Allowed

C. Sathyasamuel v. a. Swaminathan

Madras HC12 Oct 2017AS/142/2017

Case brief

AI extract

What is this about?

The High Court allowed an appeal suit filed in the Madras High Court. The trial Court in the original suit C.M.P.No.6444 of 2017 passed a judgment mixing merits with the case where defendants were ex-parte, violating Order 9 CPC rules. The High Court set aside the trial court's judgment and remitted the suit.

What did the court decide?

Set aside the judgment and decree of the trial court in O.S.No.140 of 2013 and remitted the suit to the trial court. Court fees refunded.

C. Sathyasamuel Vs a. Swaminathan — Specific Performance | Madras HC (2017)

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IN THE HIGH COURT OF JUDICATURE AT MADRAS
Dated: 12.10.2017
CORAM
THE HONOURABLE MR.JUSTICE A.SELVAM
and
THE HONOURABLE MR.JUSTICE P.KALAIYARASAN
Appeal Suit No.142 of 2017
and
C.M.P.No.6444 of 2017
C.Sathyasamuel ... Appellant/Plaintiff
vs.
1.A.Swaminathan
2.S.Saroja
3.S.Rajan
4.P.Theresa
5.S.Victor Raj
6.S.Albert Raj
7.S.Arul Raj
8.S.Arokiya Raj
9.S.Sekar ... Respondents/Defendants
Appeal suit filed under Section 96 of C.P.C. against the
judgment and decree dated 26.10.2016, made in OS.No.140/13
passed by the Additional District Court, Kancheepuram at
Chengalpattu.
For Appellant :Mr.C.Jagadish
For Respondents : Mr.R.M.Murugan for
Mr.K.Narayanan

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JUDGMENT (Judgment of the Court was delivered by A.SELVAM,J.)

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This Appeal Suit has been directed against the judgment and decree dated 26.10.2016, passed in O.S.No.140 of 2013, by the Additional District Court, Kanchipuram District at Chengalpattu.

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2.The appellant herein, as plaintiff, has instituted O.S.No.140 of 2013, on the file of the trial Court praying to pass a decree of specific performance, in pursuance of the sale agreement, dated 26.11.2006, executed by the defendants in his

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https://hcservices.ecourts.gov.in/hcservices/

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favour and also praying to declare that Cancellation of Power of Attorney Deed, dated 28.01.2013, is null and void.

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3.In the plaint it is averred to the effect that the suit property is the absolute property of the defendants 2 to 9 and they executed a sale agreement dated 26.11.2006, whereby agreed to sell the suit property in favour of the plaintiff. Further, the defendants 2 to 9 have given a Power of Attorney Deed, dated 07.03.2013 in favour of the plaintiff. Since the defendants 2 to 9 have failed to execute a sale deed, after receipt of balance of sale consideration, in favour of the plaintiff and since they cancelled the Power of Attorney Deed, dated 07.03.2013, the present suit has been instituted for the reliefs sought therein.

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4.In the written statement filed on the side of the defendants 2 to 9, the material averments made in the plaint are denied and ultimately prayed to dismiss the suit.

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5.It is seen from the records that on the side of the plaintiff, evidence has been let in. But the defendants remained ex-parte. On the basis of available evidence on record on the side of the plaintiff, the trial Court has decreed the suit in part only in respect of the second relief sought in the plaint. The trial Court has dismissed the suit in respect of the relief of specific performance. Against the judgment and decree passed by the trial Court, the plaintiff, as appellant, has preferred the present appeal suit.

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6.The learned counsel appearing for the appellant/plaintiff has contended to the effect that for setting aside the ex-parte decree, on the side of the defendants an application under Order 9 Rule 13 of the Code of Civil Procedure, 1908, has been filed in I.A.No.549 of 2016 and the same is pending and further, the trial Court ought to have proceeded with the suit only under Order 9, since the defendants have remained ex-parte; but the trial Court has passed the judgment on merits and under such circumstances, the judgment and decree passed by the trial Court are liable to be set aside and the suit is liable to be remitted to the file of the trial Court.

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7.It is an admitted fact that on the side of the appellant/plaintiff, in the trial Court, both oral and documentary evidence have been let in. But the defendants have remained ex-parte. Since the defendants have remained ex-parte, the trial Court ought to have proceeded with the suit only on the basis of provision of Order 9 of the Code of Civil Procedure, 1908. But the trial Court has passed the judgment purely on merits.

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8.Further it is seen from the records that on the side of

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https://hcservices.ecourts.gov.in/hcservices/

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the defendants, an application under Order 9 Rule 13 of the Code of Civil Procedure, 1908 has been filed in I.A.No.549 of 2016 so as to set aside the ex-parte decree.

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9.Considering the aforesaid factual circumstances, this Court is of the view that the judgment and decree passed by the trial Court are liable to be set aside and O.S.No.140 of 2013 is liable to be remitted to the file of the trial Court.

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In fine, this Appeal Suit is allowed without costs. The judgment and decree passed in O.S.No.140 of 2013, by the trial Court, are set aside and O.S.No.140 of 2013 is remitted to the file of the trial Court. The Court fee paid on the appeal memorandum is ordered to be refunded forthwith to the appellant/plaintiff. Connected miscellaneous petition is closed.

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Sd/-
Assistant Registrar(CS III)
//True Copy//
Sub Assistant Registrar
msk
To
The Additional District Judge,
Kancheepuram at Chengalpattu
+1 cc to Mr.C.Jagadish Advocate sr 73601
Appeal Suit No.142 of 2017
ks(co)
aa16/12/2017

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C. Sathyasamuel v. a. Swaminathan

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C. Sathyasamuel v. a. Swaminathan

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