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2009 DIGILAW 613 (MAD)

K. P. Venkatachalapathi v. Theivatha

2009-02-19

G.RAJASURIA

body2009
Judgment :- Heard the learned counsel on either side. 2. A summarization and summation of the relevant facts, which are absolutely necessary and germane for the disposal of this revision would run thus: The revision petitioner/plaintiff filed the suit O.S.No.44 of 2007 seeking to declare that the sale deed dated 17.05.2005 executed by the second defendant in favour of the first defendant is null and void and for a permanent injunction restraining the defendants from interfering with his peaceful possession and enjoyment of the suit property. While so, he filed I.A.No.155 of 2007 seeking interim injunction. Whereupon counter was filed by D2 virtually admitting the contentions of the petitioner/plaintiff in the said I.A. Such a counter was purported to have have been filed by D2 under the signature of D2 by her Advocate one Senthil Kumar. It so happened that subsequently, I.A.No.713 of 2007 was filed by the same D2, seeking the following relief: - to strike off the original counter statement of the petitioner in I.A.No.155 of 2007 in O.S.No.44 of 2007 and to permit her to file a fresh counter statement and to receive the same. Whereupon, the lower Court after hearing both the sides allowed the said application striking out the earlier counter filed on behalf of D2 in I.A.No.155 of 2007 and permitted D2 to file fresh counter, which is virtually quite antithetical to the stand taken earlier by D2 in the earlier counter of D2.Being disconcerted by and dissatisfied with the order of the lower Court, this revision has been focussed by the plaintiff on various grounds. 3. Learned counsel for the revision petitioner would develop his argument placing reliance on the grounds of revision to the effect that D2 admitting candidly and supinely that she executed the sale deed in favour of the plaintiff, filed the counter in I.A.No.155 of 2007 with the help of her Advocate Thiru.Senthil Kumar; however, subsequently, she turned turtle by having a volte face and disowned her own earlier counter; as such, the order of the lower Court is having no legs to stand and it should be set aside. 4. 4. Whereas the learned counsel for the respondent/D2 would set forth and put forth his argument that the lower Court correctly appreciated the relevant facts that on 13.03.2007 the learned Advocate Senthil Kumar withdrew his appearance by making endorsement in the vakalat; thereafter on 04.06.2007, such impugned counter was filed in I.A.No.155 of 2007 as though D2 admitted the allegations/averments of the plaintiff; the said Senthil Kumar, Advocate earlier accepted vakalath for the plaintiff and that Senthil Kumar himself made corrections by putting his initials on some portion of the plaint; as such, the lower Court allowed the I.A.No.713 of 2007 for striking out the earlier counter of D2 filed and for entertaining her fresh counter. 5. Pellucidly and palpably, apparently and blindly, it is indispensable that the lower Court had seen only one side of the matter and not the other side. The affidavit of the Advocate, Senthil Kumar is a must for deciding the issue but unfortunately it was not directed to be filed by him. The entire issue/dispute is centered on Advocate Senthil Kumar. According to the lower Court, he accepted the vakalat on behalf of the plaintiff and the same Advocate accepted the vakalat for D2 and filed the counter. In such a case, the lower court after serving the copy of the I.A.No.713 of 2007, should have directed him to file an affidavit explaining his stand. Absolutely, I could see no reason to countenance and uphold the order of the lower Court. 6. It is a common or garden principle of law that respondents/defendants can take even antithetical stand in some cases and the Court is not so strict in allowing the respondent/defendant to modify or get his version amended by filing amendment application under Order 6 Rule 17 of the Code of Civil Procedure. In this case, when the Court had gone to the extent of giving its finding on factual aspects in para No.8, of its order, it ought to have heard the Advocate Senthil Kumar about the real position. Whereas the learned counsel for the revision petitioner/plaintiff would contend that D2 initially accepting voluntarily the stand of the plaintiff, filed a counter and that by change of mind, she resiled from it, wherefore the Court should not have allowed such prevaricative stand of D2. 7. Whereas the learned counsel for the revision petitioner/plaintiff would contend that D2 initially accepting voluntarily the stand of the plaintiff, filed a counter and that by change of mind, she resiled from it, wherefore the Court should not have allowed such prevaricative stand of D2. 7. Hence, in these circumstances, I am of the considered view that the order of the lower Court has to be set aside with direction that the I.A.No.713 of 2007 is remitted back to the lower court to be heard along with I.A.No.155 of 2007. The lower Court after serving a copy of the affidavit and the petition in I.A.No.713 of 2007 to the Advocate Senthil Kumar, call upon him for his affidavit and shall take oral and documentary evidence in I.A.No.155 of 2007 and decide both the I.As together and it is for the court to arrive at a conclusion after finding out the truth in the matter. I make it clear that it is open for the plaintiff to place reliance on the earlier counter filed by D2 as well as the subsequent antithetical counter filed by D2 and it is for the court to decide the truth or falsity involved in the matter and render its reasoned judgment. 8. With the above observation, this civil revision petition is disposed of. No costs. Consequently, the connected miscellaneous petition is closed.