Back
IN THE HIGH COURT OF JUDICATURE AT MADRAS
A.P. SAHI, SUBRAMONIUM PRASAD, JJ.
B. Booma Devi & Ors. - Appellants
Versus
The District Collector, Kancheepuram District & Ors. - Respondents
Writ Appeal No.3829 of 2019
Decided On : 21-11-2019
Civil Procedure Code,1908 - Order 8 - Rule 10 - Claim of appellants - Construction on said lands - Properties in question being an extent of acres comprised acres comprised in Village originally belonged to one - It is said that a temple was constructed on said lands - Lands were sold one and after his death his son had taken over temple and lands - On death his son came into possession of properties - Stating that family members were not able to maintain the temple an Association temple Association was formed which took management of temple - One husband of first appellant has entered into an agreement of sale with petitioner Association - After death said his legal representatives appellants herein filed suit for specific performance of agreement sale suit was numbered as file of Subordinate Judge suit was decreed ex parte –Held, Court extracted hereinabove which has that effect would seem that it is purpose of the procedure contemplated CPC upon non-filing of written statement to expedite trial and not defendant of non-filing of written statement and proceeding try suit is clearly to expedite disposal of suit and not penal in nature wherein defendant has to be for non-filing of written statement by trying the suit in a mechanical manner by passing decree – Court wish to reiterate that case where written statement has not been filed court should be little more cautious in proceeding Order Rule CPC and before passing a judgment must ensure even set out in plaint are treated to have been admitted judgment and decree could not possibly be passed without requiring him prove pleaded in plaint court for recorded reasons fully satisfied that there no fact which needs be proved at instance of plaintiff in view of deemed admission defendant court can conveniently pass a judgment and decree against defendant who has not filed written statement - But if plaint itself indicates there are disputed questions of fact involved in case arising from plaint itself giving rise to two versions it would not be safe for court to record an ex parte judgment without directing plaintiff prove facts so as to settle factual controversy court from fully satisfying itself of factual and legal veracity of plaintiffs claim nay this feature litigation casts greater responsibility and onerous obligation on trial court as well as executing court to be fully satisfied that claim has been proved and substantiated to hilt by plaintiff Order CPC court is nevertheless duty-bound to diligently ensure that plaint stands proved and prayers therein are worthy of being granted - In view of above it can be said that appellants cannot derive advantage of ex parte decree - In absence of decree claim of appellants which is based solely on decree cannot be granted - It is well settled that an agreement to sell does not convey any valid title to agreement holder entire basis of claim which is only based on decree cannot be sustained - Appeal dismissed
JUDGMENT :
Subramonium Prasad, J.
Prayer : Appeal filed under Clause 15 of the Letter Patent against the order, dated 1/2/2019, passed in W.P.No.13455 of 2010.
Instant writ appeal is directed against the order, dated 1/2/2019, passed in W.P.No.13455 of 2010.
2. Facts in brief are as follows:-
(b) Lands were sold to one Duraisamy Pillai and after his death, his son Chinnathambi had taken over the temple and the lands. On the death of Chinnathambi, his son Subbaraya Pillai came into the possession of the properties.
(c) Stating that the family members were not able to maintain the temple, an Association, viz., Arulmighu Pidari Pachaiamman temple Association, was formed, which took over the management of the temple.
(d) One Pandian, husband of the first appellant has entered into an agreement of sale on 06.07.1992 with the petitioner Association. After the death of said Pandian, his legal representatives/appellants herein, filed a suit for specific performance of the agreement to sale. The suit was numbered as O.S.No.742 of 2001, on the file of the Subordinate Judge, Chengalpattu. The suit was decreed ex parte. It is stated that on the basis of ex parte decree, a sale deed was registered through Court, on 28/10/2004, the appellants have taken delivery of the property through Court, on 11/4/2005.
(e) It is stated that respondents herein had conducted a spot inspection to find out of the nature of the property. It is also stated that officials of the Alandur Municipality, are interfering with the possession of the appellants and also trying to put up a construction on the land.
(f) The appellants, therefore, filed Writ Petition No.13455 of 2010, praying for the issuance of a writ of mandamus, forbearing the respondents therein, their men, agents and servants, or any other person or persons claiming through them or authorised by them from in any manner interfering with the petitioner's peaceful possession and enjoyment of the property of an extent of 2.89 acres comprised in S.No.37 in Nanganallur Village, Kancheepuram District.
3. The learned Single Judge, vide, order, dated 1/2/2019, dismissed the writ petition, observing that the Subordinate Judge, Chengalpattu, could not have decreed the suit, without following the procedure as laid down in the Code of Civil Procedure 1908. The learned Single Judge held that the suit has been filed nine years after the agreement to sale was entered into and also the suit is barred by time. The learned Single Judge also held that the temple was a public temple, and under Section 34 of the Hindu Religious and Charitable Endowments Department Act, the property could not have been sold without the permission of the Commissioner. The learned Single Judge also found that there was a suppression of fact, on the part of the appellants, in as much as the appellants/writ petitioners had not disclosed the filing of an earlier writ petition, and also a subsequent filing of the present writ petition. This judgement is under challenge in the instant writ petition.
4. Heard Ms.AL.Ganthimathi, learned counsel for the appellants and Mr. S.R. Rajagopal, Additional Advocate General for the respondents.
5. Ms.AL.Ganthimathi, learned counsel for the appellants would state that there was no suppression on the part of the appellants. The appellants had disclosed the filing of the earlier writ petition in the instant writ petition. The learned counsel for the appellants point out that at paragraph 6 of the affidavit, filed in support of the writ petition, it has been disclosed that the appellants had filed W.P.No.7738 of 2009, praying for a mandamus, directing the respondents 1 and 2 to transfer patta in their favour for the property in question, w
An indispensable Tool for Legal Professionals, Endorsed by Various High Court and Judicial Officers
Please visit our Training & Support
Center or Contact Us for assistance
Scan Me!
India’s Legal research and Law Firm App, Download now!
For Daily Legal Updates, Join us on :
Back to top
