Madras High Court
Balakrishnan vs Kaliaperumal on 6 December, 2021
CRP(MD).No.234 & 330 of 2021
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
Pronounced on : 06.12.2021
CORAM
THE HONOURABLE MR.JUSTICE K.MURALI SHANKAR
C.R.P.(MD).Nos.234 & 330 of 2021
and
CMP(MD)Nos.1404 and 1863 of 2021
C.R.P.(MD).No.234 of 2021:
Balakrishnan : Petitioner
Vs.
1.Kaliaperumal
2.Karuppaiah : Respondents
PRAYER: Civil Revision Petition filed under Section 115 CPC, to call for the
records and quash the entire proceedings in E.P.No.33 of 2016, dated 17.10.2019
in O.S.No.26 of 2010 and subsequent order dated 06.11.2019.
For Petitioner : Mr.D.Parisuthanathan
For Respondents : Mr.Baalasundaram, for R1.
C.R.P.(MD).No.330 of 2021:
Kaliaperumal : Petitioner
Vs.
Santhi : Respondent
PRAYER: Civil Revision Petition filed under Section 115 of C.P.C, to set aside
the fair and decreetal order passed by the Hon'ble Principal Subordinate Judge,
https://www.mhc.tn.gov.in/judis
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CRP(MD).No.234 & 330 of 2021
Pudukkottai in E.A.No.11 of 2020 in E.A.No.168 of 2019 in E.P.No.33 of 2016
in O.S.No.26 of 2010, dated 04.03.2020.
For Petitioner : Mr.K.Baalasundaram
For Respondent : Mr.N.Marimuthu,
for Mr.M.Krishnaveni
COMMON ORDER
The Petition in CRP(MD)No.234 of 2021, has been filed, invoking revisional jurisdiction of this Court under Section 115 of the Code of Civil Procedure to quash the entire execution proceedings in E.P.No.33 of 2016 in O.S.No.26 of 2010 and the orders passed therein, on the file of the Principal Subordinate Court, Pudukkottai.
2. The Petition in CRP(MD)No.330 of 2021, is directed against the orders passed in E.A.No.11 of 2020 in E.A.No.168 of 2019 in E.P.No.33 of 2016 in O.S.No.26 of 2010, dated 04.03.2020, refusing to eschew the documentary evidence adduced in Ex.P.1 to Ex.P.4 from the case records.
3.For the sake of convenience and brevity, the parties herein after will be referred as per their ranking/status in the original suit. https://www.mhc.tn.gov.in/judis 2/30 CRP(MD).No.234 & 330 of 2021
4. The gist of the journey of the above case up to this Court, is as follows:
(a) The plaintiff claiming that the defendants, who are the owners of the suit property, have received the sale price of Rs.4,75,000/- and handed over the vacant possession of the property and executed a document therefor, on 29.06.2009, but refused to execute the sale deed and get the sale deed registered, has filed the suit in O.S.No.26 of 2010 on the file of the Sub Court, Pudukkottai, claiming the relief of specific performance of the document dated 29.06.2009.
(b) The plaintiff, on the date of the suit itself, has filed two applications under Order 39 Rules 1 and 2 CPC, claiming temporary injunction in I.A.No.58 of 2010 restraining the defendants from alienating or encumbering the suit property and the petition in I.A.No.59 of 2010, restraining the defendant and their men from interfering with the plaintiff's peaceful possession and enjoyment of the suit property and that he has obtained ad-interim injunction orders in both the applications.
(c) The first defendant, who is the father of the second defendant has filed his counter statement disputing the receipt of the alleged sale price of Rs.4,75,000/- and handed over the possession of the property and execution of a document dated 29.06.2009. The first defendant, in order to purchase a landed property, has borrowed a sum of Rs.1,00,000/- from the plaintiff on 29.06.2009 https://www.mhc.tn.gov.in/judis 3/30 CRP(MD).No.234 & 330 of 2021 and as per the directions of the plaintiff, he had handed over two unfilled, but signed Rs.20/-stamp papers and that the first defendant subsequently, came to know with the help of those stamp papers, he had created certain documents. Since summons and notices sent to the second defendant were not served, substituted service was ordered and that thereafter, the second defendant was set ex-parte. Since the first defendant has not filed his written statement, he was also set ex-parte. Thereafter, the learned Subordinate Judge, Pudukkottai has passed ex-parte judgment and decree dated 15.02.2011, granting the relief as prayed for by the plaintiff.
(d) The injunction orders granted in I.A.Nos.58 and 59 of 2010 were extended periodically and since the suit was decreed, the petitions were ordered to be closed on 15.02.2011.
(e)The plaintiff has then laid the execution in E.P.No.85 of 2011, for execution and registration of sale deed in pursuance of the decree for specific performance, dated 15.02.2011. In the said execution petition also, the defendants had remained ex-parte. Consequently, the Executing Court has executed the sale deed, dated 29.04.2013 and got it registered. https://www.mhc.tn.gov.in/judis 4/30 CRP(MD).No.234 & 330 of 2021
(f) Meanwhile, the first defendant has filed a petition in I.A.No.926 of 2011 under Section 5 of Limitation Act to condone the delay of 259 days in filing the petition for setting aside the ex-parte decree and after enquiry, the trial Court has passed a conditional order for condoning the delay on payment of cost and in pursuance of the same, since the first defendant has paid the cost imposed, the petition was ordered to be allowed. Subsequently, the petition filed under Order 9 Rule 13 CPC was taken on file in I.A.No.516 of 2012 and the trial Court has passed a similar conditional order, directing the first defendant to pay cost of Rs.500/-. But since the first defendant has not paid the cost imposed, the petition in I.A.No.516 of 2012 was ordered to be dismissed.
(g)Thereafter, the plaintiff has filed another execution petition in E.P.No.33 of 2016 now under challenge, seeking delivery of the suit property. Similar to the earlier proceedings, since the defendant had remained ex-parte, delivery was ordered on 28.08.2019 and that subsequently, possession was taken by the plaintiff through Court Ameen and after delivery, the execution proceedings were ordered to be terminated on 02.12.2019.
(h)The second defendant, who had remained ex-parte in the entire proceedings has now come forward with the present revision in CRP.(MD) No.234 of 2021, seeking quashment of the execution proceedings in E.P.No.33 of 2016.
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(i) One Tmt.K.Santhi, wife of the first defendant has filed three applications in E.A.No.168 of 2019, under Order 21 Rules 99 and 100 CPC, seeking possession of the suit property and other petition in E.A.No.169 of 2019, under Order 39 Rules 1 and 2 CPC, claiming temporary injunction restraining the decree holder from altering the superstructure in the suit property till the disposal of the petition in E.A.No. 168 of 2019 and the third one in E.A.No.170 of 2019 filed under Order 26 Rule 9 CPC for appointment of Commissioner to ascertain the present physical features of the suit property.
(j)When the enquiry in E.A.No.168 of 2019 was in progress, the third party-objector without adducing any oral evidence, has exhibited four documents as Ex.P.1 to Ex.P.4 on her side and when the case was pending for decree holder side enquiry, the decree holder has filed a petition in E.A.No.11 of 2020 under Section 151 CPC, seeking orders to eschew the documentary evidence adduced in Ex.P.1 to Ex.P.4 from the evidence, as they are inadmissible in law and to allow the commission petition in E.A.No.170 of 2019 and to receive the report of the Commissioner and to record that the third party objector has no oral evidence and then to commence the enquiry from the side of the decree holder. The learned Executing Court has passed the impugned order, dated 04.03.2020 allowing the petition partly and permitting the decree holder to record his side evidence and dismissing relief with respect to eschew of the documents in Ex.P.1 https://www.mhc.tn.gov.in/judis 6/30 CRP(MD).No.234 & 330 of 2021 to Ex.P.4 from the records. Aggrieved by the dismissal of his prayer for eschewing the documents in Ex.P.1 to Ex.P.4, the decree holder has come forward with the present revision in CRP(MD)No.330 of 2021.
5.Since the second defendant has challenged the execution proceedings in E.P.No.33 of 2016 itself, let us consider the revision in CRP(MD)No.234 of 2021 at first.
6.The learned counsel for the revision petitioner/second defendant would submit that the plaintiff, after getting a decree in respect of the property situated in Natham Survey No.90/1 of Kariapatti, Panangudi Revenue Taluk of Pudukkottai District, has unlawfully taken possession of the property situated in Natham Survey Nos.90/5, 90/6 and 90/7 of Kariapatti, Panangudi Revenue Village of Pudukkottai District, which were in the actual possession of the defendants, that the plaintiff with the help of two unfilled, but signed stamp papers taken from the first defendant, had fabricated a document dated 29.06.2009 naming it as a sale deed, as if the entire sale price was received and the possession of the property was handed over by the defendants, that the second defendant went abroad even in the month of March 2009 and as such, there was no chance or possibility for the second defendant signing in the alleged document, dated 29.06.2009, that the summons and notices sent to the https://www.mhc.tn.gov.in/judis 7/30 CRP(MD).No.234 & 330 of 2021 second defendant were all returned as he was in abroad at that time and that the plaintiff without taking summons and the notices to the correct address of the second defendant has managed to get orders for substituted service and on that basis, he got ex-parte judgment and orders against the second defendant.
7.The learned counsel would further submit that the plaintiff has filed the suit as if he was in possession of the suit property, that he has also obtained injunction orders in I.A.No.59 of 2010 for protecting his possession, that subsequently, he filed execution petition in E.P.No.33 of 2016 for delivery of possession fraudulently and that the same would only amount to abuse of process of Court. He would further submit that the plaintiff has not disclosed when and under what circumstances, he parted with the possession of the property to the defendant between the date of decree and the alleged registration of sale deed on 29.04.2003.
8.The learned counsel would further submit that the judgment and decree passed in O.S.No.26 of 2010 is not valid in the eye of law, since the trial Court without considering the pleadings and the evidence and without any discussion, has passed the same and that the trial Court has not insisted proof for document marked as Ex.A.1, as the genuineness of the same has been disputed by the first defendant.
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9.The learned counsel for the second defendant would contend that the judgment and decree passed by the trial Court itself is not legal, that the plaintiff has filed the execution petition in E.P.No.33 of 2016 for delivery fraudulently suppressing the factum of possession claimed in the suit and obtained the possession of the property and that he had taken possession of the different property, which was in possession of the defendants and totally unconnected with the property for which, the suit has been filed and decree has been obtained by him.
10.The learned counsel for the plaintiff would submit that the Executing Court has executed a sale deed dated 29.04.2013 and got it registered, which contains a specific clause that the plaintiff is entitled to take possession of the suit property by taking necessary proceedings through the Court, that in pursuance of the said sale deed, the plaintiff has laid the petition in E.P.No.33 of 2016, seeking delivery of the property, that though the first defendant has entered into appearance, he has not chosen to file the counter statement and the second defendant has not at all entered into appearance, both of them were set ex-parte and the Executing Court after considering the materials on record, has passed an order on 07.09.2019, directing the delivery of property, that since the defendants have obstructed, the plaintiff was constrained to file three applications, seeking orders for VAO help, Police aid and for break open the https://www.mhc.tn.gov.in/judis 9/30 CRP(MD).No.234 & 330 of 2021 locks of the suit property, that the Executing Court after allowing the above said three applications, has again passed an order for delivery on 06.11.2019 and that thereafter, the Court Ameen with the help of VAO and Police Aid had taken delivery of the property and handed over the same to the plaintiff and that consequently the delivery was recorded and the Execution Petition was ordered to be terminated.
11.He would further submit that the previous natham survey number of the suit property is 70/1 and subsequently, the same was changed to natham survey numbers 70/6 and 7, that since the Executing Court has permitted the plaintiff to mention the property shown in the decree, the plaintiff without out prejudice has agreed to remove the present survey numbers in the execution petition and that thereafter, the Village Administrative Officer has identified the property with reference to the revenue records and four boundaries, the Court ameen has taken possession of the suit property and that the defendants have not produced any evidence to show that the property in Survey No.70/1 is entirely different from the suit property situated in Survey Nos.70/6 and 7.
12.The plaintiff in his plaint has specifically stated that the possession of the suit property was given to him by the defendants in pursuance of the document, dated 29.06.2009 and that the plaintiff by alleging that he was https://www.mhc.tn.gov.in/judis 10/30 CRP(MD).No.234 & 330 of 2021 continuing to be in possession of the suit property, has filed the suit claiming the relief of specific performance of the document dated 29.06.2009. As already pointed out, the plaintiff by alleging that the defendants have been attempting to alienate or encumber the suit property and thereby attempting to disturb his possession of the suit property, has claimed temporary injunctions in I.A.Nos.58 and 59 of 2010 and got interim injunction orders.
13. It is pertinent to mention that the injunction order passed in I.A.No.59 of 2010 restraining the defendants and their men from interfering with the plaintiff's peaceful possession and enjoyment of the suit property was extended periodically and was in force till 15.02.2011, the date on which, the suit was decreed. As already pointed out, the plaintiff has filed the execution petition in E.P.No.85 of 2011, for execution and registration of sale deed and as per the settled procedure, the plaintiff has produced the draft sale deed and after approving the same, the Executing Court has executed the sale deed in favour of the plaintiff.
14.It is pertinent to mention that the sale deed contains a specific clause permitting the plaintiff to get possession of the suit property through necessary Court proceedings. It is also not in dispute that in pursuance of the said sale deed, he filed the impugned execution petition in E.P.No.33 of 2016 and obtained delivery of the suit property through Court. https://www.mhc.tn.gov.in/judis 11/30 CRP(MD).No.234 & 330 of 2021
15. This Court has sought for clarification as to how the plaintiff has taken the sale deed as if, he was not in possession and is entitled to take possession through Court proceedings, when he himself has admitted that he was in possession of the suit property on the date of suit and was enjoying the injunction order protecting the possession till the disposal of the suit.
16.The learned counsel for the plaintiff would attempt to give an explanation that during the pendency of the suit, the plaintiff was dispossessed by the defendants forcibly and that is why the plaintiff was constrained to lodge police complaints. But admittedly, the plaintiff has not filed the copies of the complaint alleged to have been given to the Police complaining his dispossession. But on the other hand, the wife of the first defendant has lodged a complaint to the Chairman of the Taluk Legal Service Authority, Thirumayam, complaining that the plaintiff along with his henchmen, on 15.02.2010 has trespassed into the suit property and after tieing herself and her husband in a Coconut tree and after throwing all the house-hold articles outside, locked the premises and that the complaints to the Police were no avail and that therefore, necessary action may be taken and their possession of the house property is to be restored.
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17.It is further evident from the records that after receiving the complaint, the Chairman of the Taluk Legal Service Authority has deputed three Advocates to visit the property and to ascertain the real facts, that when the Advocates had visited the property, they were allegedly prevented from entering into the suit property and were also criminally intimidated and that the complaint given by the Advocates was forwarded to the concerned Police and on that basis, FIR came to registered against the plaintiff and his family members, in Crime No.13 of 2010 for the offences punishable under Sections 147, 148, 294(b), 353 and 506(ii) IPC.
18.It is also not in dispute that subsequently the case was taken on file in C.C.No.99 of 2011 on the file of the District Munsif cum Judicial Magistrate, Thirumayam, and after trial, the learned Magistrate has passed the judgment on 13.05.2013, holding that the charges levelled against the plaintiff and others were not proved, acquitted them under Section 248(1) of Cr.P.C. Though not relevant for the present revision, this Court is constrained to say that the Chairman of the Taluk Legal Service Authority has exceeded his powers and jurisdiction in deputing a team of Advocates to visit the property in dispute and to ascertain the genuineness of the complaint lodged by a particular party.
19.Now coming to the present case, even assuming that the plaintiff was https://www.mhc.tn.gov.in/judis 13/30 CRP(MD).No.234 & 330 of 2021 dispossessed subsequent to the suit, admittedly, he has not taken any steps to amend the plaint alleging his dispossession and for seeking the relief of possession. Since the injunction order was in force, the plaintiff has also not initiated any proceedings to punish the defendants for violating the injunction orders. Moreover, it is not the case of the plaintiff that he had taken action under Section 6 of Specific Relief Act for getting back the possession of the suit property, assuming that the plaintiff was dispossessed during the pendency of the suit.
20.More importantly, the judgment and decree dated 15.02.2011 does not speak about possession. It is not the case of the plaintiff that in addition to the relief of specific performance, he was also granted with the relief of possession. Admittedly, the plaintiff has not obtained any decree for the recovery of possession of the suit property.
21.As rightly contended by the learned counsel for the second defendant, the plaintiff should have amended the plaint and claimed the relief of recovery of possession. Moreover, in the execution petition filed in E.P.No.85 of 2011, he has not whispered that he was dispossessed subsequently, more importantly, in the sale deed. It is not the case of the plaintiff that in the draft sale deed, he had mentioned that since he was dispossessed subsequently, he may be permitted to https://www.mhc.tn.gov.in/judis 14/30 CRP(MD).No.234 & 330 of 2021 get possession of the property, subsequently through necessary Court proceedings.
22.As already pointed out, in the sale deed dated 29.04.2013, it has been stated that the plaintiff is entitled to get possession of the suit property through necessary Court proceedings, but the reason for such entitlement was not at all incorporated. It is also not the case of the plaintiff that after passing of decree, but before filing of E.P.No.85 of 2016, he was dispossessed. As rightly pointed out by the learned counsel for the second defendant, even in the impugned Execution Petition No.33 of 2016, the plaintiff has nowhere whispered that since he was dispossessed subsequently, he was constrained to file the said execution petition for delivery.
23.Considering the above, it is very much clear that though the plaintiff has filed the suit specifically alleging that he was in possession of the suit property and obtained temporary injunction orders allegedly for protecting his possession and in the absence of any subsequent pleading that he was dispossessed, the very filing of the execution petition seeking delivery is not maintainable and that the orders therein were passed by the Executing Court without any jurisdiction.
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24.No doubt, in a suit for specific performance, the plaintiff claiming that the owner of the property with whom, he had entered into a sale agreement is in possession of the suit property, can very well claim the relief of specific performance alone and it is not necessary to claim the relief for possession, as the same is very much implicit in the relief of specific performance. But at the same time, in case, the possession is with a third party other than the owner of the property, then it is very much necessary for the plaintiff to seek relief of possession specifically, in addition to the relief of specific performance. But in the case on hand, as already pointed out, the plaintiff himself has specifically stated that he was in possession of the suit property on the date of suit and was enjoying the injunction order allegedly protecting the possession till the disposal of the suit.
25.It is pertinent to note that the plaintiff, from the date of filing of the suit till the date on which, he got delivery of the property through Court, has nowhere whispered that he was dispossessed and was out of possession. Hence, this Court has no other option, but to say that the very filing of the execution petition in E.No.33 of 2016, seeking delivery of the property is not maintainable and the orders passed therein by the Executing Court are not good in law and therefore, the proceedings are liable to be quashed. Consequently, the plaintiff is liable to restore the possession of the suit property to the defendants. https://www.mhc.tn.gov.in/judis 16/30 CRP(MD).No.234 & 330 of 2021
26.Now turning to the challenge made with respect to the judgment and decree dated 15.02.2011 passed by the trial Court, no doubt, the above challenge is beyond the relief claimed in the present revision, but this Court in exercise of its power of superintendence under Article 227 of the Constitution of India, can deal with the same.
27.Before entering into further discussion, it is necessary to refer the impugned judgment passed by the trial Court hereunder;
“P.W.1 present. Proof affidavit filed. Ex.A.1 marked. Suit claim proved. Suit decreed as prayed for with cost.”
28. Order 20 Rule 4 of CPC deals with the contents of judgment and we are concerned with Sub Rule 2 of Rule 4 and the same is extracted hereunder ;
“Judgment of other Courts shall contain a concise statement of the case, the points for determination, the decision thereon, and the reasons for such decision” Points for determination referred to in Rule 4(2) is nothing but issues, contemplated under Rules 1 and 3 of Order 14 of the Code of Civil Procedure. Generally the question of framing of issues would arise only after filing of the written statement. In case of non-filing of the written statement and the https://www.mhc.tn.gov.in/judis 17/30 CRP(MD).No.234 & 330 of 2021 defendant remaining ex-parte, then the question of framing issues does not arise as the Court is not in position to ascertain as to the material proposition of fact or law raised in the plaint, is denied by the other side.
29.Even in ex-parte cases, the judgment must contain the brief statement of the case of the plaintiff, the point for determination, the evidence adduced by the plaintiff in support of his claim and the reasonings of the Judge either for dismissing the suit or for decreeing the suit.
30.But in such cases, as contemplated under Rule 4(2) of Order 20, the Court while proceeding the case ex-parte, has to necessarily frame the points for determination. Moreover, every judgment should contain brief statement of the case of the parties, point for determination, the evidence adduced by the parties and the reasoning of the Judge for the decision arrived at by him.
31.No doubt, the ex-parte judgment and decree can be set aside at the instance of the defendant by filing necessary application under Order 9 Rule 13 CPC and on proving that the summons was not duly served or that he was prevented by any sufficient cause from appearing when the suit was called on for hearing. Moreover, the ex-parte judgment and decree can also be challenged by preferring a regular appeal under Section 96 of Code of Civil Procedure. At this https://www.mhc.tn.gov.in/judis 18/30 CRP(MD).No.234 & 330 of 2021 juncture, it is necessary to refer the judgment of Division Bench of this Court reported in 2011 (3) CTC 168;
M/S Meenakshisundaram Textiles vs M/S Valliammal Textiles Ltd “6. In terms of the above provisions, every judgment should contain a concise statement of the case, the points for determination, decision thereon and the reasons for such decision. A judgment which does not contain the bare minimum facts, the point for determination, the evidence adduced and the application of those facts and evidence for deciding the issue would not qualify it to be called as "judgment". The judgment should contain the brief summary of the facts, the evidence produced by the plaintiff in support of his claim and the reasoning of the learned Judge either for decreeing the suit or its dismissal. The Civil Procedure Code does not say that the Court is bound to grant a decree in case the defendant is absent. Judgment means cognitive process of reading a decision or drawing conclusion. Judgment is the basic requirement for a court and it means a decison or conclusion reached after consideration and deliberation. To put it differently, the basics of a judgment are to support by most cogent reasons that suggest themselves the final conclusion at which the Judge has conscientiously arrived.
....
21. From the above discussions, it is manifestly clear that even a judgment rendered ex parte and a decree is drawn on the basis of that judgment, it is appealable. In case that judgment and decree become final without there being any appeal, the decree is executable. In that sense, there is no difference between a https://www.mhc.tn.gov.in/judis 19/30 CRP(MD).No.234 & 330 of 2021 judgment and decree and an ex parte judgment and decree. In view of the above, in the event the defendant is set ex parte, the Court should be extra careful in such case and it should consider the pleadings and evidence and arrive at a finding as to whether the plaintiff has made out a case for a decree. In this context, it may also be mentioned that though a detailed judgment is required in a contested matter, an ex parte judgment should show the application of the minimum requirement of consideration of the pleadings, issues, evidence and the relief sought for rendering such judgment.”
32.In the case on hand, the trial Court has passed a cryptic unreasoned judgment. The impugned judgment does not contain the case of the plaintiff nor the evidence adduced by the plaintiff nor the point for determination nor any reasoning of the Court for granting the decree as sought for by the plaintiff.
33. Lord Macnaghten has observed;
“ Great caution should be exercised when suits are heard ex-parte. This principle is of universal application.”
34.Mere absence of the defendant does not by itself justify the presumption that the plaintiff's case is true. Even though the defendants is set ex- parte, the plaintiff is duty bound to prove his case. It is also the duty of the Court to see as to whether the plaintiff has proved his claim. Just because the defendant https://www.mhc.tn.gov.in/judis 20/30 CRP(MD).No.234 & 330 of 2021 is not in picture, it cannot be said that the plaintiff is entitled to get a decree automatically. It is pertinent to mention that in cases were the the defendant remains ex-parte, a heavy burden lies on the Court to consider as to whether the plaintiff has proved his claim prima facie and the Court is expected not to pass any decree in favour of the plaintiff except on proof by the plaintiff' that he is entitled to that decree.
35.The Hon'ble Supreme Court in C.N.Ramappa Gowda Vs. C.C.Chaqndergowda (Died) By Lrs and another reported in 2012 5 SCC 265, has held that it is settled position of law that assertion is no proof and hence, the burden lies on the plaintiff to prove his case even if there was no written statement to the contrary or any evidence of rebuttal.
36.Merely because there is no written statement nor any evidence of denial or rebuttal, it cannot be said that the plaintiff's case is said to have been proved and the Court in case of accepting the case of the plaintiff, must record the reasons, even if it is based on ex-parte evidence.
37.One another important aspect to be noted is that the trial Court has casually and mechanically allowed the plaintiff to mark the document dated 29.06.2009 i.e., unregistered sale deed alleged to have been executed by the https://www.mhc.tn.gov.in/judis 21/30 CRP(MD).No.234 & 330 of 2021 defendants as Ex.A.1. Moreover, Ex.A.1 is written in Rs.20 stamp paper and wherein it has been specifically stated that the plaintiff has paid a sum of Rs.4,75,000/- to the defendants and the same has been received by the defendants on the date of document and more importantly, it has also been stated that possession of property has been handed over to the plaintiff/purchaser on that day itself.
38.On considering the the above recitals of Ex.A.1, it can only be considered as a Possessory Contract of Sale and admittedly, the same is insufficiently stamped and unregistered document. No doubt, Section 36 of Indian Stamp Act contemplates that when a document is admitted and marked as exhibit, the same cannot be questioned subsequently. But I am afraid as to whether Section 36 of Stamp Act is applicable to the case on hand. Section 61 of the Stamp Act mandates that it is the duty of the Court to apply its mind about the admissibility and determine judicially.
39.In the case on hand admittedly, the defendants were not before the trial Court and hence, there was no chance or occasion for them to raise objections. In the absence of the defendants or even in the presence of defendants and on their failure to raise objections, it is the duty of the Court to decide about the admissibility of the documents and determine judicially about the admissibility https://www.mhc.tn.gov.in/judis 22/30 CRP(MD).No.234 & 330 of 2021 of the documents with respect to Stamp Act, as the provisions of the said Act are fiscal in nature and as such the same have to be considered strictly.
40.In a similar case, Andrapradesh High Court in Syed Yusuf Ali Vs. Mohammed Yusuf and others in CRP.No.4794 of 2015, dated 05.02.2016 has held as follows:
“15. Whereas, learned counsel for the respondents contented that when a document is admitted and marked as exhibit, it cannot be questioned except under Section 61 in view of interdict contained under Section 36 of Indian Stamp Act.
16. The agreement of sale is dated 26.06.2012 and it is undisputedly a possessory agreement of sale as contended by the plaintiff in para 2 of the plaint. However, delivery of possession is disputed in the written statement while contending that the 4th defendant is in possession and enjoyment of the property. On the face of Agreement of Sale, which is possessory contract of sale subsequent to amendment of Explanation to S.No. 47A, Schedule 1-
A of the Indian Stamp Act, which came into force in the year 1986. According to it, when a contract is followed by delivery of possession or evidenced by delivery of possession, stamp duty is to be paid as if it is a sale under S.No.47A of Schedule 1-A of the Indian Stamp Act. If the contention of the revision petitioner is accepted that the document is a possessory contract or agreement of sale, it is liable to be stamped under S.No. 47A of Schedule 1-A of the Stamp Act. But it was executed only on a stamp paper worth Rs.100/- and the nomenclature is sale deed for Rs.14,20,000/-, there https://www.mhc.tn.gov.in/judis 23/30 CRP(MD).No.234 & 330 of 2021 is a reference about delivery of possession in para 3 at page 3 of plaint. Even if it is treated as contract or agreement, it is admissible in evidence subject to payment of penalty and stamp duty as per the provisions of the Stamp Act. When the possessory contract or agreement is not sufficiently stamped it is inadmissible in evidence. No doubt, Section 36 of the Act created an interdict to raise an objection about admissibility of document, once admitted, except under Section 61, it is the duty of the Court to apply its mind about the admissibility and determine judicially but the Presiding Officer failed to look into the admissibility of the document for want of stamp duty and penalty. Putting signature on the stamp of marking on the document cannot be considered as admission of a document in evidence. When similar issue came up before Division Bench of this Court in W.P.No.29434 of 2013, dated 12.02.2014, placing reliance on judgment of Apex Court in R.V.E.Venkatachala Gounder v. Arulmigu Viswesaraswami and V.P.Temple and another and Ram Rattan (dead) by legal representatives v. Bajranlal and others drawn distinction between admitting in evidence and marking of document. Marking of a document is only for convenient reference, whereas, admitting document is taking the document as evidence after applying judicial mind. In view of principle laid down in R.V.E.Venkatachala Gounders case (11th supra) and Ram Rattan (dead) by LRs case (12th supra), the parties can raise objection as to admissibility of document and mere marking of document for convenience of reference would not preclude the parties to raise objection as to the admissibility. In R.V.E.VENKATACHALA Gounders case (11th supra) the Apex Court is of the view that merely because a document is marked as exhibit an objection as to https://www.mhc.tn.gov.in/judis 24/30 CRP(MD).No.234 & 330 of 2021 its admissibility is not excluded and is available to be raised even at a later stage or even in appeal or revision. Similarly in Ram Rattrans case (12th supra) the Supreme Court is of the view that when the document was tendered in evidence by the plaintiff while in witness box, objection has been raised by the defendants that the document was inadmissible in evidence as it was not only insufficiently stamped, but also for want of registration, it was obligatory upon the learned trial judge to apply his mind to the objection raised and decide the objection in accordance with law. Tendency sometimes is to postpone the decision to avoid interruption in the process of recording evidence and therefore, a very convenient device is resorted to, of marking the document in evidence subject to objection. However, would not mean that the objection as to admissibility on the ground that the instrument is not duly stamped is judicially decided; it is merely postponed. In such a situation at a later stage before the suit is finally disposed of it would none-the- less be obligatory upon the Court to decide the objection. The endorsement made by the learned trial Judge that objected, allowed subject to objection, clearly indicates that when the objection was raised, it was not judicially determined and the document was tentatively marked and in such a situation, Section 36 would not attract. Though facts are different, the law laid down by the Courts time and again is that to admit a document in evidence the Court has to apply its mind and decide the admissibility of document in evidence, judicially, mere marking for convenience of reference itself would not amount to admitting the document by applying judicial mind and it is not a judicial determination as to the admissibility of document in evidence. Section 35 created clear https://www.mhc.tn.gov.in/judis 25/30 CRP(MD).No.234 & 330 of 2021 embargo against acting upon insufficiently stamped document for any purpose. Any purpose would include collateral purpose. Even if both parties gave consent for marking insufficiently stamped document, it shall not be act upon, more particularly to enforce the right of parties under contract of sale, unless it falls under any clauses of proviso. The present document does not fall within any of the clauses of proviso to Section 35 of the Act, when document shall not be acted upon admitting the same by consent would mean that it is the duty of the Court to decide admissibility of document in evidence judicially.
17. In such situation, the bar under Section 36 of the Act would not come in the way of the parties to raise an objection as to the admissibility of the document. In the present case except affixing stamp giving numerical number to the possessory contract of sale as Ex.A.1, signing thereon by officer, nothing discloses about the judicial determination of admissibility of possessory contract of sale. The provisions of Stamp Act are fiscal in nature and such provisions have to be construed strictly, at the same time, it is the duty of the office to decide or determine judicially about admissibility of the document, irrespective of objection to avoid loss of revenue to the State. In the absence of any judicial determination about admissibility of the document, the same can be questioned at a later stage though stamp is affixed marking the document as exhibit.”
41. In the present case, the learned trial Judge has not at all considered the admissibility of the Ex.A.1 nor gave any findings with respect to the same. Since the document in question Ex.A.1, which is insufficiently stamped and unregistered, is in-admissible in evidence, the very marking of the said document https://www.mhc.tn.gov.in/judis 26/30 CRP(MD).No.234 & 330 of 2021 without determining its admissibility, is very much against the settled position of law.
42.Viewing from any angle, the judgment and decree dated 06.11.2019 passed by the trial Court in E.P.No.33 of 2016, is not good in law and the same is liable to be set aside. But at the same time, as already pointed out, the plaintiff has taken a sale deed from the Court by spending Rs.36,000/- for the stamp papers and also paid Rs.4,850/- towards registration fees and subsequently Rs.46,920/-was collected towards deficit stamp duty and Rs.7,385/- towards registration fees from him. Since the defendants are also at fault, this Court is of the view that the defendants must be mulcted with necessary terms.
43.As already pointed out, the plaintiff has challenged the orders passed in E.A.No.11 of 2020 in E.A.No.168 of 2019 in E.P.No.33 of 2016 and that since this Court has already decided to quash the entire proceedings in E.P.No.33 of 2016, the application filed under Order 21 Rule 99 CPC in E.A.168 of 2019 and other application in E.A.No.11 of 2020 and consequently, the present revision in CRP.(MD)No.330 of 2021 have become infructurous.
44.In the result, CRP(MD)No.330 of 2020 is dismissed as infructuous. CRP(MD)No.234 of 2021 is allowed and the proceedings in E.P.No.33 of 2016 shall stand quashed and the plaintiff/decree holder is directed to return back the https://www.mhc.tn.gov.in/judis 27/30 CRP(MD).No.234 & 330 of 2021 possession of the suit property to the defendants within a period of four weeks from the date of receipt of copy of this order.
45.The judgment and decree dated 15.02.2011 passed in O.S.No.26 of 2010 and the sale deed dated 29.04.2013 executed in favour of the plaintiff by the Executing Court will be set aside on depositing a sum of Rs.2,00,000/- (Rupees Two Lakhs) by the defendants before the trial Court within a period of of four weeks from the date of receipt of copy of this order, failing which the judgment and decree dated 15.02.2011, in O.S.No.26 of 2010 and the sale deed dated 29.04.2013 shall remain in force, without reference to this Court. On such deposit, the plaintiff is permitted to receive the said amount.
46.The trial Court, on fulfilment of the above conditions by the parties, shall set aside the judgment and the decree, permit the plaintiff to make necessary amendments in the plaint within 15 days and to permit the defendants to file written statement within 15 days thereafter; and then to proceed with the trial and dispose of the suit within three months thereafter. No costs. Consequently, connected Miscellaneous Petitions are closed.
06.12.2021
Index : Yes/No
Internet : Yes/No
das
https://www.mhc.tn.gov.in/judis
28/30
CRP(MD).No.234 & 330 of 2021
To
1. The Subordinate Judge, Pudukkottai.
2.The Section Officer,
Criminal Section,
Madurai Bench of Madras High Court,
Madurai.
https://www.mhc.tn.gov.in/judis
29/30
CRP(MD).No.234 & 330 of 2021
K.MURALI SHANKAR, J.
das
C.R.P.(MD).Nos.234 & 330 of 2021
and
CMP(MD)Nos.1404 and 1863 of 2021
06.12.2021
https://www.mhc.tn.gov.in/judis
30/30