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IN THE HIGH COURT OF JUDICATURE AT MADRAS
G.K. ILANTHIRAIYAN, J.
Brahmand Farm Lands Ltd., Rep by its Director, Chennai - Petitioner
Versus
K. Venkatesan - Respondent
C.R.P. (NPD) No. 3361 of 2017
Decided On : 16-03-2021
Civil Procedure Code, 1908 – Section 115, Order 20 Rule 4 – Agreement for sale – Specific Performance – Civil Revision Petitions is directed as against the fair and decreetal order passed by the learned Sub Judge, Kanchipuram in I.A. in O.S., thereby dismissing the petition to condone the delay of 793 days in filing the petition to set aside the ex-parte decree – Petitioner is the fourth defendant in the suit filed by the respondent for specific performance on the basis of the agreement for sale – After receipt of the summons, the petitioner engaged counsel and thereafter failed to file written statement – Therefore, he was set ex-parte and ex-parte decree was passed by the judgment and decree – Thereafter, the petitioner filed petition to set aside the ex-parte decree with the condone delay petition and the same was dismissed – Aggrieved by the same, the present Civil Revision Petition
Findings of Court:
Hon'ble Division Bench of this Court manifestly clear that even a judgment rendered ex-parte 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 ex-parte, 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 ex-parte 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 ex-parte judgment passed by the trial court is not on the line of provisions of Order 20 Rule 4 (1) & (2) of C.P.C., – Order passed by the learned Sub Judge, Kanchipuram in I.A. in O.S., is hereby set aside, subject to the conditions the petitioner shall deposit a sum of Rs.1,50,000/- within the period of one month from today before the Execution Court – Petitioner shall further deposit a sum of Rs.50,000/- as cost to be paid to the respondent in the Execution Court within a period of one month from today. – On such deposits, the respondent is permitted to withdraw the same and the sale deed registered vide document will stand set aside. – 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. – 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
Result: Civil Revision Petition Allowed
JUDGMENT :
(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.)
1. 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 ex-parte 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 ex-parte and ex-parte decree was passed by the judgment and decree dated 09.04.2009. Thereafter, the petitioner filed petition to set aside the ex-parte 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 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 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 survey 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 allotted to the share of the second defendant. In fact, the patta also transferred 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 on merits as far as possible. In support of his contention, he relied upon the following reported judgments:
(ii) 2010 (6) SCC 786 - Improvement Trust, Ludhiana Vs. Ujagar Singn and Ors.
4. Per
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