Dismissed

Padmavathy, v. D.Mariappan

Madras HC4 Jun 2013CRP/2953/2011

Case brief

AI extract

What is this about?

High Court dismissed a civil revision petition filed under Article 227 against orders dismissing interlocutory applications seeking to set aside an ex parte decree and condone delay. The court held the petitioners' conduct was an abuse of process and they lacked locus standi as they had sold the property.

What did the court decide?

Civil Revision Petition dismissed with no order as to costs.

Padmavathy, Vs D.Mariappan — Specific Performance | Madras HC (2013)

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IN THE HIGH COURT OF JUDICATURE AT MADRAS

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DATED : 04.06.2013

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CORAM

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THE HONOURABLE MR.JUSTICE S.TAMILVANAN

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C.R.P. (NPD) No.2953 of 2011

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Padmavathy

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Suresh

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Devi

... Petitioners

versus

D.Mariappan

... Respondent

Civil Revision Petition filed under Article 227 of the Constitution of India, against the order and decretal order, dated 02.03.2011 made in I.A.No.398 of 2010 in I.A.No.861 of 2009 in O.S.No.22 of 2007 on the file of the Principal District Judge, Tiruvallur.

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For Petitioners : Mr. N.Rajan For Respondent : Mr. N.Jayabalan

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ORDER

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This Civil Revision Petition has been filed under Article 227 of the Constitution of India, against the order and decretal order, dated 02.03.2011 made in I.A.No.398 of 2010 in I.A.No.861 of 2009 in O.S.No.22 of 2007 on the file of the Principal District Judge, Tiruvallur.

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It is seen that the suit was filed by the respondent herein, seeking specific performance of the contract, based on an alleged agreement, dated 25.08.2006. In support of his contention, the respondent / plaintiff had filed the alleged sale agreement, dated 25.08.2006 and a copy of the legal notice, dated 18.12.2006 with acknowledgement. The defendants were called absent and set exparte. Hence, the suit was decreed for specific performance of contract, by the Court below on 06.02.2008 in favour of the respondent / plaintiff, on payment of balance of consideration, as per the alleged agreement.

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The petitioners / defendants had filed petition under Order 9 Rule 13 CPC, to set aside the exparte decree, dated 06.02.2008, however, the application was dismissed for default. Then the petitioners / defendants filed I.A.No.861 of 2009, to restore the said Interlocutory Application filed in I.A.No.214 of 2009, that was dismissed for default on 17.09.2009. The petition filed under Order 9 Rule 9 r/w Section 151 CPC was also dismissed for default on 15.07.2000. Aggrieved by which, the petitioners herein filed an unnumbered Interlocutory Application in I.A.No.398 of 2010, under Section 5 of Limitation Act, to condone the delay of 12 days in filing the said petition, the same was also dismissed on 02.03.2011.

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Aggrieved by which, this Civil Revision has been preferred by the petitioners under Article 227 of the Constitution of India.

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It is seen that the suit was filed by the respondent herein, seeking specific performance of the contract. The respondent, as plaintiff has averred in the plaint that the revision petitioners / defendants had entered into an agreement with the respondent / plaintiff, to execute sale deed in respect of the plaint schedule of properties for sale consideration, a sum of Rs.30,34,000/- and received an advance of Rs.10,00,000/- on the date of the agreement, however, in spite of the legal notice, they failed to execute sale deed, hence, he filed the suit against the petitioners / defendants, seeking specific performance of the contract.

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In the written statement filed by the first petitioner (D1) adopted by the other petitioners (D2 and D3), they have stated in paragraph number 5 as follows :

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"5. This defendant submits the earlier agreement holder came and obtained the registered sale deed in his favour and she confirmed his possession and the sale transaction was over. This defendant states the sum of Rs.10 lakhs paid to her by plaintiff

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has been deposited into Bank safely, and she has no objection to repay the same, with interest at 12% p.a., to the plaintiff. "

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As per the averments of the written statement filed by the petitioners, the petitioners had already sold the property to some other person and ready to return the sum of Rs.10 lakhs with 12% interest p.a., to the plaintiff. However, the alleged subsequent purchaser has not been impleaded in the suit. In the written statement filed by the petitioners herein, they have not stated anything about the date of the earlier sale agreement between the petitioners and the alleged third party. The petitioners have also not stated anything about the name, address and other details of the earlier agreement holder and also the details about the sale deed executed by the petitioners. Though the petitioners have disputed the alleged sale agreement between the petitioners and the respondent / plaintiff, they have stated that the amount Rs.10 lakhs would be returned with interest at 12% p.a to the respondent / plaintiff, which is a self-contradictory version available in the written statement, since in the absence of agreement for sale, they need not repay the amount Rs.10 lakhs with interest. The petitioners, being the defendants have not contested the suit, hence, the same was decreed exparte. Though the petitioners have subsequently filed

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Interlocutory Application in I.A.No.214 of 2009 under Order 9 Rule 13 CPC, seeking an order to set aside the exparte decree, dated 06.02.2009, the same was also subsequently dismissed for default. Again they filed a petition in I.A.No.861 of 2009, under Order 9 Rule 9 CPC to set aside the exparte order of dismissal of I.A.No.214 of 2009 and to restore the earlier I.A. It is seen from the copy of the docket order passed by the Court below that there was no representation for the petitioners and the petitioners were also called absent, hence, I.A.No.861 of 2009 was also dismissed on 15.07.2010.

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Learned counsel appearing for the petitioners submitted that I.A.No.398 of 2010 in I.A.No.861 of 2009 in I.A.No.214 of 2009 in O.S.No.22 of 2007 was only to condone the delay of 12 days, hence, the Court below could have allowed the same, which cannot be accepted, in view of the aforesaid facts and circumstances.

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Learned counsel appearing for the respondent / plaintiff submitted that the petitioners / defendants have admitted the advance amount, Rs.10,00,000/- received by them and they have also averred that the said amount would be re-paid with interest at 12% p.a., hence, the petitioners are not entitled to take a self-contradictory

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defence against the agreement of sale, dated 25.08.2006. It is not in dispute that the petitioners / defendants had left the suit for exparte decree, subsequently, they filed petition under Order 9 Rule 13 CPC, that application was also left for dismissal due to their nonappearance. Then to restore that Interlocutory Application, they filed another unnumbered Interlocutory Application and also an application in I.A.No.398 of 2010 to condone the delay, which would be a clear abuse of process of Court and the law.

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The petitioners have filed I.A.No.214 of 2009 under Order 9 Rule 13 CPC to set aside the exparte decree, stating the reason as follows :

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"But for my illness and heart problem, which forced me to be an inpatient in the Hospital, we would have completed the trial. We have a good case on merits. A fair opportunity may be given to us in the interest of justice to undertake full trial and take the judgment as merits."

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Since the said Interlocutory Application was dismissed for default, they filed the Interlocutory Application in I.A.No.861 of 2009,

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wherein they have stated the reason as follows :

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My son suresh was fell sick on 15.09.2009 and he was admitted in Pavithra Hospital, Erukancheri for his treatment from 16th September onwards and was taking treatment. He was discharged recently. I could not contact my advocate to inform the above facts. As my son was in the hospital, I could not be present before this Hon'ble Court on 17.09.2009.

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As per the affidavit filed by the third petitioner, in I.A.No.398 of 2010 in I.A.No.861 of 2009 in I.A.No.214 of 2009 in O.S.No.22 of 2008, the petitioners have made the averments in paragraph number 3 as follows :

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"My brother suresh was fell sick on 15.09.2009 and he was admitted in Pavithra Hospital, Erukancheri for his treatment from 16th September onwards and was taking treatment. He was discharged recently. I could not contact my advocate to inform the above facts. As my brother was in the hospital, I could not be present before this Hon'ble Court on 17.09.2009. "

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As found by the Court below, the petitioners have stated the

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very same reason for both the petitions. The aforesaid reason assigned by the petitioners cannot be accepted as genuine and satisfactory reasons. As found by the Court below, the reasons assigned by the petitioners for their non-appearance has to be construed only as delay tactics and abuse of process of law and court. When there are three defendants, the petitioners cannot simply assign the reason that the second petitioner was not feeling well and he was hospitalized, hence, they could not appear before the Court below on various dates. One of the petitioners was admitted in the hospital could not be a reason for the exparte decree and dismissal of the Interlocutory Application and to condone the delay in filing another unnumbered application under Order IX Rule 9 CPC, seeking an order to restore the earlier application, filed under Order IX Rule 13 CPC to set aside the exparte decree. Even that factum of alleged ill health of one of the petitioners has not been supported by any acceptable evidence.

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The suit in O.S.No.22 of 2007 was filed by the respondent against the petitioners herein, seeking specific performance of the agreement, dated 25.08.2006 entered into between the petitioners and the respondent herein, whereby the petitioners / defendants had received an advance amount of Rs.10 lakhs. Admittedly, in the written

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statement, petitioners / defendants have specifically stated in paragraph number 5, as follows :

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"This defendant states the sum of Rs.10 lakhs paid to her by plaintiff has been deposited into Bank safely, and she has no objection to repay the same, with interest at 12% p.a to the plaintiff."

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Having admitted the fact that part of sale consideration relating to the sale agreement was received, as per the averments made in the written statement, it is not open to the petitioners / defendants to dispute the sale agreement alone. The suit was decreed exparte on 06.02.2008, since the petitioners / defendants failed to appear before the Court below, in spite of service of notice. However, they filed Interlocutory Application in I.A.No.214 of 2009, seeking an order to set aside exparte decree dated, 06.02.2008 under Order IX Rule 13 of the Code of Civil Procedure. In the accompanying affidavit, the petitioners have stated that the first petitioner herein was conducting the case on behalf of the other defendants also, however, she felt sick during 2007 and she was admitted in a private hospital, then she was discharged from the hospital, during August 2008. Hence, the suit was not contested by the petitioners / defendants before the Court below. The aforesaid contention raised by the

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petitioners was denied by the respondent in his counter, saying the averments made by the petitioners are false and incorrect. The said Interlocutory Application was also dismissed subsequently due to nonappearance of the petitioners.

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As the petitioners have not appeared before the Court, either in person or through counsel, the same was dismissed. However, the petitioners filed another Interlocutory Application in I.A.No.861 of 2009, seeking an order to set aside the exparte order of dismissal of I.A.No.214 of 2009, dated 17.09.2009 and to restore the application.

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In the accompanying affidavit, relating to I.A.No.861 of 2009, the first petitioner has stated that her son, Suresh, the second petitioner herein fell sick on 15.09.2009 and he was admitted in a private hospital and was taking treatment, hence, the petitioners could not contact their advocate. As per the copy of the docket order, it is seen that on 15.07.2010, there was no representation for the petitioners herein and the petitioners were also called absent, hence, I.A.No.861 of 2009 was dismissed for default. Subsequently, the petitioners filed I.A.No.398 of 2010 in I.A.No.861 of 2009 in I.A.No.214 of 2009 in the suit in O.S.No.22 of 2007. In the said Interlocutory Application, the third petitioner, Devi filed the accompanying affidavit, whereby she has

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stated that her brother Suresh, the second petitioner herein fell sick on 15.09.2009 and he was admitted in a private hospital for treatment, hence, the petitioners could not approach their counsel and therefore, there was a delay of 12 days in filing a restoration petition to restore I.A.No.861 of 2009, that was dismissed for default.

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In the aforesaid Interlocutory Application in I.A.No.398 of 2010, the respondent has filed counter, wherein he has stated that pursuant to the agreement for sale, dated 25.08.2006 entered into between the petitioners and the respondent, the respondent herein paid Rs.10 lakhs on the date of agreement as advance and part of sale consideration.

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Learned counsel appearing for the petitioner submitted that as per the agreement between the parties, sale consideration was fixed at Rs.30,34,000/-, out of which Rs.10 lakhs was paid as advance on the date of the agreement and as stated in the counter filed by the respondent, an additional sum of Rs.13,50,000/- was also paid. Since the petitioners failed to execute the sale deed, by getting the balance of sale consideration, the suit was filed by the respondent, seeking specific performance of the contract. Pursuant to the exparte decree,

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passed in favour of the respondent / plaintiff, Execution Petition in E.P.No.21 of 2008 was filed by the respondent as decree-holder. Since the petitioners, who were the respondents in the E.P remained absent and were set exparte, sale deed was also executed on 11.08.2010 in favour of the respondent, through the court below and the same was registered, as Document No.6522/2010, hence, nothing survives for adjudication.

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Learned counsel appearing for the respondent submitted that the petitioners had sold the property to one Ravikrishnan and the details have not been disclosed in the written statement filed by them on 20.06.2007. E.P.No.21 of 2008 was filed for the execution of the sale deed, pursuant to the decree passed in suit for specific performance, wherein E.A.Nos.43 and 44 of 2009 were filed by the said Ravikrishnan under Section 47 of the Code of Civil procedure, however, the Execution Applications were dismissed. A suit in O.S.No.65 of 2009 was also filed on the file of the Sub-Court, Ponneri by the decree-holder against the said Ravikrishnan and his vendors, who are the petitioners herein for declaring the sale deed executed by the petitioners herein in favour of him as null and void.

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A suit in O.S.No.208 of 2009 was also filed by the said Ravikrishnan, seeking for declaration of title and consequential relief,

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in respect of the suit property on the file of the District Court, Tiruvallur, now stands transferred to Sub-Court, Ponneri. The said Ravikrishnan filed C.R.P.No.3320 of 2010 on the the file of this Court and by order, dated 31.09.2010 in C.R.P.No.3320 of 2010, this Court directed the suit in O.S.No.65 of 2009 and the suit in O.S.No.208 of 2009 to be tried together and that the petitioners were also parties to the proceeding. The aforesaid facts are not in dispute in this revision.

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The Court below, by the impugned order has dismissed the application filed by the petitioners herein in I.A.No.398 of 2010 to condone the delay in filing a petition to set aside the exparte order of dismissal of I.A.No.861 of 2009. It was argued by the counsel for the petitioners that the said application was filed only to condone the delay in filing an application, seeking an order to restore another application, that was dismissed for default. In fact, the application in I.A.No.214 of 2009 was filed under Order IX Rule 13 CPC to set aside the exparte decree passed in O.S.No.22 of 2007, that was dismissed for default and that was dismissed for default.

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In this revision, the petitioners have stated that the Interlocutory Application filed in I.A.No.398 of 2010, seeking order to

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condone the delay of 12 days in filing the aforesaid Interlocutory Application could have been allowed by the Court below. They have further stated in the grounds that the petitioners took all legal grounds, however, the same were unfortunately dismissed for default on 15.07.2010 and other dates. The application in I.A.No.398 of 2010 was dismissed by the Court below on the ground that it was an abuse of process of the Court by the petitioners herein.

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Learned counsel appearing for the petitioner relied on a Division Bench decision of this Court in Meenakshisundaram Textiles vs. Valliammal Textiles Ltd ., reported in (2011) 7 MLJ 652 , wherein the Division Bench has held that Judgment should contain a concise statement of the case, the points for determination, decision thereon and the reasons for such decision. A Judgment which does not contain the bare minimum facts, the point for determination, the evidence adduced and the application of those facts and evidence for deciding the issue would not qualify it to be called as Judgment.

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In the aforesaid Judgment, this Court, while deciding the scope of Section 2 (9) of the Code of Civil Procedure, has held that a

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Judgment should contain the minimum requirement of consideration of the pleadings, evidence and the relief sought for rendering the Judgment. The aforesaid decision is nothing to do with the present civil revision petition, in view of the abuse of process of law and court by the petitioners herein.

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In this revision, the grievance of the petitioners is that the Interlocutory Application in I.A.No.398 of 2010 was filed under Section 5 of Limitation Act, seeking an order to condone the delay of 12 days, that was dismissed by the Court below, but that was not the first application filed by the petitioners herein. Even in the grounds the petitioners have not raised anything about the exparte decree passed by the Court below in the suit. On a perusal of the impugned order and the averments made in the affidavit relating to I.A.No.398 of 2010 and also considering the submissions made by both the learned counsel, it is clear that the decision cited by the petitioners is nothing to do with the impugned order.

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Learned counsel appearing for the petitioners also cited the decision in Commissioner of Income-Tax vs. Surendra Singh

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Pahwa , reported in AIR 1995 Allahabad 259 , wherein a learned single Judge of Allahabad High Court ( S.R.Singh, J ) has given a ruling while dealing with Order 9 Rule 6(a), 20 (4) (2) of the Code of Civil procedure that the Judgment must satisfy the requirements even if it is an exparte Judgment. There is no dispute with regard to the proposition of law that a judgment even, if it is an exparte Judgment, must contain the minimum requirement of pleadings of both the parties and the reason for the decision and for decreeing the suit.

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It is also not in dispute that there is possibility that an exparte decree may become final and further, the exparte decree is also a decree, that could be enforced until it is setaside, as per procedure known to law. Hence, an exparte judgment and decree cannot be crippled without disclosing the case of the plaintiff and the defence if any raised by the defendant and also the fact whether the plaintiff has prima facie established the suit claim. However, it is not open to the petitioners in the revision for the purpose of abusing the process of court of law. It is an admitted fact that the suit for specific performance was filed by the respondent herein in O.S.No.22 of 2007, that was decreed exparte, to set aside the exparte decree, the petitioners herein, being the defendants filed Interlocutory Application

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in I.A.No.214 of 2009, however, the same was dismissed for default, for which the petitioners cannot blame the respondent or the court below. Then the petitioners filed another application in I.A.No.861 of 2009 under Order 9 Rule 9 CPC, to set aside the exparte order of dismissal and to restore I.A.No.214 of 2009, however, the second Interlocutory Application in I.A.No.861 of 2009 was also dismissed for default. Again the petitioners filed an unnumbered Application under Order 9 Rule 9 CPC to restore the said I.A.No.861 of 2009, that was also dismissed for default, along with the application under Section 5 of Limitation Act to condone the delay of 12 days in I.A.No.398 of 2010. In case, if that Interlocutory Application is allowed, the unnumbered application could be decided and if it is allowed, I.A.No.861 of 2009 could be decided to restore the I.A.No.214 of 2009, that was dismissed for default. Only in I.A.No.214 of 2009, the Court below can go into the question of setting aside the exparte decree. Therefore, the delay of 12 days in filing the third Interlocutory Application, in I.A.No.398 of 2010 is exfacie, an abuse of process of law by the petitioners.

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The first petitioner had stated that due to her ill health, she was admitted in a private hospital, hence, she could not contest the

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matter and therefore, the exparte decree was passed on 06.02.2008. The averments of the petitioners is that the first petitioner was admitted in the hospital, which is not supported by any evidence and further, as there are three petitioners, the alleged ill health of the first petitioner cannot be a defence for the other two petitioners, leaving the suit for an exparte decree, subsequently, they filed Application under Order IX Rule 13 CPC. Even the said I.A.No.214 of 2009 was also dismissed for default, for which the first petitioner has alleged that her son, the second petitioner, Suresh was not feeling well and he was admitted in the hospital, hence, she and the other petitioners could not appear before the Court below. The reasons stated by the petitioners seeking an order to set aside the exparte order of dismissal and to restore the I.A.No.214 of 2009 is also not legally sustainable, as there was no legal grounds, even as stated by the petitioners herein.

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Then the petitioners filed I.A.No.861 of 2009 to restore the I.A.No.214 of 2009. The said I.A.No.861 of 2009 was also dismissed for default, for which the third petitioner has stated in her affidavit that her brother, the second petitioner herein was admitted in a private hospital, hence, the petitioners could not appear before the Court below. Then the I.A.No.398 of 2010 was filed to condone the delay of

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12 days in filing another unnumbered application to restore I.A.No.861 of 2009. The conduct of the petitioners would show that it is a clear abuse of process of the law and Court. There is no justification on the part of the petitioners for leaving the suit for exparte decree and filing a petition under Order 9 Rule 13 CPC and again leaving that petition for dismissal and again filing another petition under Order 9 Rule 9 CPC in I.A.No.861 of 2009, thereafter, again leaving it for dismissal due to their non-appearance and then filing another Interlocutory Application in I.A.No.398 of 2010 with a delay under Section 5 of Limitation Act to condone the delay.

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When there are three petitioners, the alleged ill health of one of the petitioners cannot be a proper reason for the non-appearance of other petitioners and even for the alleged ill health of the first petitioner, there is no supporting material. Even assuming for the sake of argument that the first petitioner was admitted in a private hospital, there is no justification for the petitioners 2 and 3 for their nonappearance and leaving the suit for exparte decree. Subsequently, they filed petition under Order 9 Rule 13 CPC to set aside the exparte decree, however, that was also dismissed due to non-appearance of the petitioners, for which they assigned a reason that the second

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petitioner was admitted in a private hospital, hence, the petitioners could not proceed with the I.A. No.214 of 2009 and again they filed I.A.No.861 of 2009 and that was also left for dismissal and then filed another unnumbered Interlocutory Application to restore I.A.No.861 of 2009 with the application in I.A.No.398 of 2010 to condone the delay of 12 days. The conduct of the petitioners are highly unreasonable, exfacie adopting delay tactics, which would be construed as an abuse of process of law and the court.

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It is also brought to the notice of this Court that the petitioners had already sold the property in favour of one Ravikrishnan and he had filed a petition under Section 47 CPC, that was dismissed. The respondent purchased the property, pursuant to the exparte decree obtained through the Court below. It is not in dispute that the respondent filed E.P.No.21 of 2008, got sale deed through Court of law and the respondent has also filed the suit in O.S.No.65 of 2009 against the said Ravikrishnan, which is pending before Sub-Court, Ponneri. The said Ravikrishnan also filed suit in O.S.No.208 of 2010, seeking declaration of title and other consequential relief. The aforesaid factum was not disputed by the petitioners and the respondent. Having sold the property to another person, the petitioners have no subsisting

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right over the suit property to maintain this Revision. Hence, it is crystal clear that the revision preferred by the petitioners, under Article 227 of the Constitution of India has no merits for allowing the same and that there is no error or infirmity in the impugned order, so as to warrant any interference by this Court and accordingly, the revision is liable to be dismissed.

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