Kerala High Court
Omana vs R Anil Kumar on 19 December, 2012
Author: V.Chitambaresh
Bench: V.Chitambaresh
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR.JUSTICE V.CHITAMBARESH
WEDNESDAY, THE 19TH DAY OF DECEMBER 2012/28TH AGRAHAYANA 1934
CRP.No. 547 of 2012 ()
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CMA.21/2011 of ADDL.DISTRICT COURT, ALAPPUZHA.
OS.743/2007 of ADDL.MUNSIFF COURT, ALAPPUZHA
REVISION PETITIONER(S)/APPELLANT/2ND PETITIONER/DEFENDANT:
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OMANA, AGED 38 YEARS
W/O.UDAYAN,THYPARAMBIL VEEDU,KUNNUMMA VILLAGE
PULIKUNNU PANCHAYATH, ALAPPUZHA.
BY ADVS.SRI.P.VINODKUMAR
SRI.T.K.AJITH KUMAR
RESPONDENT(S)/RESPONDENT/PLAINTIFF :
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1. R ANIL KUMAR,
S/O.RAGHAVAN,ADITHYA, MULLACKAL
ALLEPPEY WEST VILLAGE, ALAPPUZHA-688501.
2. UDAYAN,
S/O.VIJAYAN,THYPARAMBIL VEEDU, KUNNUMMA VILLAGE
PULIKUNNU PANCHAYATH, ALAPPUZHA-688501.
R1 BY ADV. SRI.M.D.SASIKUMAR(CAVEATOR)
THIS CIVIL REVISION PETITION HAVING COME UP FOR ADMISSION
ON 19-12-2012, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:
V.CHITAMBARESH, J.
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C.R.P.No. 547 of 2012
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Dated this the 19th day of December, 2012
O R D E R
The suit is one for Specific Performance of an agreement for sale allegedly entered into between the plaintiff and defendants 1 and 2. An extent of about 5 cents of land was agreed to be conveyed for a total consideration of ` 1 lakh and a sum of ` 60,000/- was allegedly paid as advance on the date of agreement itself. The specific case of the defendants is that it is a loan transaction and not a sale transaction as contended by the plaintiff. It is stated that the plaint averments itself show the custody of the anterior documents of title with the plaintiff which is an indication that it is a loan transaction.
2. The suit was decreed ex-parte on 15.2.2008 and defendants 1 and 2 thereupon filed applications to set aside the ex-parte decree after condoning the delay. I.A.No.1227/2009 was filed under Order IX Rule 13 of the Code of Civil Procedure and I.A.No.1226/2009 was filed under Section 5 of the Limitation Act. The interlocutory applications filed on 27.5.2009 were dismissed C.R.P.No.547/2012 2 by the trial court on 23.8.2011 and affirmed in C.M.A.No.21/2011 on 25.6.2012.
3. It should be noticed that C.M.A.No.21/2011 was filed by the second defendant alone even though I.A.Nos.1227/2009 and 1226/2009 were filed by defendants 1 and 2 together. The specific case of the second defendant wife is that her husband who is the first defendant eloped with another person. The second defendant also points out that the first defendant was under treatment for dog bite and also for injuries sustained due to a stab on the abdomen. The second defendant comes from a lower strata of the society and she has also been examined as PW.1 to substantiate her contentions. It is evident from the course of the proceedings that the ex-parte decree as against defendants 1 and 2 are sought to be set aside as permitted under the proviso to Order IX Rule 13 of the Code of Civil Procedure.
4. Specific Performance is an equitable remedy and it is only proper that parties are afforded sufficient opportunity to substantiate their contentions. A valuable extent of 5 cents of C.R.P.No.547/2012 3 land situated in the District of Alappuzha is sought to be purchased in execution of a decree for specific performance. The contention of the second defendant that her husband was prevented from taking timely steps in the suit on account of prolonged treatment cannot altogether be brushed aside. I am inclined to afford an opportunity to the defendants to contest the suit on merits after setting aside the ex-parte decree in the suit for specific performance.
5. The impugned orders are set aside and the ex- parte decree in O.S.No.743/2007 on the file of the court of the Additional Munsiff of Alappuzha is set aside. This is subject to the condition that the petitioner/second defendant pays a sum of Rs.25,000/- as costs to the counsel for the first respondent/plaintiff. The costs as above is fixed taking note of the fact that the plaintiff has spent considerable amount towards stamp duty for execution f the sale deed through court. The said sum shall be paid within a period of one month from today failing which the impugned orders will remain in tact. The ex- parte decree will stand set aside in case the sum of Rs.25,000/- C.R.P.No.547/2012 4 is paid as costs in time as directed above. The court below shall dispose of the suit within a period of three months from the date of receipt of a copy of this order in case the ex-parte decree is set aside on compliance with the conditions.
The Civil Revision Petition is disposed of as above.
V.CHITAMBARESH, Judge.
nj.