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2013 DIGILAW 2270 (MAD)

C. Easwaramoorthy v. S. Saraswathy

2013-07-01

C.T.SELVAM

body2013
JUDGMENT :- 1. This Civil Miscellaneous Appeal arises against the dismissal of I.A.No.1623 of 2009 in O.S.No.640 of 2008 by the learned I Additional District Judge, Coimbatore under orders dated 20.10.2010. 2. Revision petitioners are the plaintiffs in O.S.NO.640/2008. They have moved such suit informing that pursuant to agreement of sale dated 18.09.2006, they had paid an advance of Rs.10,00,000/- to the first respondent/first defendant/owner of the property and their readiness and willingness to pay the balance sale consideration of Rs.40,70,000/-. They had also informed of suit in O.S. No.205/2006 on the file of the District Munsif, Avinasi, having been moved by the sixth defendant, seeking partition of the suit property. By way of written statement, the second revision petitioner had contended that the suit property was absolute property of the first respondent/first defendant. In the present suit O.S.No.640/2008, under written statement the first respondent informed her willingness to execute the sale deed upon payment of the balance sale consideration. I Additional District Judge, Coimbatore, had directed payment of the balance sale consideration by the petitioners on or before 31.08.2009. The suit came to be dismissed on the plaintiffs default to do so, on 31.08.2009. Revision petitioners have within time, moved application under Order 9 Rule 9 of C.P.C seeking restoration of the suit dismissed for default. The court below dismissed the petition under orders dated 20.10.2010 thus giving rise to the filing of this appeal. 3. Heard Mr.Gandhi, learned Senior Counsel for the revision petitioners and Mr.K. Govi Ganesan for respondents. 4. A perusal of the order under challenge reveals that a major consideration of the court below has been that its direction to the petitioners/plaintiff to deposit the balance sale consideration had not been complied with within the period stipulated by it. The court below has failed to see that the very dismissal of the suit on 31.08.2009, has come about in circumstances, where the revision petitioners/plaintiffs have pleaded their inability to proceed with the suit, citing the need for transfer of two other suits to be tried along with the suit and informing their intent to take steps in such regard. The court below has failed to see that the very dismissal of the suit on 31.08.2009, has come about in circumstances, where the revision petitioners/plaintiffs have pleaded their inability to proceed with the suit, citing the need for transfer of two other suits to be tried along with the suit and informing their intent to take steps in such regard. The two other suits are O.S.No.205/2006 on the file of District Munsif Court, Avinasi, wherein one of the daughters of the first defendant had sought partition and O.S.No.46/2007 on the file of District Munsif Court, Avinasi, wherein the second respondent/second defendant/husband of the first respondent/ first defendant had sought setting aside of the settlement deed in respect of the suit property, effected by him in favour of the first defendant. The court below has failed to see that in depositing the balance sale consideration as directed by it, the plaintiffs would have been purchasing trouble since title of the first respondent/first defendant to the suit properties had been subject to challenge by her own family members. Though court below has found the revision petitioners to be protracting proceedings, more restrained approach on the part of court is expected in the circumstances above highlighted. There has been no consideration of possibility of grant of relief, if only in the alternative of refund of sum advanced, particularly where the first respondent/ first defendant has through written statement informed her willingness to conclude the sale transaction upon payment of the balance sale consideration. Interests of justice would require that revision petitioners/plaintiffs be afforded an opportunity to agitate their rights on merits. 5. For the aforesaid reasons, this civil miscellaneous appeal is allowed and the order under challenge is set aside. Learned I Additional District Judge, Coimbatore is directed to restore O.S. No.640 of 2008 to file, cause notice to the parties and proceed further in the case in accordance with law. No costs. Connected miscellaneous petition is closed.