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HIGH COURT OF MADRAS
Hon`ble Mr Justice ABDUL QUDDHOSE
B.DILLI – Appellant
Versus
S.KANDASAMY – Respondent
Specific Performance - Civil Procedure - Relevant Provisions - The court upheld the lower appellate court’s decision to remand the case for denovo trial, emphasizing the necessity for all parties to defend on merits despite prior exparte proceedings.
Fact of the Case:
The plaintiff sued for specific performance of a sale agreement, claiming that defendants failed to execute a sale deed despite receiving advance payment. The trial court ruled in favor of the plaintiff, but the lower appellate court remanded the case due to the defendants being set exparte.
Finding of the Court:
The appellate court reasoned that the defendants must be given the opportunity to contest the case on merits as they had not participated in the initial proceedings, which the higher court agreed with, supporting the remand.
Issues: Whether the lower appellate court’s decision to remand the case for denovo trial was justified given the circumstances of the case.
Ratio Decidendi: The court ruled that due process requires all parties to have a chance to present their case, particularly when the defendants denied the existence of the agreement at the appellate stage.
Final Decision: The appeal was dismissed, directing the trial court to resolve the suit within six months.
JUDGMENT
This appeal has been filed by the plaintiff in O.S.No.2 of 1999, renumbered as O.S.No.96 of 2009, aggrieved by the order of remand dated 16.10.2019 passed by the lower appellate court in A.S.No.60 of
2011.
2. The plaintiff in the suit is the appellant herein. The respondents
1 to 3 herein are the defendants 1 to 3 in the suit. The respondents 4 to 7 are the legal heirs of the deceased fourth defendant in the suit.
3. The suit was filed for specific performance of agreement of sale dated 20.10.1997. The plaintiff claims that they entered into an agreement of sale dated 20.10.1997 with the defendants 1 to 3 for purchase of the suit schedule by paying sale consideration of Rs.30,000/- as advance and was also ready and willing to pay the balance sale consideration as per the sale agreement.
4. According to the plaintiff, the defendants 1 to 3 failed to perform their part of the contract by executing the sale deed after receiving the balance sale consideration from the plaintiff. According to the plaintiff, since the defendants 1 to 3 failed to execute the sale deed, he was constrained to file a suit in O.S.No.2 of 1999, renumbered as O.S.No.96 of 2009, on the file of the Sub-Court, Tambaram, seeking for specific performance of agreement of sale. The trial Court, by its judgment and decree dated 27.08.2010 passed in O.S.No.96 of 2009, decreed the suit in favour of the plaintiff and granted the relief of specific performance. During the pendency of the suit, the plaintiff has deposited the balance sale consideration as per the sale agreement and this was was also recorded in the judgment and decree passed by the trial Court.
5. The defendants 1 to 3, vendors of the agreement of sale, were set exparte by the trial Court. The fourth defendant in the suit, who is the subsequent purchaser, had contested the suit on merits claiming that he was a bonafide purchaser having paid the valuable sale consideration. Aggrieved by the judgment and decree passed by the trial Court, the fourth defendant in the suit filed an appeal before the Additional District Court, Chengalpattu, in A.S.No.60 of 2011. The defendants 1 to 3 were arrayed as respondents 2 to 4 in the said first appeal. During the pendency of the appeal, the fourth defendant died and his legal heirs were brought on record as appellants. Under the impugned judgment and decree dated 16.10.2019, the lower appellate Court has remanded the matter back to the trial Court for denovo trial by giving the following reasons:-
(a) The defendants 1 to 3 in the suit, who are the vendors to the agreement of sale, were set exparte by the trial Court and they were not granted opportunity and they did not contest the case on merits.
(b) The defendants 1 to 3 are disputing the existence of the agreement of sale alleged to have been entered into with the plaintiff.
(c) The defendants 1 to 3 will have to be given an opportunity to defend the suit on merits.
6. Aggrieved by the findings of the lower appellate Court under the impugned judgment and decree dated 16.10.2019 passed in A.S.No.60 of
2011, the plaintiff in the suit has filed this appeal.
7. Heard Mr.Sunny Sheen, learned counsel, for Ms.V.Srimathy, learned counsel for the appellant; Mr.T.Thiyagarajan, learned counsel for the respondents 1 to 3; and Mr.K.V.Babu, learned counsel for the respondents 4 to 7.
8. The learned counsel for the appellant would submit that the lower appellant Court, without giving proper reasons for setting aside the judgment and decree of the trial Court, has remanded the matter back to the trial Court for denovo trial without any basis.
9. In support of his contentions, he drew the attention of this Court to a judgment of the Division Bench of this Court in the case of P.Shanmugham Vs. S.Sundaram and others [2005 – 3 LW – 366]; and a judgment of the Hon'ble Supreme Court in the case of Sirajudheen Vs.
Zeenath and others [2023 SCC Online SC 196].
10. Relying upon the aforesaid decisions, he would submit as follows:-
(a) The order
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