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2010 DIGILAW 3744 (MAD)

S. Rani v. Therasa

2010-08-25

B.RAJENDRAN

body2010
Judgment :- 1. The Civil Revision Petition is filed against the dismissal of Section 47 Application made in O.S. No. 2543 of 1997. 2. The Revision Petitioners would contend that the ex-parte decree, which was obtained in O.S. No.2543 of 1997, was first came to their knowledge only on the notice issued in the execution stage. In fact, earlier, they filed Application to set aside the ex-parte that too, with delay and the same was dismissed. But their main contention was that the Suit itself is not maintainable as originally the date of agreement was 20.12.1982 and the period for Specific Performance was three months and thereafter, they have not issued any notice of their willingness to perform their contract. Thereafter, they issued a notice dated 26.2.1992 which was replied on 8.3.1992. Immediately, thereafter, a Suit was filed in the year 1992 seeking specific performance. In the said Suit, they contended that the Suit is barred by limitation on the ground that the agreement is of the year 1982 and the period is only three months. Unfortunately, the Suit was decreed ex-parte and for which, they have also filed Application to set aside the ex-parte decree, which was also dismissed. Thereafter, they have filed Section 47 Application stating that the decree itself is nullity since it is barred by limitation. But the said Application was also dismissed. Aggrieved against the same, they have come forward with the present Civil Revision Petition. 3. At the time of admission itself, three questions were posed before the learned Counsel for the Revision Petitioner, namely,- (1) For a period of three months, originally made in the agreement of sale, was there any notice issued by the present Revision Petitioners cancelling the document? When was actually agreement cancelled because in the notice dated 26.2.1992, there was no mention about the date of cancellation of the agreement. (2) Whether any proceedings initiated under RCOP Act or any Suit filed by the owner/Revision Petitioners? (3) Whether any rent was collected and any steps were taken to take possession? 4. The short facts pertaining to the case is that the Agreement of Sale was executed as early as on 12.12.1982 with a condition that the sale has to be completed within three months. It is an admitted fact that neither party, after the period of agreement, did not proceed further. 4. The short facts pertaining to the case is that the Agreement of Sale was executed as early as on 12.12.1982 with a condition that the sale has to be completed within three months. It is an admitted fact that neither party, after the period of agreement, did not proceed further. But it is also an agreed fact that the possession was handed over to the Respondents pursuant to the agreement, as part performance of the contract. The first notice was issued only on 26.2.1992 by the present Petitioners’ mother Dhanalakshmi to the Respondents stating that believing the representation made by the Respondents, the Dhanalakshmi has executed agreement though it is stated as three months in the agreement, the period was extended by one year so that she could collect the money. In that notice, it was further stated that the original party, Stephensen died and that he was a Tenant in the property and that calling upon him to vacate and hand over the possession of the property and also claimed arrears of rent right from 1982 since the rent has become barred by limitation, restricting the rent only for a period of three years. Therefore, it is very clear even from the admission of the Dhanalakshmi in the notice dated 26.2.1992 that the Respondents’ predecessor and the Respondents were in possession of the property pursuant to the agreement and the period of three months has been extended further to one year and after that they have not taken any steps for even cancellation nor it is mentioned when it was cancelled. But new theory was stated in notice that he became Tenant of the property from 1982 pursuant to the possession and agreed rent of Rs. 300/- was paid from 1982 to 1992 and thereafter, she claims the arrears of rent only for three years as the other arrears barred by limitation and she seeks for possession of the property for which detailed reply was given as early as on 8.3.1992 itself denying the tenancy and they would only claim that they are in possession of the property pursuant to the part performance of the Sale Agreement and they are still ready and willing to purchase the property and sought for execution of the Sale Deed. For which, no further reply was made immediately. 5. For which, no further reply was made immediately. 5. After the reply notice, the Suit in O.S. No.284 of 1992 was filed by the Respondents herein before the Subordinate Judge, Poonamallee directing the Petitioners to execute and register the Sale Deed in favour of the Respondents herein pursuant to the Agreement, dated 20.12.1982. In that Suit as early as on 7.12.1994, the statement was filed raising the point of limitation. Thereafter, the Suit was transferred to District Munsif Court, Tambaram and renumbered as O.S. No.442 of 1996. Again the Suit was transferred to District Munsif Court, Alandur. In the District Munsif Court, Alandur, though the Advocate represented, the matter was decreed ex-parte as early as on 10.1.2001. Thereafter, the Petitioners filed I.A. No.995 of 2003 for condoning the delay in filing the Petition to set aside the ex-parte decree. The delay was condoned but the Petition to set aside the ex-part decree in I.A. No.31 of 2004 was dismissed. Even as against the dismissal of the Petition to set aside the ex-parte decree, no Appeal was preferred. Therefore, the ex-parte decree became final and it is also pertinent to mention here that from the year 1992 to till date, no steps have been taken by the Revision Petitioners or the predecessor in title either to file a Suit for recovery of possession to recover rent under RCOP. Subsequently, pursuant to the ex-parte decree, an E.P. No.68 of 2001 was filed long back and in the EP also, they remained ex-parte and the Court ordered the sale to be executed and the Sale Deed itself was executed by the Court as early as on 2002 itself. Even after the execution of the Sale Deed. No steps have been taken to set aside the Sale Deed executed through Court. As stated supra, his Petition to set aside the ex-parte was also dismissed for which no Appeal filed. 6. While so, even though the Respondents were in possession of the property, they filed another EP to record their possession pursuant to the decree. When the second EP was filed for recording his possession, the present Section 47 Application has been filed on the ground that the Suit itself could not have been filed as it is barred by limitation. While so, even though the Respondents were in possession of the property, they filed another EP to record their possession pursuant to the decree. When the second EP was filed for recording his possession, the present Section 47 Application has been filed on the ground that the Suit itself could not have been filed as it is barred by limitation. Unfortunately, this defence is not open to the Revision Petitioner at this point of time because the very notice issued by Dhanalakshmi as early as on 26.2.1992 clearly gives go by to the theory that the agreement was cancelled earlier. Admittedly, after the period mentioned in the agreement, no notice was issued by the Revision Petitioners/predecessor in title. Therefore, notice was issued only in the year 1992. Having kept quiet for a period of 10 years, it is not open to the Petitioners at this point of time to say that the Suit is barred by limitation, that too, in a Suit for Specific Performance, the person can definitely file Suit from the date when the agreement is refuted or cancelled. In this case, first refutation came by way of reply notice only on 8.3.1992. After refutation of contract, within 30 days, the Suit has been filed. In that Suit, they remained ex-parte. Application filed to set aside the ex-parte decree also dismissed. No steps have been taken even after EP sale has been executed. Now, they want to set aside the entire prior history by way of Section 47 Application, which is rightly rejected by the Court below. Hence, the Civil Revision Petition is devoid of merits and the same is dismissed. No costs. Consequently, connected M.P. is also closed. 7. It is represented by the learned Counsel for the Revision Petitioners that the balance of sale consideration was directed to be deposited by the Court below and hence, they may be permitted to withdraw the same. The Petitioners are permitted to move Application for withdrawal of the amount lying the Court Deposit.