A Court should not act solely on a Memo of the counsel conceding the substantive right of the party for passing non-adjudicatory decrees or appealable orders. No decree or order should be passed which violates mandatory provisions of law.

ORDER :

Prayer : Civil Revision Petition filed under Article 227 of the Constitution of India, praying to set aside the impugned judgment and decree dated 02.06.2015 passed by the Sub Court, Gudiyatham in O.S.No.81 of 2011.

The revision petitioner is the second defendant in O.S.No.81 of 2011 on the file of Sub-Court, Gudiyattam, Vellore District. He has moved this Court under Article 227 of the Constitution challenging what passes for a decree dated 02-06-2015, passed with the consent of the defendants declaring the title of the plaintiff to the suit property.

2. The facts that provide the backdrop for the present revision may be bullet pointed:

(i) The plaintiff/the first respondent herein had laid a suit in O.S.81/2012 for declaration of title allegedly on the strength of an unregistered sale deed. The second respondent herein was arrayed as the sole defendant to the suit. He is stated to be a close relative of the plaintiff.

(ii) Claiming that he is the owner of the suit property along with another, the revision petitioner herein had filed I.A.17/2012 to implead himself.

(iii) On 24.08.2012, I.A.17 of 2012 was allowed. On the procedural front, this necessitated an amendment to the cause-title of the plaint. However, the plaintiff/first respondent failed to carry out the same, with the result that the suit was dismissed for default on 27-11-2012.

(iv) Long after the dismissal of the suit, 767 days to be precise, the plaintiff filed I.A.31/2015 for restoration of the suit along with another application for condoning the delay of 767 days. While it is not exactly clear as to what happened to the application for condonation of delay, the fact remains that posting of I.A.31/2015 came to be advanced and was eventually allowed. Then, the suit itself was restored to file vide order dated 27.04.2015.

(v) At the time when the suit was restored, there was still only one defendant: the second respondent herein. The plaintiff carried out amendment to the cause title of the plaint, and the revision petitioner came to be arrayed as the second defendant.

(vi) Subsequently, on 29-04-2015 a Memo is alleged to have been filed by the counsel for the revision petitioner informing the Court that the second defendant/revision petitioner 'submits to the decree', recording which on 02- 06-2015, the Court decreed the suit.

(vii) After obtaining the said decree, the plaintiff/decree holder applied for transfer of patta, and for which purpose, he filed W.P.No.6934 of 2021. This was allowed by this Court on 18.03.2021 (Order by N. Seshasayee J), and in its order, it directed the revenue officials to issue notice to all the parties who are likely to be affected by the intended action. The Tahsildar accordingly issued a notice to the present revision petitioner, and it is upon receiving this notice did the revision petitioner learn about the passing of the decree. Challenging that the decree dated 02-06-2015 is vitiated by fraud, the seconddefendant has laid this revision.

3. Mr. Sharath Chandran, the learned counsel for the revision petitioner contended that the trial Court ought to have realised that the Memo was allegedly signed only by the counsel, and that it should not have skipped or short circuited the procedure contemplated under Order XXIII Rule 3 CPC, and should have satisfied itself that there was a conscious relinquishment on the part of the second defendant before proceeding to pass a decree. Even if this is complied with, still the decree declaring the title to the property would have to be passed based on an unregistered sale deed. This would mean that the court was called upon to pass a decree, based on a certain Memo of the defendants, which it could not pass legally, and the trial Court was unwittingly sucked into the trap well laid by the plaintiff to pass the decree. He added that as per his instructions, the counsel for the revision pet