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Madras High Court · body

2010 DIGILAW 5171 (MAD)

First v. Second

2010-11-26

M.VENUGOPAL

body2010
Judgment : 1. The Petitioners/Appellants/Defendants have filed this miscellaneous petition praying for issuance of an order by this Court to stay the operation of the Judgment and Decree in O.S.No.178 of 2004 dated 30.04.2008 passed by the Learned II Additional District Judge, Salem (Fast Track Court-II) and proceedings pursuant thereto pending disposal of the Appeal. 2. The trial Court in O.S.No.178 of 2004 (O.S.No.698 of 2003 on the file of the Learned Sub Judge, Salem) on 30.04.2008 has passed a Judgment directing the Petitioners/Appellants/ Defendants to pay the suit claim of Rs.5,43,600/- and for the principal sum of Rs.4,00,000/- to pay an interest at 6% per annum from the date of filing of the suit till date of payment and also granted three months time to the Petitioners/Appellants/ Defendants to make the payment viz., the Decree amount. 3. Feeling aggrieved as against the Judgment and Decree of the trial Court viz., the Learned II Additional District Judge, Salem (Fast Track Court-II) in O.S.No.178 of 2004 dated 30.04.2008, the Petitioners/Appellants/Defendants have projected the present Appeal A.S.No.144 of 2009 before this Court. 4. This Court in M.P.No.1 of 2009 in A.S.No.144 of 2009 filed on behalf of the Petitioners/Appellants/Defendants praying for the relief of stay of operation of the Judgment and Decree passed by the trial Court viz., the Learned II Additional District Judge, Salem (Fast Track Court-II) dated 30.04.2008 has interalia observed and passed the following order: "... Therefore, I see a prima facie case to grant an order of interim stay but with the condition. Accordingly, the interim stay is granted on condition that the petitioners to deposit 25% of the suit claim of Rs.5,43,600/-within a period of four weeks from today to the credit of the suit before the Lower Court. In default to deposit the said amount, the interim stay granted will stand automatically vacated without further reference to this Court. Notice to the Respondent returnable by four weeks. Post the case after the service of notice." 5. In default to deposit the said amount, the interim stay granted will stand automatically vacated without further reference to this Court. Notice to the Respondent returnable by four weeks. Post the case after the service of notice." 5. The Learned Counsel for the Petitioners/Appellants/ Defendants urges before this Court that the Respondent/Plaintiff in the Plaint has suppressed the Lawyers reply notice dated 17.03.2003 (issued on behalf of the Petitioners/Appellants/ Defendants) and the trial Court has not taken into account of the plea of the Petitioners/Appellants/Defendants that the entire amount has been paid by the Petitioners/Appellants/Defendants and in any event the Petitioners/Appellants/Defendants have preferred the present Appeal before this Court and the same is pending. 6. Also, the Learned Counsel for the Petitioners/ Appellants/ Defendants contends that this Court in M.P.No.1 of 2009 in A.S.No.144 of 2009 on 23.01.2009 has directed the Petitioners/ Appellants/Defendants to deposit 25% of the suit claim of Rs.5,43,600/-within a period of four weeks to the credit of the suit before the trial Court and since the amount of Rs.1,35,900/- being 25% of the suit claim of Rs.5,43,600/- has since been complied by the Petitioners/ Appellants/ Defendants then they are entitled to get the interim stay order granted by this Court subject to the condition as an absolute one. 7. That apart, it is the contention of the Learned Counsel for the Petitioners/Appellants/Defendants that the Respondent/ Plaintiff has filed a reply statement under Order 8 Rule 9 of Civil Procedure Code before the trial Court and the exercise of discretion by the trial Court in allowing the Respondent/Plaintiff to project the reply statement is not valid in law and in this regard the Petitioners/ Appellants/ Defendants have raised a ground in the memorandum of Appeal as a second ground and strictly speaking the Respondent/ Plaintiff should have filed an amendment application under Order 6 Rule 17 of Civil Procedure Code. 8. The core contention put forward on the side of the Petitioners/Appellants/Defendants is that there is no provision in Civil Procedure Code to enable the Respondent/ Plaintiff to file a reply statement to the written statement under Order 8 Rule 9 of Civil Procedure Code. 9. No counter is filed on behalf of the Respondent/Plaintiff. 10. At this juncture, this Court pertinently points out that Order 8 Rule 9 of Civil Procedure Code speaks of subsequent pleadings. 11. 9. No counter is filed on behalf of the Respondent/Plaintiff. 10. At this juncture, this Court pertinently points out that Order 8 Rule 9 of Civil Procedure Code speaks of subsequent pleadings. 11. A careful perusal of the ingredients of Order 8 Rule 9 of Civil Procedure Code goes to point out that the first part of Order 8 Rule 9 of Civil Procedure Code enacts a prohibition in regard to the filing of subsequent pleadings, after the written statement being filed. The use of the term Pleading shows that the ban is applicable equally to a Plaintiff and the Defendant because of the fact that a pleading by way of defence to stay off or counter claim can only be filed by the Plaintiff. But with the permission of a Court of law, a party can project a subsequent pleading. 12. It is to be noted that additional pleadings in Order 8 Rule 9 of Civil Procedure Code includes both plaint and written statement. Additional plaint also is called either Rejoinder or the reply statement in its exact /real consignment. 13. This Court pertinently points out that an Application/ Petition under Order 8 Rule 9 of Civil Procedure Code both being contextually different as opined by this Court. A Court of Law granting leave under Order 8 Rule 9 of Civil Procedure Code is a matter of its judicial discretion vested in it. 14. As regards the second part in Order 8 Rule 9 of the Civil Procedure Code, the employment of the words any of the parties indicates that the said rule is quite applicable to the Plaintiff and the Defendant because of the simple fact that in a counter claim the status of the Plaintiff is that of a Defendant. But the second part of the Rule does not confer any right on a party to file written statement or additional written statement. 15. But the second part of the Rule does not confer any right on a party to file written statement or additional written statement. 15. Inasmuch as the Respondent/Plaintiff has filed a reply statement the trial Court has received the same and as against the receipt of the reply statement filed by the Respondent/ Plaintiff before the trial Court, the Petitioners/Appellants/Defendants have taken a ground in this regard in Appeal and therefore, this Court at this stage only points out that Order 8 Rule 9 permits a Court of law to exercise its judicial discretion and to permit the Petitioners/ Appellants/Defendants and it is still open to the Petitioners/ Appellants/Defendants to agitate the same in the manner known to law before this Court at the stage of hearing of the main Appeal and therefore, this Court is not proceeding any further on this aspect. 16. Expatiating his submissions, it is the contention of the Learned Counsel for the Petitioners/Appellants/Defendants that this Court on 23.01.2009 in M.P.No.1 of 2009 has exercised its discretion in ordering interim stay subject to the condition that the Petitioners deposit 25% of the suit claim of Rs.5,43,600/-and since a sum of Rs.1,35,900/- has been deposited before the trial Court to the credit of the suit, then the Petitioners/Appellants/ Defendants cannot be compelled to deposit any further amount since the Appeal is pending as on date before this Court. 17. Advancing his arguments, the Learned Counsel for the Petitioners/Appellants/Defendants brings it to the notice of this Court that the Respondent/Plaintiff has filed an Execution Petition before the Court seeking arrest in O.S.No.178 of 2004 on the file of the trial Court and the same is pending. 18. The Learned Counsel for the Petitioners/Appellants/ Defendants places reliance on the decision of the Honourable Supreme Court Sihor Nagar Palika Bureau V. Bhabhlubhai Virabhai & Co. (2005) 4 Supreme Court Cases 1 wherein the Honourable Supreme Court has held as follows: "The High Court ought to have permitted furnishing of security instead of insisting on deposit in cash of the amount as directed by the High Court. It is not the case of the Respondent that in the event of the Appeal being dismissed the decretal amount may not be recovered from the Appellant. It is not the case of the Respondent that in the event of the Appeal being dismissed the decretal amount may not be recovered from the Appellant. On the other hand, the Appellant has made out a prima facie strong case for the hearing of the Appeal on its merits and further a case that public interest would be better served by the amount being retained by the Appellant during the pendency of the Appeal." 19. Also, the Learned Counsel refers to the observation of Honourable Supreme Court in the aforesaid decision at paragraph 6 at page 2 wherein it is held thus: "Order 41 Rule 1(3) Civil Procedure Code provides that in an appeal against a decree for payment of amount the Appellant shall, within the time permitted by the Appellate Court, deposit the amount disputed in the Appeal or furnish such security in respect thereof as the Court may think fit. Under Order 41 Rule 5 (5), a deposit or security, as abovesaid, is a condition precedent for an order by the Appellate Court staying the execution of the decree. A bare reading of the two provisions referred to hereinabove, shows a discretion having been conferred on the Appellate Court to direct either deposit of the amount disputed in the Appeal or to permit such security in respect thereof being furnished as the Appellate Court may think fit. Needless to say that the discretion is to be exercised judicially and not arbitrarily depending on the facts and circumstances of a given case. Ordinarily, execution of a money decree is not stayed inasmuch as satisfaction of money decree does not amount to irreparable injury and in the event of the Appeal being allowed, the remedy of restitution is always available to the successful party. Still the power is there, of course a discretionary power, and is meant to be exercised in appropriate cases." 20. It is useful for this Court to refer to Order 41 Rule 3 of Civil Procedure Code which runs as follows: "Where the Appeal is against a decree for payment of money, the appellant shall, within such time as the Appellate Court may allow, deposit the amount disputed in the appeal or furnish such security in respect thereof as the Court may think fit." 21. Further, Order 41 Rule 5 of Civil Procedure Code reads as follows: "(1)An Appeal shall not operate as a stay of proceedings under a decree or order appealed from except so far as the Appellate Court may order, nor shall execution of a decree be stayed by reason only of an appeal having been preferred from the decree; but the Appellate Court may for sufficient cause order stay of execution of such decree. Explanation - An order by the Appellate Court for the stay of execution of the decree shall be effective from the date of the communication of such order to the Court of first instance, but an affidavit sworn by the Appellant, based on his personal knowledge, stating that an order for the stay of execution of the decree has been made by the Appellate Court shall, pending the receipt from the Appellate Court of the order for the stay of execution or any order to the contrary, be acted upon by the Court of first instance." 22. As per Order 41 Sub Rule (3) of Civil Procedure Code the Appellate Court has a discretion to determine the time within which the deposit or a security has to be given. The mandatory requirement of Order 41 Sub Rule (3) comes into operative play even if there is no Application/Petition for stay of the execution of the trial Courts Decree. It cannot be doubted that the Application for stay of execution is maintainable without prior deposit of decretal amount or furnishing of security. 23. The mandatory requirement of Order 41 Sub Rule (3) comes into operative play even if there is no Application/Petition for stay of the execution of the trial Courts Decree. It cannot be doubted that the Application for stay of execution is maintainable without prior deposit of decretal amount or furnishing of security. 23. However, it is the contention of the Learned Counsel for the Respondent/Plaintiff that the Respondent/Plaintiff has projected an Execution Petition before the executing Court and the principal amount is Rs.4,00,000/-and the suit has been decreed by the trial Court based on which the Execution Petition has been filed by the Respondent/Plaintiff and further, the Petitioners/Appellants/ Defendants are liable to pay a sum of Rs.6,74,000/-as per the claim made and since the Petitioners/ Appellants/Defendants have only deposited 25% of the suit claim of Rs.5,43,600/-which works out to Rs.1,35,900/-, this Court may be pleased to direct the Petitioners/ Appellants/Defendants to deposit another 25% of the suit claim before the trial Court to the credit of the suit and according to the Learned Counsel for the Respondent/Plaintiff, the Appellate Court has still got powers to pass such an order in view of the fact that since what has been passed by this Court on 23.01.2009 in M.P.No.1 of 2009 in A.S.No.144 of 2009 is only an interim order and till the disposal of the miscellaneous petition or the Appeal this Court retains control and power over the subject matter in issue between the parties. 24. It cannot be gainsaid that power of a Court of Law to exercise its discretionary power while passing an interim order, of course must be based on judicious approach and also on sound discretion being exercised by it. It is always open to a Court of Law to impose further/additional condition of course on hearing the opposite side. 25. The power to grant stay is a discretionary one and flows from the jurisdiction conferred on Appellate Court, which is equitable in nature. 26. As a matter of fact, the provision of Order 41 Rule 1 (3) of Civil Procedure Code is only directory and not mandatory in the considered opinion of this Court. To do substantial and complete justice between the parties this Court can vary or modify the stay order if an exigency requires. 27. 26. As a matter of fact, the provision of Order 41 Rule 1 (3) of Civil Procedure Code is only directory and not mandatory in the considered opinion of this Court. To do substantial and complete justice between the parties this Court can vary or modify the stay order if an exigency requires. 27. On a careful consideration of respective contentions and even though this Court has exercised its discretionary power while granting interim stay on condition that the Petitioners/ Appellants/ Defendants should deposit 25% of the suit claim of Rs.5,43,600/- within a period of four weeks from today etc., as per its order dated 23.01.2009 and the said 25% of the suit claim viz., Rs.1,35,900/- has since been deposited/complied with, the said interim order is not a final one because of the fact that notice has been ordered to the Respondents returnable by four weeks and that the Registry has been directed to post the case after service of notice and viewing the entire gamut of facts and circumstances encircling the present case in a conspectus fashion this Court without expressing any opinion on the merits of the case on the basis of Equity, Fair Play and Good Conscience, exercising its judicial discretion directs the Petitioners/Appellants/Defendants to deposit another 25% of the suit claim viz., Rs.1,35,900/- to the credit of the suit in O.S.No.178 of 2004 on the file of the trial Court within a period of three weeks from the date of receipt of copy of this Order and the Petitioners/Appellants/Defendants are directed to report compliance before this Court thereafter. The Respondent/Plaintiff is permitted to withdraw 25% of the suit claim (without furnishing security) already deposited before the trial Court by projecting necessary payment out Application as per Rule 166 of Civil Rules of Practice. Another 25% of suit amount when deposited by the Petitioners/Appellants as directed by this Court within the time specified, the said amount is ordered to be invested by the trial Court in anyone of the Nationalised Banks (since it is a Suitors money) for a period of two years in Fixed Deposit or Reinvestment Scheme (whichever is yielding more returns) and to renew the same thereafter if situation so warrants. The Registry is directed to list the matter thereafter.