 of 2023
and C.M.P.No.10965 of 2023
1.Dr.M.Meera alias Devasena
2.V.Kannan
3.K.Andal
4.G.Nallasamy
5.M.Vythianathan ... Petitioners
-Vs-
1.P.Venkatesan
2.M.Suguna
3.P.Rathinam ... Respondents
Prayer : Civil Revision Petition under Article 227 of the Constitution of India to set
aside the judgment and decree dated 25.02.2021 in A.S.No.15 of 2020, on the file
of the VI Additional City Civil Court, Chennai reversing the decree and judgment
passed in O.S.No.5317 of 2011 dated 17.10.2019 on the file of the VII Assistant
City Civil Court, Chennai.
For Petitioner : Mr.T.M.Mano
For Respondents : Mr.T.Selvakumar – for R1 and R2
R3 – Private notice served, refused
ORDER
This civil revision petition has been filed under Article 227 of the Constitution
of India to set aside the judgment and decree of the first appellate Court in
A.S.No.15 of 2020 on the file of the VI Additional City Civil Court, Chennai.
https://www.mhc.tn.gov.in/judis
2. In this revision, the petitioner challenges the judgment and decree of
the first appellate Court mainly on the ground of fraud played on the Court by the
parties. Further, the judgment does not even contain any reasons and without
making them as parties, the judgment is sought to be implemented against the
revision petitioners, who are the purchasers of the apartments in the year 2010 and
2011 legally.
3. The following facts are necessary for disposal of this case. Originally the
subject property was purchased by one Rathinam on 26.08.1985 vide Document
No.2807 of 1985. After the purchase, he has settled the property in favour of his
wife vide Document No.1374 of 2010 on 15.02.2010. Pursuant to the said
settlement, his wife has executed a power of attorney in favour of one Loganathan
vide registered Document No.880 of 2010. Pursuant to the same, sale deed was
executed in favour of one D.Ramamoorthy vide Document No,6210 of 2010. The
said Ramamoorthy decided to develop apartments and appointed one K.Kadhirvelu
and S.Anandan, through Document No.1265 of 2010. Thereafter, the revision
petitioners have purchased the property through various documents ranging from
22.10.2010 till 09.05.2011 based on the power of attorney executed in favour of the
developer.
https://www.mhc.tn.gov.in/judis
4. Thereafter, the first respondent Venkatesan, claimed to be the brother of
Rathinam, who originally purchased the property, has sent a legal notice on
19.09.2011 to all the purchasers claiming that the property purchased in the name
of his brother is only benami purchase and purchase money is actually paid by him.
He has also claimed that all the original documents are with him.
5. After issuing notice dated 19.09.2011 as against the purchasers viz., the
revision petitioners, no action has been taken against them. Thereafter, he filed a
suit in O.S.No.283 of 2010 for declaring the settlement deed executed by his
brother in favour of his wife as null and void. The plaint proceeded on the ground
that the entire purchase is a benami purchase and the purchase money has actually
been paid by him. However, the said suit was dismissed for default on 16.03.2022.
6. When the matter stood thus, another suit has been filed by the first
respondent in O.S.No.5317 of 2011 against his brother alone and none of the
revision petitioners were made parties to the said suit. It is to be noted that though
the legal notice has been sent to all the revision petitioners as eary as on
19.09.2011, they were not made parties in both the suits filed by the first and
second respondents. It has already been noted that the earlier suit has been
dismissed for default and the subsequent suit in O.S.No.5317 of 2011 has been filed
seeking to cancel the sale deed executed by his brother Rathinam in favour of his
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wife Jaya. In fact, the same allegation that has been pressed into service in the
earlier suit has been pressed into service in the subsequent suit also. Only the
relief sought for was different, wherein a declaration has been sought for in respect
of the sale deed executed in the year 1985 in favour of one Rathinam, his brother.
However, the Trial Court dismissed the suit holding that the plea of benami
transaction is barred under law. Further, the second suit is also barred under Order
II Rule 2 of CPC since the earlier suit has already been dismissed for default.
7. Challenging the said finding, it appears that an appeal has been filed by
the respondents 1 and 2 before the VI Additional City Civil Court, Chennai. The
learned Judge, by the judgment dated 27.02.2021 has held that the suit is not
barred by Benami Transaction Act and it is also not hit by Order II Rule 2 of CPC.
The reason for arriving at such a finding by the first appellate Court was that the
defendant has not raised the plea of bar under Order II Rule 2 and the bar of
benami transaction. Holding so, the first appellate Court has set aside the decree
and judgment of the trial Court and decreed the suit in entirety, without even
appreciating the basic requirements of pleadings and evidence and set aside the
document of the year 1985.
8. The judgment of the first appellate Court is totally contrary to the well
established positions of law. There were no reasons assigned to set aside the
document and the only finding that was recorded is that since the appeal is allowed,
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the entire document has to be set aside. This judgment is totally contrary to Order
XX Rules 4 and 5 of CPC.
9. It appears that the first respondent has also filed a writ petition in
W.P.No.8797 of 2023 before a Division Bench of this Court claiming as if they are in
possession of the property suppressing the fact of all the suits and the legal notices
sent to the revision petitioners. In the said writ petition, it was pleaded as if the
petitioner was in possession of the property. Only official respondents were made
as parties to the said writ petition and a direction was sought for to issue notice for
demolition of the building.
10. Thereafter, in another writ petition filed by the revision petitioners herein
in W.P.No.17043 of 2023, another Division Bench of this Court, by order dated
04.01.2024, set aside the notice issued by the officials based on the earlier
directions given in W.P.No.8797 of 2023.
11. These facts have been narrated only to show how the process of Courts
has been misused by the respondents. When the respondents were already aware
of the fact that the revision petitioners have purchased the property, even after
issuing legal notice dated 19.09.2011, conveniently they have not been made as
parties in any of the suits, and behind their back orders were obtained, as if they
are the owners of the property. The very conduct and the manner in which the
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suits have been filed clearly exhibit the nature of the collusion and fraud played on
the Court to grant undue advantage in order to achieve unjust enrichment.
12. In that view of the matter, when the first appellate Court judgment is
bereft of details, where there is no discussion of the facts and law and merely on
the basis of submissions, the trial Court order is set aside, such an order is
erroneous and this Court is of the view that the first appellate Court has committed
patent illegality. Taking into the nature of the order passed by the first appellate
Court violating the provisions of law, this Court can certainly invoke the powers
under Article 227 of the Constitution to set right the mistake.
13. Accordingly, the order passed by the first appellate Court dated
25.02.2021 in A.S.No.15 of 2020 is set aside and the learned VI Additional Judge,
City Civil Court is directed to re-hear the appeal on merits. The revision petitioners
are also permitted to implead themselves in the first appeal. After hearing the
revision petitioners, the matter has to be decided on its own merits. With the above
observations, this Civil Revision Petition is disposed of. No costs. Consequently,
connected miscellaneous petition is closed.
22.01.2025
Index : Yes
Neutral Citation : Yes
KST
https://www.mhc.tn.gov.in/judis
To
The VI Additional Judge
City Civil Court, Chennai.
https://www.mhc.tn.gov.in/judis
N. SATHISH KUMAR, J.
KST
22.01.2025
https://www.mhc.tn.gov.in/judis
