Research › Search › Judgment

Madras High Court · body

2008 DIGILAW 867 (MAD)

Thankayyan v. Edwin Shaji

2008-03-07

K.K.SASIDHARAN

body2008
Judgment :- 1. The appellant calls in question the legality and correctness of the judgment and decree of the Subordinate Judge, Kuzhithurai dated 7.12.2006 in A.S. No.125 of 2005 reversing the judgment and decree dated 11.11.2005 in O.S. No.114 of 2002 on the file of Second Additional District Munsif, Kuzhithurai. 2. The respondent herein as plaintiff originally filed a Suit in O.S. No.114 of 2002 against the appellant for a decree of permanent injunction restraining the appellant from doing anything calculated to commit any sort of transfer, alienation and change in respect of the Plaint schedule property. The Suit was subsequently amended and a prayer for specific performance was incorporated, whereby the respondent sought specific performance of the agreement dated 5.1.2000 stated to have been executed by the appellant in favour of the respondent. 3. In the Plaint in O.S. No.114 of 2002, it was the case of the respondent that as per the agreement dated 05.01.2000, the appellant agreed to sell the suit property to the respondent on a consideration of Rs.44,000/-and he has also received a sum of Rs.20,000/-as advance from the respondent and it was agreed that on payment of the balance sale consideration of Rs.24,000/-, the appellant shall execute the sale deed within a period of six months from the date of agreement. The appellant is the direct brother of the respondents father and the respondent was always ready and willing to pay the balance sale consideration and to get the document executed. However, under some pretext or the other, the appellant was dragging the matter and of late the respondent came to know that the appellant is contemplating to sell the property to third parties and ultimately, he filed the Suit for permanent injunction, which was subsequently amended to incorporate the prayer for specific performance. 4. The appellant filed written statement, wherein he denied the execution of the very agreement and according to him, the document produced by the respondent is a fraudulent and forged document and no consideration was received to sell the property to the respondent. The appellant further contended that the respondent is a notorious criminal and involved in many Criminal Cases in Kerala State and Tamil Nadu, especially in car theft cases and though he is described as an Advocate Clerk, he is not a Clerk attached to any of the Counsel practising in Kanyakumari District or elsewhere. The appellant further contended that the respondent is a notorious criminal and involved in many Criminal Cases in Kerala State and Tamil Nadu, especially in car theft cases and though he is described as an Advocate Clerk, he is not a Clerk attached to any of the Counsel practising in Kanyakumari District or elsewhere. It was further contended in the written statement that at the instigation of the respondent, another Suit was preferred in O.S. No.41 of 2002 by one Ambirajan before the Principal Sub-Court, Kuzhithurai against the appellant and the said Suit was also a Suit for specific performance for sale of the very same property and the said case was also filed by the very same counsel, who is the counsel in the present Suit and accordingly, the appellant prayed for dismissal of the Suit. 5. The Trial Court framed three issues on the basis of the pleadings. On the side of the respondent, P.Ws.1 and 2 were examined and Ex.A.1 dated 5.1.2000 was marked. On the side of the appellant, he was examined as D.W.1 and no documents were exhibited. 6. The Trial Court, on the basis of the pleadings and evidence, found that the respondent has not proved his case and accordingly, dismissed the Suit as per judgment and decree dated 11.11.2005. 7. The judgment and decree in O.S. No.114 of 2002 dated 11.11.2005 on the file of Second Additional District Munsif, Kuzhithurai was challenged by the respondent before the Subordinate Court, Kuzhithurai in A.S. No.125 of 2005. The First Appellate Court issued notice to the appellant herein and in the judgment of the First Appellate Court, it is stated that the appellant was not served and ultimately, the Appeal was decided on merits in the absence of the appellant. In short, the First Appellate Court allowed the Appeal by setting aside the judgment and decree and the Suit was decreed as prayed for. 8. The judgment and decree dated 7.12.2006 in A.S. No.125 of 2005 on the file of Sub-Court, Kuzhithurai is the subject matter of the present Second Appeal. 9. The Appeal came up for admission on 24.10.2007 and this Court adjourned the matter to be taken up on 31.10.2007. 8. The judgment and decree dated 7.12.2006 in A.S. No.125 of 2005 on the file of Sub-Court, Kuzhithurai is the subject matter of the present Second Appeal. 9. The Appeal came up for admission on 24.10.2007 and this Court adjourned the matter to be taken up on 31.10.2007. Subsequently, the Appeal came up for hearing on 07.02.2008 and the learned counsel for the appellant submitted that the First Appeal was heard ex parte and his main grievance appears to be the non-service of notice on the appellant. According to the learned counsel for the appellant, notice was not served on the appellant in the First Appeal and there was no serious attempt to effect service and as such, the judgment of the Appellate Court is only an ex parte judgment and decree which is liable to be set aside in Appeal so as to enable the appellant to substantiate his contention before the First Appellate Court being the Court of facts. Therefore, considering the submission of the counsel for the appellant as well as the counsel for the respondent, this Court, as per order dated 7.2.2008, summoned the entire documents from the First Appellate Court including the Process Register and the return process with the batta memo and all other relevant documents evidencing service of notice to the appellant. Accordingly, the required documents were made available by the First Appellate Court. I have perused the lower Court records in the presence of the counsel on either side and it is found that the notice taken to the appellant was returned `unserved. There is no endorsement as to whether the appellant refused to receive the notice so as to contend that the notice is deemed to have been served on the appellant. It also appears that subsequently publication was taken against the appellant and after the said publication, the Appeal was heard on merits and ultimately, the Appeal was allowed giving rise to the present Appeal. 10. The learned counsel for the appellant contended that the very agreement in Ex.A.1 is highly doubtful given the notorious back ground of the respondent and according to him, the First Appellate Court grievously erred in relying on Ex.A.1 to decide the lis in favour of the respondent. It is his further contention that the Suit was originally filed only for injunction and it was subsequently amended to incorporate a prayer for specific performance. It is his further contention that the Suit was originally filed only for injunction and it was subsequently amended to incorporate a prayer for specific performance. According to the learned counsel, on the date on which the Application for amendment was filed, the Suit for the relief of specific performance was barred by limitation and as such, the First Appellate Court committed a serious error in allowing the Appeal and decreeing the Suit for specific performance. Ultimately, it was the contention of the learned counsel that the appellant may be given an opportunity to contest the Appeal on merits, as disputed question of fact is involved in the matter and the appellant would be able to demonstrate and substantiate his contention only before the First Appellate Court, as the Said Court is the final Court of facts and in the present Second Appeal exercising jurisdiction under Section 100 of the Civil Procedure Code, the appellant may not be in a position to demonstrate the merits and demerits of the case on facts. 11. Per contra, the learned counsel for the respondent supported the judgment and decree of the First Appellate Court and according to him, the argument with regard to non-service of notice cannot be taken in the present Appeal, as the Second Appeal is filed against the judgment and decree of the First Appellate Court. It is the contention of the learned counsel for the respondent that even if the appellant is aggrieved by the ex parte order, he could have agitated the same in the Application to set aside the ex parte order and as he left the said Application filed for setting aside the ex parte order, he cannot challenge the question with regard to non-service in the present Appeal. The learned counsel for the respondent further submitted that the appellant has already got the sale deed executed through Court by way of Execution Petition and though E.P. is still pending, he obtained the sale deed duly registered and as such, it is the contention of the learned counsel that nothing remains to be decided in the present matter. 12. It is not in dispute that the appellant was not represented in the first Appeal and the notice sent to him was returned `unserved and the service was effected only by publication. 12. It is not in dispute that the appellant was not represented in the first Appeal and the notice sent to him was returned `unserved and the service was effected only by publication. The First Appellate Court, before declaring the appellants ex parte, failed to call for the report of the Process Server, nor he was examined to show that he attempted to serve notice on the appellant and he actually had knowledge of the notice, but failed to receive the same. 13. The appellant filed an Application to set aside the ex parte judgment and decree dated 7.12.2006 in A.S. No.125 of 2005 before the First Appellate Court in I.A. No.156 of 2007 along with an Application in I.A. No.155 of 2007 to condone the delay of 95 days in filing the Application to set aside the judgment and decree in A.S. No.125 of 2005. The learned Appellate Judge, without adverting to the provisions of Order 41, Rule 21 of the Code of Civil Procedure, which permits an Application at the instance of the respondent to rehear the Appeal which was decided ex parte, passed a mechanical order. As per the said provision, if the respondent satisfied the Court that the notice was not duly served on him or that he was prevented by sufficient cause from appearing when the Appeal was called on for hearing, the Court shall rehear the Appeal on such terms as to costs or otherwise as it thinks fit to impose upon him. The provision in Order 41, Rule 21 of the Code of Civil Procedure is intended to come to the rescue of a respondent, who was prevented by sufficient cause from appearing during the hearing of the Appeal and when such an Application is filed, the Court is enjoined to deal with the same on merits. The learned Subordinate Judge, without appreciating the provision in Order 41, Rule 21 of the Code of Civil Procedure, passed a mechanical order that there is no right to file the Application before the said Court, as there is no Appeal pending before the Court and rejected the Application as per order dated 26.04.2007 and the said order is extracted below: "Petition filed under Order 41, Rule 21 and Section 151 of C.P.C. to set aside the decree in A.S. No.125 of 2005. 2. Records perused. There is no Appeal pending before this Court. 2. Records perused. There is no Appeal pending before this Court. Already the Appeal was disposed of. The petitioner has no right to file this Petition before this Court. Hence in the interest of justice the Petition is dismissed. No cost." 14. By dismissing the Application, the learned Subordinate Judge really caused prejudice to the present appellant. The provisions of Order 41, Rule 21 of the Code of Civil Procedure is extracted below, for better appreciation: "21. Re-hearing on Application of respondent against whom ex parte decree made: Where an Appeal is heard ex parte and judgment is pronounced against the respondent, he may apply to the Appellate Court to re-hear the Appeal; and, if he satisfied the Court that the notice was not duly served or that he was prevented by sufficient cause from appearing when the Appeal was called on for hearing, the Court shall re-hear the Appeal on such terms as to costs or otherwise as it thinks fit to impose upon him." 15. Therefore, I am of the view that the order passed by the learned Subordinate Judge in I.A. Nos.155 of 2007 and 156 of 2007 dated 26.4.2007 are to be revised by exercising the powers under Article 227 of the Constitution of India, as this Court is a Court of record. Accordingly, the order dated 26.4.2007 in I.A. No.155 of 2007 as well as I.A. No.156 of 2007 in A.S. No.125 of 2005 are set aside. 16. In Kishore Kumar Khaitan v. Praveen Kumar Singh, 2006 (3) CTC 185: 2006 (2) Scale 304 , the Apex Court considered the jurisdiction of the High Court under Article 227 of the Constitution of India to correct the errors of jurisdiction and held thus: "12. The jurisdiction under Article 227 of the Constitution may be restrictive in the sense that it is to be invoked only to correct errors of jurisdiction. But when a Court asks itself a wrong question or approaches the question in an improper manner, even if it comes to a finding of fact, the said finding of fact cannot be said to be one rendered with jurisdiction and it will still be amenable to correction at the hands of the High Court under Article 227 of the Constitution. The failure to render the necessary findings to support its order would also be a jurisdictional error liable to correction" 17. The failure to render the necessary findings to support its order would also be a jurisdictional error liable to correction" 17. The learned Subordinate Judge proceeded more on technicality and failed to consider the fact that in the said process, the learned Judge denied the opportunity to the present appellant to participate in the process of justice dispensation. All the procedures are the handmaid of justice and in fact, the Apex Court considered the procedural law vis-a-vis substantial law in R.N. Jadi & Brothers v. Subhashchandra, 2007 (4) CTC 326: 2007 (9) Scale 202 and observed thus: "9. All the rules of procedure are the handmaid of justice. The language employed by the draftsman of processual law may be liberal or stringent, but the fact remains that the object of prescribing procedure is to advance the cause of justice. In an adversarial system, no party should ordinarily be denied the opportunity of participating in the process of justice dispensation. Unless compelled by express and specific language of the Statute, the provisions of the CPC or any other procedural enactment ought not to be construed in a manner which would leave the Court helpless to meet extraordinary situations in the ends of justice. 10. The mortality of justice at the hands of law troubles a Judges conscience and points an angry interrogation at the law reformer. 11. The processual law so dominates in certain systems as to overpower substantive rights and substantial justice. The humanist rule that procedure should be the handmaid, not the mistress, of legal justice compels consideration of vesting a residuary power in judges to act ex debito justiciae where the tragic sequel otherwise would be wholly inequitable justice is the goal of jurisprudenceprocessual, as much as substantive. [See Sushil Kumar Sen v. State of Bihar, 1975 (1) SCC 774 ]. 12. No person has a vested right in any course of procedure. He has only the right of prosecution or defence in the manner for the time being by or for the Court in which the case is pending, and if, by an Act of Parliament the mode of procedure is altered, he has no other right than to proceed according to the altered mode. [See Blyth v. Blyth, 1966 (1) All E.R. 524 (HL)]. [See Blyth v. Blyth, 1966 (1) All E.R. 524 (HL)]. A procedural law should not ordinarily be construed as mandatory, the procedural law is always subservient to and is in aid to justice. Any interpretation which eludes or frustrates the recipient of justice is not to be followed. [See Shreenath and Anr.v.Rajesh and Ors., AIR 1998 SC 1827 ]. 13. Processual law is not to be a tyrant but a servant, not an obstruction but an aid to justice. Procedural prescriptions are the handmaid and not the mistress, a lubricant, not a resistant in the administration of justice." 18. The issue regarding the limitation to file a Suit for specific performance on the date of amendment is really a vital issue to be decided in the present matter. The First Appellate Court proceeded to grant the decree ignoring the fact that it was only by way of an amendment, the prayer for specific performance was incorporated. Whether on the date on which the Application for amendment was filed, the Suit for specific performance was barred or not was not seriously considered by the First Appellate Court. 19. The Apex Court, in a recent decision in the matter of Hero Vinoth v. Seshammal, 2006 (4) CTC 79: 2006 (5) Scale 477 , considered the scope of interference with regard to finding of fact arrived at by the First Appellate Court and held thus: "13. Though as rightly contended by learned counsel for the appellant the scope for interference with concurrent findings of fact while exercising jurisdiction under Section 100, C.P.C. is very limited, and re-appreciation of evidence is not permissible where the Trial Court and/or the First Appellate Court misdirected themselves in appreciating the question of law or placed the onus on the wrong party certainly there is a scope for interference under Section, 100 C.P.C. after formulating a substantial question of law. 14. As was noted in Yadarao Dajiba Shrawane (dead) by LRs. v. Nanilal Harakchand Shah (dead) and Ors., 2002 (6) SCC 404 , if the judgments of the Trial Court and the First Appellate Court are based on mis-interpretation of the documentary evidence or consideration of inadmissible evidence or ignoring material evidence or on a finding of fact has ignored admissions or concession made by witnesses or parties, the High Court can interfere in Appeal. 15. Neelakantan and Ors. 15. Neelakantan and Ors. v. Mallika Begum, 2002 (2) SCC 440 , it was held that findings of fact recorded must be set aside where the finding has no basis in any legal evidence on record or is based on a misreading of evidence or suffers from any legal infirmity which materially prejudices the case of one of the parties. (See: Krishna Mohan Kul alias Nani Charan Kul and Another v. Pratima Maity and others, 2004 (9) SCC 468). 20. A reading of the judgment of the First Appellate Court shows that there was no serious attempt or effort to consider the various issues involved in the said Appeal. 21. The Suit for specific performance being an equitable remedy, the plaintiff has to show his readiness and willingness to perform his part of the contract and many factors do weigh with the Court while granting a relief in such Suits. 22. The Apex Court in B.K. Sri Harsha v. Bharath Heavy Electricals Ltd., 2008 (2) Scale 338 , while considering the factors involved in a Suit for specific performance, referred to an earlier judgment of the Apex Court and observed thus: "8. The nature of Suit for specific performance of contract has been highlighted by this Court in several cases. In Rajeshwari v. Puran Indoria, 2005 (7) SCC 60 , it was inter-alia observed as under: "5. Normally, a Suit for specific performance of an agreement for sale of immovable property involves the question whether the plaintiff was ready and willing to perform his part of the contract in terms of Section 16 of the Specific Relief Act, whether it was a case for exercise of discretion by the Court to decree specific performance in terms of Section 20 of the Specific Relief Act and whether there were laches on the part of the plaintiff in approaching the Court to enforce specific performance of the contract. In some cases, a question of limitation may also arise in the context of Article 54 of the Limitation Act on the terms of the agreement for sale. Other questions like the genuineness of the agreement, abandoning of the right to specific performance, a novation and so on, may also arise in some cases. In some cases, a question of limitation may also arise in the context of Article 54 of the Limitation Act on the terms of the agreement for sale. Other questions like the genuineness of the agreement, abandoning of the right to specific performance, a novation and so on, may also arise in some cases. No doubt, a finding on the three primary aspects indicated earlier would depend upon the appreciation of the pleadings and the evidence in the case in the light of the surrounding circumstances. 6. The right to specific performance of an agreement for sale of immovable property, when filed, raises questions of substantial importance between the parties as to whether the plaintiff has satisfied the requirements of Section 16 of the Specific Relief Act, whether it is a case in which specific performance of the contract is enforceable in terms of Section 10, whether in terms of Section 20 of the Act, the discretion to decree specific performance should be exercised by the Court and in some cases, whether the Suit was barred by limitation and even if not, whether the plaintiff has been guilty of negligence or laches disentitling him to decree for specific performance. These questions, by and large, may not be questions of law of general importance. But they cannot also be considered to be pure questions of fact based on an appreciation of the evidence in the case. They are questions which have to be adjudicated upon, in the context of the relevant provisions of the Specific Relief Act and the Limitation Act (if the question of limitation is involved). Though an order in exercise of discretion may not involve a substantial question of law, the question whether a Court could, in law, exercise a discretion at all for decreeing specific performance, could be a question of law that substantially affects the rights of parties in that Suit." 23. Though an order in exercise of discretion may not involve a substantial question of law, the question whether a Court could, in law, exercise a discretion at all for decreeing specific performance, could be a question of law that substantially affects the rights of parties in that Suit." 23. Therefore, I am of the view that the appellant had made out a case for interference in the judgment and decree of the First Appellate Court not only on the ground that it is an ex parte judgment and decree but also on merits, as the issue with regard to limitation in filing the Suit and the effect of amendment of Plaint with respect to the plea of limitation for specific performance were not at all considered by the First Appellate Court in their proper perspective. Accordingly, I am inclined to remand the Appeal to the First Appellate Court to consider the entire matter afresh on merits and the parties are directed to appear before the First Appellate Court on 24.03.2008. 24. The Second Appeal is disposed of accordingly. However, in the facts and circumstances of the case, there shall be no order as to costs. Consequently, the connected Miscellaneous Petition is closed.