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2018 Supreme(Mad) 2409

IN THE HIGH COURT OF JUDICATURE AT MADRAS
M.M. SUNDRESH, N. ANAND VENKATESH, JJ.
M/s. Harsha Estates & Ors. - Appellants
Vs.
Dr. P. Kalyana Chakravarthy & Ors. - Respondents
Original Side Appeal Nos. 104, 105, 110, 111, 122, 123 of 2017 & CMP Nos. 7343, 7344, 7517 & 8147 of 2017
Decided On : 23-07-2018

Advocates:
Advocate Appeared:
For the Appellants : Mr. Sriram Panchu, Mr. V. Chandraprabu, Mr. T. Shanmugananda Vijayakumar, Mr. P. Raja
For the Respondents: Mr. Vijay Narayanan, Mr. K. Chandrasekaran, Mr. P. Solomon Francis, Mr. Yashod Vardhan, Mr. K.S. Vaidyanathan

Headnote:

Civil Procedure Code - Order 2, Rule 2 – Section 22 - Indian Partnership Act, 1932 - Section 69 [2] - Specific Relief Act, 1963 - Suits for the relief of Specific Performance - Consequential Permanent Injunction - Agreements of sale - Plaintiffs also filed execution petitions for getting the sale deed executed in their favour - Subsequently, defendants filed an application to set aside the ex-parte decree with delay and those applications were allowed and the written statement filed by the defendants was also taken on file - Originally, defendants 1 and 2 were the only parties to suit as owners of the property. Subsequently, the property was alienated to Agencies which was impleaded as the 3rd defendant and there was further alienation in favour of Mahendra World City Developers who in turn transferred the property to their sister concern Mahendra Industrial Park. The plaintiff took steps to implead these subsequent purchasers also and notice was ordered to these entites – Held, deposit of balance sale consideration made by the plaintiffs shall also stand transferred to the file of the District Court - District Court on receipt of the records shall immediately re number the suits and applications and issue notice to the parties by fixing a date of hearing. The District Court shall not insist for payment of any Court fee and the Court fee already paid by the plaintiffs shall be taken to be the Court fees paid in the transferred suits - Suits were filed before Court and it has not reached even the stage of framing issues. Therefore, a direction is issued to the District Court to complete the proceedings within a period of six months from the date of the first hearing fixed by the District Court. All the parties to the proceedings are directed to co-operate and facilitate the completion of the proceedings within the time stipulated by this Court – Ordered Accordingly

JUDGMENT :

N. Anand Venkatesh, J.

These appeals arises against the common orders passed in applications filed in three suits wherein viz; C.S. Nos. 197 to 199/2007. The learned Single Judge has in effect revoked the leave granted to the plaintiff to file the suit and has also rejected the plaint in the suits filed by the plaintiffs by a common order dated 23.11.2016.

2. For the sake of convenience, the parties shall be addressed as plaintiffs and defendants in these appeals.

3. The plaintiffs filed three suits for the relief of Specific Performance and Consequential Permanent Injunction based on three independent agreements of sale dated 08.08.20016 entered into with the defendants. The property in question are vacant lands which are situated at Puduvoyal Village, Gummidipoondi Taluk. Initially, the suit was decreed ex-parte by a ex-parte judgment and decree dated 19.02.2009, and the plaintiffs pursuant to the ex-parte decree also deposited the balance sale consideration as directed by this Court. The plaintiffs also filed execution petitions for getting the sale deed executed in their favour. Subsequently, the defendants filed an application to set aside the ex-parte decree with delay and those applications were allowed and the written statement filed by the defendants was also taken on file. Originally, defendants 1 and 2 were the only parties to the suit as owners of the property. Subsequently, the property was alienated to Om Sakthi Agencies which was impleaded as the 3rd defendant and there was further alienation in favour of Mahendra World City Developers who in turn transferred the property to their sister concern Mahendra Industrial Park. The plaintiff took steps to implead these subsequent purchasers also and notice was ordered to these entites. In the meantime, the defendants in the suit filed applications for the revocation of leave in A. Nos. 3562 to 3564 of 2010 and for rejection of plaint in A. Nos. 4437 to 4439 of 2015. All these applications came to be allowed by a common order dated 23.11.2016.

4. The case of the defendants for seeking revocation of leave and rejection of plaint is as follows:

The suit property is admittedly situated beyond the territorial jurisdiction of this Court. The relief sought for in the plaint will tantamount to suit for land and therefore, the suit can be maintained only within jurisdiction of the appropriate Court where the property is situated. Both the reliefs claimed by the plaintiffs will fall within Clause 12 of the Letters Patent and therefore it is suit for land and necessarily the suit property should be situated within the territorial jurisdiction of this Court, failing which the suit itself is not maintainable. The first plaintiff Firm is not the registered Firm and therefore it cannot enforce the right arising from a contract in view of the bar contained under Section 69 [2] of the Indian Partnership Act, 1932.

5. The case of the plaintiffs in defending the applications for revocation of leave and rejection of plaint is as follows:

The plaintiffs have specifically pleaded that possession was already handed over at the time of entering into an agreement of sale and the only relief that was sought for in the plaint was to enforce the agreement of sale and therefore it will not fall within the meaning of ''suit for land'' under Clause 12 of the Letters Patent. Therefore, this Court will have the jurisdiction to entertain the suit and consequently, the leave should not be revoked. Insofar as the registration of partnership is concerned, the bar under Section 62 (2) of the Indian Partnership Act, 1932, will not operate since what was enforced by the plaintiffs was statutory right given to them by the Specific Relief Act, 1963. Even otherwise subsequent to the filing of the suit, the partnership Firm was registered on 09.04.2009, before the Registrar of Firms, and therefore, the plaintiffs are entitled to prosecute the suits.

6. SUBMISSIONS:

Mr. Sriram Panchu, learned Senior Counsel for












































































































































































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