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HIGH COURT OF JUDICATURE AT MADRAS
R. SUBBIAH, J.
P. Kumaran & Another
Versus
V. Ramaswami & Others
Application No. 7620 of 2014 in C.S.No. 121 of 2007
Decided on: 13-01-2015
Original Side Rules - Order 1 - Rules 7 & 8 – Civil Procedure Code - Order 9 - Rule 7 - Sale deed conveying plaint schedule property - Balance sale consideration – Claim of compensation – Applicants plaintiffs have filed suit for specific performance directing respondents defendants to execute sale deed conveying plaint schedule property to applicants plaintiffs by receiving balance sale consideration - Prayers made in plaint - To direct defendants to execute sale deed conveying plaint schedule property to plaintiffs by receiving balance sale consideration and in event of defendants failing to execute sale deed sale deed may be executed by this Court or by any Officer nominated or appointed by this Court and in event of decree for specific performance not being granted to direct defendants to pay a sum with interest from date of suit till payment and to pay a further sum of as damages for deceit and fraud – Held, Order 17 Rule 3 of Code of Civil Procedure, 1908 enables court when time has been granted to a party to produce evidence and he fails to do so or case of either default on part of party with regard to further progress in suit to either if parties are present proceed to decide suit forthwith or if parties are or any of them is absent proceed under Rule 2 Order 17 - Judges held that in such circumstances plaintiff appeared at hearing of suit and dismissal of suit could only be in circumstances under Order 17, Rule 3, Civil Procedure Code - In this case plaintiff’s counsel reported no instructions because application for transfer on ground that plaintiff cannot secure a fair trial was dismissed - Plaintiff was however in court - Apparently she ought to have been directed to proceed with case and plaintiff ought to have pleaded helplessness in such circumstances and District dismissed suit court bound by decision of Division Bench reported and in those circumstances court unable to agree with view taken - Court hold that plaintiff should be deemed to have appeared on date when suit was dismissed and if plaintiff did appear within meaning of ratio of AIR then disposal must be deemed to be one under Order 17 Rule 3 Civil Procedure Code - It is not disputed by counsel for petitioner that if disposal were to be held to be one under Order 17, Rule 3 Civil Procedure Code an appeal will lie - In appeal so filed by plaintiff Subordinate Judge directed retrial of case and this appears to be absolutely in interest of justice - Court do not think that there is any error of jurisdiction in so far as order complained of is concerned - Civil revision petition is dismissed - There will be no order as to costs - Application is dismissed
1. This application has been filed by the applicants under Order XIV Rule VIII of Original Side Rules and under Order 9 Rule 7 of CPC, praying to set aside the order dated 07.11.2014 passed by this Court in C.S.No.121 of 2007 dismissing the suit for default.
2. The applicants/plaintiffs have filed the suit for specific performance directing the respondents/defendants to execute the sale deed conveying the plaint schedule property to the applicants/plaintiffs by receiving the balance sale consideration. The prayers made in the plaint are as follows_
(a) to direct the defendants to execute the sale deed conveying the plaint schedule property to the plaintiffs by receiving the balance sale consideration of Rs.5,90,50,000/- (Rs.1,50,000/- per cent for 4.27 acres giving credit to Rs.50,00,000/- received as advance by the defendants) and in the event of the defendants failing to execute the sale deed, the sale deed may be executed by this Court or by any Officer nominated or appointed by this Court and in the event of the decree for specific performance not being granted, to direct the defendants to pay a sum of Rs.1,30,00,000/- (Rs.50,00,000/- paid as advance, Rs.10,00,000/- received by the 1st defendant on 01.01.2006, Rs.25,00,000/- received by the 1st defendant 29.04.2006 and Rs.45,00,000/- representing the cost of filling up the property with gravel) with 18% interest from the date of suit till payment and to pay a further sum of Rs.1,00,00,000/- as damages for deceit and fraud.
(b) for cost of the suit.
3. The 1st respondent/D1 had filed an application in A.No.3212 of 2008 under Order 7 Rule 11 of CPC seeking to reject the plaint. The said application was dismissed by the learned Single Judge by order dated 08.08.2014. Aggrieved over the same, the 1st respondent/D1 has filed an appeal in O.S.A.No.213 of 2014. The said OSA was also dismissed by the Division Bench of this Court by order dated 27.08.2014. While dismissing the said OSA, the Division Bench of this Court has fixed a time frame for expediting the trial of the suit. The relevant portion in the order of the Division Bench is as follows_
“19. In the result, this Original Side Appeal is dismissed, confirming the order dated 08.08.2014 made in A.No.3212 of 2008 in C.S.No.121 of 2007. No costs. Consequently, the connected miscellaneous Petition is closed.
20. After dismissal of the appeal, the learned Senior Counsel appearing for the appellant and the respective learned counsel appearing for the respondents prayed for expeditious disposal of the suit within a stipulated time frame.
21. In order to expedite trial, learned counsel for the parties agree as under:
(1) The Suit will be set down before the learned Judge dealing with the Civil Suits for settlement of issues on 10.09.2014.
(2) The parties will file their additional documents if any, within two weeks thereafter;
(3) The plaintiffs will file their affidavits of examination in chief within four weeks thereafter.
(4) The Additional Master will endeavour to take up the case expeditiously for concluding cross-examination of the plaintiffs' witnesses.
(5) On conclusion of the plaintiffs' evidence, the defendants will file their affidavits of examination in chief within four weeks thereafter and then the witnesses will be produced for cross-examination.
(6) On conclusion of trial, the matter will be posted before the Court of arguments.”
As per the Division Bench order, the suit ought to have been listed before the Court for settlement of issues on 10.09.2014; the additional documents, if any, ought to have been filed on or before 25.09.2014 i.e., within two weeks from the date of settlement of issues; proof affidavits of examination in chief ought to have been filed on or before 22.10.2014 i.e., within four weeks from the date of filing additional documents.
4. But, the suit was posted for framing issues only on 17.09.2014 and not on 10.09.2014. On 17.09.2014, when the matter came up before the learned Single Judge, the followin
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