Allowed

Deivasikamani v. Saraswathi

Madras HC19 Oct 2023CRP/777/2021

Case brief

AI extract

What is this about?

A High Court Bench disposed of a Civil Revision Petition challenging an appellate order that allowed a respondent to set aside an ex-parte decree. The Court confirmed the impugned order issued by the Principal District Judge but allowed the petition to set aside the ex-parte decree on condition of depositing costs to an orphanage. It directed the trial court to dispose of the pending suit expediti

What did the court decide?

Confirmation of the impugned appellate order allowing the IA No. 78 of 2016 on condition that the respondent deposits Rs. 25,000 to a children's orphanage within two weeks; otherwise, the application

Deivasikamani Vs Saraswathi — Specific Performance | Madras HC (2023)

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C.R.P(PD)No.777 of 2021

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IN THE HIGH COURT OF JUDICATURE AT MADRAS

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DATED : 19.10.2023

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CORAM :

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THE HONOURABLE MR. JUSTICE J.SATHYA NARAYANA PRASAD

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Civil Revision Petition (PD) No.777 of 2021 and C.M.P.No.6503 of 2021

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Deivasikamani ... Petitioner

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Vs.

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Saraswathi … Respondent

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Civil Revision Petition filed under Article 227 of the Constitution of

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India praying to set aside the fair and decreetal order dated 05.11.2019 in C.M.A.No.37 of 2018 on the file of the Principal District Judge, Coimbatore

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and consequently to dismissed the I.A.No.78/2016 in O.S.No.90/2003 on the file of the Principal Subordinate Judge, Coimbatore.

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For Respondent : Mr.Camyles Gandhi

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O R D E R

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The Civil Revision Petition has been filed challenging the fair and decreetal order passed in C.M.A.No.37 of 2018 dated 05.11.2019 on the file of the

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C.R.P(PD)No.777 of 2021

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Principal District Judge, Coimbatore and consequently to dismiss the I.A.No.78/2016 in O.S.No.90/2003 on the file of the Principal Subordinate Judge, Coimbatore.

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Learned counsel for the petitioner submitted that in view of the sale agreement entered between the petitioner/plaintiff and the respondent on 09.08.1999 for a sum of Rs.2,00,000/-, the suit for specific performance in O.S.No.90 of 2003 was filed by the Petitioner before the Principal Subordinate Judge, Coimbatore. However, the respondent/defendant chose not to file the written statement. Hence, she was set-exparte and the suit was decreed on 06.09.2005. However, in the aforesaid sum, Rs.1,50,000/- has already been paid by the petitioner/plaintiff and the remaining amount of Rs.50,000/- was paid on 30.09.2005 by the Petitioner/plaintiff.

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Subsequent to the same, the respondent/defendant filed a petition to set aside the ex-parte decree and the same was set aside 17.08.2007. Thereafter, on 07.12.2011 when the suit was at the trial stage, again the respondent/defendant was set ex-parte. Then, in order to set aside the exparte decree dated 07.12.2011, I.A.No.78 of 2016 was filed by the Page No.2 of 11

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C.R.P(PD)No.777 of 2021

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respondent/defendant and the same was dismissed by the Principal Subordinate Judge, Coimbatore on 03.11.2017, challenging the dismissal order passed dated 03.11.2017, the respondent/defendant preferred C.M.A.No.37 of 2018 and the same was allowed by the Principal District Judge, Coimbatore by fair and decreetal order dated 05.11.2019 on condition that a sum of Rs.1,00,000/- has to be deposited before the concerned Court.

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Learned counsel for the petitioner drew the attention of this Court to the fair and decreetal order passed by the Principal District Judge, Coimbatore in C.M.A.No.37 of 2018 and the relevant paragraph of the order is extracted hereunder:

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“10/ nkny fz;lthW. tHf;fpd; tprhuiz njjpfspy; gy njjpfspy; Kd;dpiyahfp ,Uf;fptpy;iy/ kDjhuUk; gy tprhuiz njjpfspy; Kd;dpiyahfp ,Uf;ftpy;iy/ 24/11/2011 tprhuiz njjpapYk; Kd;dpiyahfpapUe;jjhf vt;tpj gjpt[k; ,y;iy/ 07/12/2011 md;Wk; Kd;dpiyahfpapUe;jjhf vt;tpj Fwpg;g[k; ,y;iy/

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11/ kDjhuUf;Fk;. Vjpu;kDjhuUf;Fkpilna ,t;tHf;F bjhlh;ghf rkur nghr;Rthh;j;ijfs; ele;J

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C.R.P(PD)No.777 of 2021

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bfhz;oUe;jjhft[k;. Mjyhy;jhd; ,t;tHf;fpd; ,Ujug;gpdu;fSk; tHf;F tprhuiz njjpfspy; ruj;ij vLj;Jf;bfhz;L. ePjpkd;wj;jpy;

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Kd;dpiyahftpy;iybad;Wk; kDjhuu; TWfpwhh;fs;/ Mdhy; mf;Tw;iw bka;g;gpf;Fk; tifapy; nghjpa thJiua[k;. rhl;rpaKk; Kd;dpiyg;gLj;jtpy;iy vdnt. kDjhuu; jkJ tHf;fif ,k;kDtpy; jpwk;gl vLj;J brhy;ytpy;iybadpDk; nknyfz;lgo. tHf;F ehl;Fwpg;gpd;go. kDjhuUf;Fk;. vjph;kDjhuUf;Fk; ngr;Rthu;j;ij ele;J bfhz;oUe;jpUf;fpwJ vd;gJk;. Mjyhy; jhd;. kDjhuUk;. vjph;kDjhuUk; tpruhiz njjpfspy; Kd;dpiyahfhky; ,Ue;Js;shh;fs; vd;gJk; mwpatUfpwJ/”

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Learned counsel for the petitioner would further submit that only

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based on the principle of natural justice, the appellate Court has allowed the appeal in C.M.A.No.37 of 2018 by the Principal District Judge, Coimbatore. While allowing the said appeal filed by the respondent/defendant, the contention of the petitioner/plaintiff was not taken into account by the Appellate Authority and the respondent/defendant dragged on the proceeding

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C.R.P(PD)No.777 of 2021

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for nearly 2 years from 2009 to 2011.

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Learned counsel for the petitioner has also placed reliance on the

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judgment passed by the Hon'ble Supreme Court of India in the case of Parimal Vs. Veena Alias Bharti reported in 2011 SCC 311. For better appreciation, the relevant paragraph is extracted hereunder:

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“16. In order to determine the application under Order 9 Rule 13 CPC, the test that has to be applied is whether the defendant honestly and sincerely intended to remain present when the suit was called on for hearing and did his best to do so. Sufficient cause is thus the cause for which the defendant could not be blamed for his absence. Therefore, the applicant must approach the Court with a reasonable defence. Sufficient cause is a question of fact and the Court has to exercise its discretion in the varied and special circumstances in the case at hand. There cannot be a straitjacked formula of universal application.”

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7. Learned counsel appearing for the respondent submitted that one

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more opportunity may be given to the respondent/defendant to put forth her case and he drew the attention of this Court to fair and decreetal order passed by the Appellate Court in C.M.A.No.37 of 2018 dated 05.11.2019 and the

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C.R.P(PD)No.777 of 2021

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relevant paragraph is extracted hereunder:

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“ 19/ ,e;ePjpkd;wk;. tHf;F ehl;Fwpg;ig (Notes Paper) ftdkhf guprPyid bra;jJ/ ,t;tHf;fpy; 15/04/2009 md;W vjph;kDjhuu;-thjpapd; Kjy; tprhuiz rhl;rpak; gjpt[ bra;ag;gl;oUf;fpwJ/ mjd;gpwF FWf;F tprhuizf;bfd gy;ntW njjpfspy; tHf;F xj;jpitf;fg;gl;oUe;jJ/ mt;tprhuizj; njjpfspy; (Hearing Dates) rpy njjpfspy;. KDjhuu; Kd;dpiahftpy;iy/ rpy njjpfspy; vjph;kDjhuu; Kd;dpiahftpy;iy/ bgUk;ghyhd tprhuizj; njjpfspy; (Hearing Dates) jug;gpdu;fs; Kd;dpiy Fwpj;J vt;tpj Fwpg;g[k; ,y;iy/ Fwpg;ghf 07/12/2011 Mk; njjpf;F Ke;ija tprhuiz njjpapy; fPH;f;fz;lthW gjpt[ bra;ag;gl;Ls;sJ/

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24.11.2011

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PW.1 Cross continuation. --- At request, adjourned 07.12.2011. 07.12.2011

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PW.1 Cross continuation. Defendant called absent set exparte. PW.1 proof affidavit already filed. The balance sale consideration already deposited vide Challan No.10681 dated30.09.2005. On persual of plaint, written statement, evidence of PW.1 and Exhibit A.1 to A.4, the sale agreement is proved by the plaintiff. The suit is decreed as prayed for with

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C.R.P(PD)No.777 of 2021

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cost. Time for execution one month”.

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The Appellate Court has allowed the aforesaid C.M.A.No.37 of 2018 by directing the respondent/defendant to deposit a sum of Rs.1,00,000/before the concerned Court on or before 05.12.2019 and the same was deposited on 30.11.2019. Hence, the order has been complied by the respondent/defendant.

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Heard the learned counsel on either side and perused the materials available on record.

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It is an admitted fact that the respondent/defendant has not been appeared before the Trial Court on many occasions and the respondent/defendant was set ex-parte by the Principal Subordinate Judge, Coimbatore in O.S.No.90 of 2003 on 06.09.2005, which was later transferred and renumbered as O.S.No.683 of 2020. Subsequently, the respondent/defendant filed an application to set aside the ex-parte decree, which was allowed on 17.08.2007. Thereafter, on 17.12.2011, when the suit was at the trial stage, again the respondent/defendant was set ex-parte. Thus,

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C.R.P(PD)No.777 of 2021

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I.A.No.78 of 2016 was filed by the respondent/defendant to set aside the exparte decree and it was dismissed. Challenging the said order, the respondent/defendant preferred C.M.A.No.37 of 2018 before the Principal District Judge, Coimbatore.

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The Principal District Judge, Coimbatore allowed the Civil Miscellaneous Appeal by passing a fair and decreetal order dated 05.11.2019, however, the conduct of the respondent/defendant cannot be appreciated by this Court for the fact that when he was set ex-parte for the first time, the same was set aside on 17.08.2007, thereafter, he did not choose to appear before the trial Court and again he was set ex-parte on 17.12.2011 at the Trial stage and the reason adduced by the respondent/defendant is unsustainable. However, this Court is inclined to give one more opportunity to the respondent/defendant to contest the suit.

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In view of the above facts and circumstances of the case, this Court is not inclined to set aside the fair and decreetal order in C.M.A.No.37 of 2018 dated 05.11.2019 by the Principal District Judge, Coimbatore and the same is hereby confirmed.

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C.R.P(PD)No.777 of 2021

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However, considering the huge delay, this Court is inclined to allow the I.A.No. 78 of 2016 on condition that a cost to the respondent/defendant and he shall pay costs of Rs.25,000/- to the Families for Children Orphanage, Shop No.107, Vellalore Road, Podanur, Near G.D.Water Tank Bust Stop, Coimbatore, Tamil Nadu – 641 023, within a period of two weeks from the date of receipt of a copy of the order, failing which the I.A.No.78 of 2016 in O.S.No.90 of 2003 on the file of the Principal Sub-Judge, Coimbatore will automatically stands dismissed without any further reference to this Court.

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As the suit is of the year 2003, the learned Principal District Judge, Coimbatore is directed to dispose of the suit O.S.No.683 of 2020 as expeditiously as possible, preferably within a period of six months from the date of receipt of a copy of this order.

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In the result,tThis Civil Revision Petition is disposed of with the above condition and directions. No costs.

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C.R.P(PD)No.777 of 2021

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Index : Yes/No Speaking Order : Yes/No Neutral Citation : Yes/No

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J.SATHYA NARAYANA PRASAD,J.

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19.10.2023

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Deivasikamani v. Saraswathi

Case brief

What is this about?

What did the court decide?

Deivasikamani v. Saraswathi

Case brief

What is this about?

What did the court decide?

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