Madras High Court
Brahmand Farm Lands Ltd vs K.Venkatesan on 16 March, 2021
Author: G.K.Ilanthiraiyan
Bench: G.K.Ilanthiraiyan
C.R.P.(NPD)No.3361 of 2017
IN THE HIGH COURT OF JUDICATURE AT MADRAS
RESERVED ON : 02.03.2021
PRONOUNCED ON : 16.03.2021
CORAM
THE HON'BLE Mr. JUSTICE G.K.ILANTHIRAIYAN
C.R.P.(NPD)No.3361 of 2017
Brahmand Farm Lands Ltd.,
Rep by its Director,
V.K.Somakumar,
S/o.M.N.Padmanaban Nair,
Having office at B6,
Garden of Hearts,
Manapakkam,
Chennai - 16. ... Petitioner
Vs.
K.Venkatesan ... Respondent
Prayer :- Civil Revision Petitions are filed under Section 115 of CPC., to
set aside the order and decreetal order passed in I.A.No.470 of 2012 in
O.S.No.147 of 2008 on the file of the Sub Court, Kanchipuram dated
17.10.2016 and allow the CRP.
For Petitioner : Mr.A.L.Somayaji, Senior Counsel
For S.Prabhu
For Respondent : Mr.D.Baskar
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C.R.P.(NPD)No.3361 of 2017
ORDER
This Civil Revision Petitions is directed as against the fair and decreetal order dated 17.10.2016 passed by the learned Sub Judge, Kanchipuram in I.A.No.470 of 2012 in O.S.No.147 of 2008, thereby dismissing the petition to condone the delay of 793 days in filing the petition to set aside the exparte decree dated 09.05.2009.
2. The petitioner is the fourth defendant in the suit filed by the respondent for specific performance on the basis of the agreement for sale dated 16.05.2007. After receipt of the summons, the petitioner engaged counsel and thereafter failed to file written statement. Therefore, he was set exparte and exparte decree was passed by the judgment and decree dated 09.04.2009. Thereafter, the petitioner filed petition to set aside the exparte decree with the condone delay petition and the same was dismissed. Aggrieved by the same, the present Civil Revision Petition.
3. The learned Senior Counsel appearing for the petitioner would submit that though the petitioner engaged counsel before the trial Court, he Page 2 of 18 https://www.mhc.tn.gov.in/judis/ C.R.P.(NPD)No.3361 of 2017 could not be able to file his written statement for the reason that there was an Advocate boycott with regard to bifurcation of Chengalpattu and Kancheepuram District. Therefore, no counsel was allowed to enter into the Court premises as such the petitioner did not file his written statement. He has got very good case to defend the suit and the reasons stated in the affidavit filed in support of the condone delay petition is bonafide one. He further submitted that the suit was filed as against eight persons and all the main contesting persons were conveniently absent except the petitioner herein. The respondent has entered into an agreement for sale with the second defendant in the suit who had no authority to enter into the agreement for sale in respect of the suit property. Therefore, the agreement for sale itself void, ab-initio and the suit is liable to be dismissed.
3.1. He further submitted that the suit property belonged to first defendant by virtue of registered sale deed dated 12.06.1975 purchased from one Sarada ammal. The second and third defendants are son and grandson of the first defendant. The second and third defendants executed Power of Attorney in favour of the first defendant in respect of the suit Page 3 of 18 https://www.mhc.tn.gov.in/judis/ C.R.P.(NPD)No.3361 of 2017 property. The first defendant purchased the property ad measuring 2 acre comprised in survey No.756/1 and ad measuring 1.70 acres and 30 cents comprised in survey No.1756/2 situated in Singadivakkam Village, Kanchipuram District. The land in survey No.756/1 was sub-dived as survery No.756/1A2 to an extent of 1.84 acre and separate patta was granted in favour of the second defendant in patta No.173. The first defendant and the second defendant have partitioned their properties and the suit property was alloted to the share of the second defendant. In fact, the patta also transfered in the name of the second defendant.
3.2. On the strength of the title in respect of the suit property, the second and third defendant entered in to an agreement for sale with the petitioner on 10.06.2006 and also executed power of attorney in favour of the petitioner vide registered document No.402/2006 dated 11.06.2006. On the strength of the power of attorney the petitioner sold out the suit property in favour of the fifth defendant. Therefore, the petitioner has got very good case to defend the suit filed by the respondent herein. He further submitted that the suit which was filed for specific performance has to be adjudicated Page 4 of 18 https://www.mhc.tn.gov.in/judis/ C.R.P.(NPD)No.3361 of 2017 on merits as far as possible. In support of his contention, he relied upon the following reported judgments :-
(i) 2019 (7) SCC 359 - Rabin Thapa Vs. Rohit Dora
(ii) 2010 (6) SCC 786 - Improvement Trust, Ludhiana Vs. Ujagar Singn and ors.
4. Per contra, the learned counsel appearing for the respondent submitted that the reasons stated in the affidavit filed in support of the condone delay petition are not sufficient. After entering appearance through his counsel, he wantonly and deliberately left the suit as exparte and after very long time, he filed petition to set aside the exparte decree. When the respondent filed execution petition in E.P.No. 78 of 2009, the petitioner came forward with the present petition to set aside the exparte decree. In fact, as per the decree, a sale deed also executed by the trial Court vide document No.1278 of 2010 dated 19.03.2010, in favour of the respondent and the execution petition is posted for delivery of possession. Therefore, nothing survive in the present revision petition and prayed for dismissal of the civil revision petition.
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5. Heard, Mr.A.L.Somayaji, learned Senior Counsel appearing for the petitioner and Mr.D.Baskar, learned counsel appearing for the respondent.
6. The petitioner is the fourth defendant in the suit filed by the respondent herein for specific performance. The petitioner herein engaged his counsel to appear before the trial Court. Due to Advocates' boycott, no one was appeared on behalf of the petitioner and the petitioner was set exparte. Thereafter the exparte decree was passed on 09.04.2009. In pursuant to the said decree, the respondent filed execution petition and the sale was executed in favour the respondent herein in respect of the suit property. At that juncture, the petitioner filed this petition to set aside the exparte decree with the delay of 793 days.
7. On perusal of judgment dated 09.04.2009, passed in O.S.No.147 of 2008, the trial Court held as follows :-
"JUDGMENT Suit for specific performance of contract directing the defendants to execute and register Page 6 of 18 https://www.mhc.tn.gov.in/judis/ C.R.P.(NPD)No.3361 of 2017 the sale deed in favour of the plaintiff in pursuance of the sale agreement dated 16.05.2007 after receiving the balance sale consideration of Rs.10,000/- within 15 days from the date of judgment, failing which the same may be done through this Court and for costs.
Plaintiff present and filed proof affidavit. Ex.A.1 to Ex.A.15 marked claim proved. Suit is decreed as prayed for with costs. Plaintiff is directed to pay the calculated sale consideration within 15 days.
Pronounced by me in open Court, this the 9th day of April, 2009."
The learned trial judge did not even frame any issue. Though the defendants were set exparte, the Court has to pass judgment and it must be available to the extent to indicate that the Court has applied its mind to the pleadings, relief claimed thereunder, the evidence and the conclusion arrived at by the Court.
8. Admittedly the trial Court neither framed any issues and nor considered the same. The trial Court has only rendered its findings. Page 7 of 18 https://www.mhc.tn.gov.in/judis/ C.R.P.(NPD)No.3361 of 2017 Therefore the judgment itself is not on the line of provision under Order 20 Rule 5 of C.P.C. It is relevant to rely upon the judgment reported in 2011 (3) CTC 168 in the case of Meenakshisundaram Textiles rep by it Managing Director Vs. Valliammal Textiles ltd., as follows :-
"5. We have heard the respective learned counsel on either side on the above question. Section 2(9) of the Code of Civil Procedure defines a "judgment" as meaning, the statement given by the judge on the grounds of a decree or order. In this context, Order XX Rules 4 (1) & (2) are also referable, which read as under:-
4. Judgment of Small Cause Courts.--(1) Judgments of a Court of Small Causes need not contain more than the points for determination and the decision thereon.
(2) Judgments of other Courts.--Judgments of other Courts shall contain a concise statement of the case, the points for determination, the decision thereon, and the reasons for such decision."
Order XX Rule 4(1) relates to the judgment of a Court of Small Causes. Inasmuch as the said Page 8 of 18 https://www.mhc.tn.gov.in/judis/ C.R.P.(NPD)No.3361 of 2017 judgment does not require more than the points for determination and that the decision thereon, a judgment of a Court of Small Causes shall not fall under Section 2(9) of the Code of Civil Procedure. Insofar as the judgment of other Court is concerned, in terms of Order XX Rule 4(2), it shall contain a concise statement of the case, the points for determination, the decision thereon, and the reasons for such decision and therefore it shall fall under Section 2(9) of the Code of Civil Procedure and in that sense, all the ingredients contained in Order XX Rule 4(2) must be available in that judgment. This is more so in view of the provisions of Order XX Rule 5 relating to the duty of the Court to state its reasons on each issue. That Rule reads as under:-
"5.Court to state its decision on each issue.--In suits in which issues have been framed, the Court shall state its finding or decision, with the reasons therefor, upon each separate issue, unless the finding upon any one or more of the issues is sufficient for the decision of the suit."Page 9 of 18
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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.
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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 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."
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9. The Hon'ble Division Bench of this Court manifestly clear that even a judgment rendered exparte and a decree is drawn on the basis of that judgment, it become final and it is executable. In the event the defendants were set exparte, the Court should be extra careful and should consider the pleadings, evidence and arrive at a finding as to whether the plaintiff has made out the case for a decree. The exparte judgment should show the application of minimum requirement of consideration of the pleadings, issues, evidence and the relief sought for rendering such judgment. The above case is squarely applicable to the case on hand. In view of the above, the exparte judgment passed by the trial court is not on the line of provisions of Order 20 Rule 4 (1) & (2) of C.P.C.,
10. Insofar as the delay is concerned, it is relevant to rely upon the judgment reported in 2018 (15) SCC 127 in the case of Ummer Vs. Pottengal Subida and ors as follows :-
"17. In the light of the aforementioned undisputed facts, in our opinion, the High Court should have taken liberal view in the matter and held the cause shown by the appellant as Page 12 of 18 https://www.mhc.tn.gov.in/judis/ C.R.P.(NPD)No.3361 of 2017 "sufficient cause" within the meaning of Section 5 of the Limitation Act and accordingly should have condoned the delay in filing the appeal. 18. One cannot now dispute the legal proposition that the earlier view of this Court that the appellant was required to explain the delay of each day till the date of filing the appeal has since been diluted by the later decisions of this Court and is, therefore, held as no longer good law."
Accordingly, the cause shown by the parties are sufficient cause within the meaning of Section 5 of the Limitation Act and accordingly, should have condoned the delay in filing the petition. Further held that the parties required to explain the delay of each day as no longer good law. In the case on hand, the petitioner stated the reasons that due to the advocate boycott, he could not be able to file his written statement in the suit. Further he has got good case to defend the suit.
11. Insofar as the exparte decree is concerned in the suit for specific performance the litigation not to be terminated by default and the adjudication to be done as far as possible. In this regard, the learned Senior Page 13 of 18 https://www.mhc.tn.gov.in/judis/ C.R.P.(NPD)No.3361 of 2017 Counsel appearing for the petitioner relied upon the judgment reported in 2019 (7) SCC 359 in the case of Robin Thapa Vs. Rohit Dora, in which the Hon'ble Supreme Court of India held as follows :-
"8. Ordinarily, a litigation is based on adjudication on the merits of the contentions of the parties. Litigation should not be terminated by default, either of the plaintiff or the defendant. The cause of justice does require that as far as possible, adjudication be done on merits. ..........
13. The matter arises from a suit for specific performance. It may be true that there is a case for the respondent that the appellant has actually let out the building on rent. The appellant’s case is that this is the appellant’s residential house and the matter is a loan transaction. Specific relief is undoubtedly a discretionary relief. Appellant has submitted that the appellant is prepared to deposit the entire amount spent by the respondent towards getting sale deed executed. We would think that the interest of justice demands that subject to putting the appellant on terms, an opportunity should be given to the appellant to contest the case and the Page 14 of 18 https://www.mhc.tn.gov.in/judis/ C.R.P.(NPD)No.3361 of 2017 case must be directed to be disposed of within the time limit."
In the case on hand, the respondent filed suit for specific performance and the petitioner was set exparte. As stated supra, the judgment itself is not a judgment in the eye of law. Further the suit for specific performance cannot be allowed by default of the defendant and it should be adjudicated on merits.
12. In view of the above discussions, the order dated 17.10.2016 passed by the learned Sub Judge, Kanchipuram in I.A.No.470 of 2012 in O.S.No.147 of 2008, is hereby set aside, subject to the following conditions:-
i) the petitioner shall deposit a sum of Rs.1,50,000/- (Rupees one lakh fifty thousand only) within the period of one month from today before the Execution Court (Total sale consideration paid by the respondent)
ii) the petitioner shall further deposit a sum of Rs.50,000/- (Rupees fifty thousand only) as cost to be paid to the respondent in the Execution Court within a period of one month from today.Page 15 of 18
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iii) On such deposits, the respondent is permitted to withdraw the same and the sale deed dated 19.03.2010 registered vide document No.1278 of 2010 will stand set aside.
iv) if the petitioner fails to comply the above conditions within the stipulated period, the present Civil Revision Petition stands dismissed and the impugned order in this revision petition shall stand confirmed.
v) If the petitioner complied with the above conditions, the trial Court is directed to dispose the suit within a period of six months after compliance of the above said conditions by the petitioner.
13. With the above directions, this Civil Revision Petition is allowed. There shall be no order as to costs.
16.03.2021 Internet : Yes Index : Yes/No Speaking order/Non-speaking order rts Page 16 of 18 https://www.mhc.tn.gov.in/judis/ C.R.P.(NPD)No.3361 of 2017 To
1. The Sub Judge, Kanchipuram.
2. The Section Officer, V.R. Section, Madras High Court, Chennai.
Page 17 of 18 https://www.mhc.tn.gov.in/judis/ C.R.P.(NPD)No.3361 of 2017 G.K.ILANTHIRAIYAN, J.
rts Pre delivery order in C.R.P.(NPD)No.3361 of 2017 16.03.2021 Page 18 of 18 https://www.mhc.tn.gov.in/judis/