The High Court cannot entertain a revision petition under Article 227 when an alternative remedy of appeal is available, especially in cases involving factual disputes.

ORDER

The instant revision petition has been filed under Article 227 of Constitution of India challenging the judgment and decree dated 08.12.2022 made in O.S.No.248 of 2022 on the file of the Sub Court, Melur.

2.The first respondent in the revision petition has filed the above said suit for the relief of specific performance of a sale agreement dated 01.04.2022 said to have been executed by the revision petitioner and the second defendant.

3.As per plaint averments, the suit schedule properties belong to the first defendant namely R.Seemon and he had executed a general power of attorney in favour of the second defendant on 23.07.2008. Based upon the said power deed, the suit sale agreement was entered into by the second defendant in favour of the plaintiff on 01.04.2022 agreeing to alienate the property for a sale consideration of Rs.4,67,200/-. A sum of Rs.4,00,000/- was paid as advance and the period was fixed as three month for completing the sale agreement.

4.It is further averred in the plaint that since the defendants were not coming forward to execute the sale deed, a legal notice was issued on 11.08.2022 and there was no reply from the defendants. Hence, the suit came to be filed.

5.A perusal of the trial Court judgment reveals that both the defendants have remained exparte despite receipt of summons. The plaintiff was examined as PW1 and through him Exhibits A1 to A6 were marked. The trial Court after considering the oral and documentary evidence filed on the side of the plaintiff, arrived at a specific finding that the plaintiff was ready and willing to perform his part of contract and proceeded to decree the suit as prayed for.

6.The present revision petition has been filed by the first defendant in the suit under Article 227 of Constitution of India challenging the judgment and decree on the following grounds.

a)Summons were not served upon the first defendant. The second defendant though had received summon, there is no endorsement that he had received the same on behalf of the first defendant also. Merely because the second defendant had signed twice, it does not mean that the second defendant had received the summons, on behalf of the first defendant also.

b)Though the first defendant has executed a power deed in favour of the second defendant on 14.12.2006, the same was cancelled on 04.01.2017. Therefore, on the date when the second defendant entered into the suit sale agreement on 01.04.2022, the power was not subsisting. The second defendant had colluded with the plaintiff and had remained exparte.

c)There was a dispute between the first defendant and the second defendant and the second defendant has lodged a police complaint as against the first defendant on 25.03.2022. Based upon the said complaint, the first defendant was summoned by the police to appear on 28.03.2022. The matter was not resolved on the said date. The first defendant has left abroad on 31.03.2002. On the very next date, namely on 01.04.2022, the second defendant is said to have executed a sale agreement in favour of the plaintiff. Therefore, it is clear that a fraud has been played by the second defendant right from inception.

d)In view of the cancellation of power deed on 04.01.2017 and the police complaint lodged by the second defendant as against the first defendant on 25.03.2022, there is no possibility of continuing the power deed in favour of the second defendant.

e).It is further alleged that the plaintiff is none other than the brother-in-law of the second defendant. Therefore, it is clear that utilising his enmity with first defendant, in order to take revenge, the second defendant has executed this sale agreement in favour of his brother-in-law, namely the plaintiff. There is no proof whatsoever that the sale consideration was received by the second defendant. The entire exercise was carried out only to defraud the first defendant.

f).The second defendant and the plaintiff have colluded together and obtained a fraudulent decree from the Cou