C.M.A.No.1526 of 2016

IN THE HIGH COURT OF JUDICATURE AT MADRAS

DATED: 17.08.2023

CORAM:

THE HONOURABLE MR. JUSTICE K.RAJASEKAR

C.M.A.No.1526 of 2016

S. Hari Prasad

... Appellant / Plaintiff

Vs.

K. Paramasivam

... Respondent/Defendant

Civil Miscellaneous Appeal filed under Order 43 Rule 1 of

Civil Procedure Code, against the Fair and Decreetal Order dated

29.03.2016 made in I.A.No.1936 of 2015 in O.S.No.243 of 2013 on the file

of the I Additional District and Sessions Court, Tiruppur.

For Appellant

: Mr. T. M. Hariharan

For Respondent

: Mr. R. Prabakar

For NSS. Advocacy LLP

JUDGMENT

The appellant is the plaintiff filed this Civil Miscellaneous Appeal,

challenging the fair and decreetal order passed in I.A.No.1936 of 2015 in

O.S.No.243 of 2013 on the file of the I Additional District and Sessions

1/8

https://www.mhc.tn.gov.in/judis

C.M.A.No.1526 of 2016

Judge, Tirupur, whereby, the Trial Court has rejected the plaint filed by the

appellant herein as per the provisions of Order VII Rule 11(a) of the Code of

Civil Procedure.

2. The parties are referred to hereunder according to status and

ranking before the trial Court.

3. The brief facts of the plaintiff's case is as follows:

The plaintiff and the defendant have entered into an

Agreement for Sale, dated 20.08.2013, whereby, the defendant agreed to sell

the suit property for a total Sale Consideration of Rs.15,00,000/- and on the

date of agreement, the plaintiff paid Rs.14,50,000/- as advance sale

consideration. It is also agreed between them that the balance sale

consideration shall be payable within a period of 45 days and that the sale

shall be concluded. Subsequently, even though the plaintiff was ready and

willing to perform his part contract by paying the balance sale

consideration, the defendant has not come forward to sell the property and

perform his part of the contract, which forced the plaintiff to file the suit for

Specific Performance of contract.

2/8

https://www.mhc.tn.gov.in/judis

C.M.A.No.1526 of 2016

4. The case of the defendant in brief is as follows:

The plaintiff is a money lender and the defendant has

borrowed a sum of Rs.1,00,000/- from the plaintiff and the defendant was

asked to subscribe his signatures in various blank papers and stamp papers,

as security for loan. By fabricating those documents, the Agreement of Sale

has been preferred and the suit has been filed as if, the plaintiff has entered

into Agreement of Sale.

5. There is a violation of Section 17(g) and 49 of the

Registration Act, which mandates documents including the Agreement of

Sale shall compulsorily to be registered and non-compliance makes out the

case that there is no cause of action, hence the plaint is to be rejected.

6. After hearing both sides, the Trial Court has taken a view that

there is no cause of action and the plaint is liable to be rejected and allowed

the Interlocutory Application, consequently, separate Judgment and Decree

is passed in the suit.

3/8

https://www.mhc.tn.gov.in/judis

C.M.A.No.1526 of 2016

7. Aggrieved over the rejection of plaint, the plaintiff herein has

filed this Civil Miscellaneous Appeal, challenging the order passed in

Interlocutory Application in the suit, thereby, the trial Court has rejected the

plaint. The Court has raised an issue of maintainability of appeal, since, the

appeal filed under Order 43 of the Code of Civil Procedure Code is invoked

instead of filing regular appeal provided under Section 96 r/w Order 4(1) of

the Code of Civil Procedure.

8. I have heard both sides.

9. Order VII Rule 11 of the Code of Civil Procedure deals with

rejection of plaint. Once the plaint is rejected, then, obviously nothing is

pending before the Court. That order is formal expression of an

adjudication, which so far as regards the Court expressing it, consecutively

determines the rights of the parties. In fact, Section 2(2) of the