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2013 DIGILAW 751 (MAD)

A. Ganesan v. M. M. Paulraj

2013-02-04

D.HARIPARANTHAMAN

body2013
Judgment :- 1. The petitioner is the defendant in O.S.No.173 of 2009 on the file of the District Court, Nagercoil. The respondent is the plaintiff in the aforesaid suit in O.S.No.173 of 2009. 2. An agreement dated 24.01.2008 was entered into between the petitioner and the respondent in relation to the sale of land measuring 21.41 cents at the rate of Rs.2,00,000/- per cent and Rs.10,00,000/-was paid as advance and the remaining amount shall be paid within 8 months. According to the petitioner, since the respondent failed to comply with the conditions of the agreement, the petitioner issued notice in September 2008 rescinding the agreement. Thereafter, the respondent herein filed O.S.No.173 of 2009 for specific performance of the contract. 3. The respondent herein filed I.A.No.503 of 2012 in O.S.No.173 of 2009, seeking permission of the Court to deposit the balance amount. 4. The Trial Court allowed I.A.No.503 of 2012 in O.S.No.173 of 2009 on 07.11.2012. The following is the order passed allowing the interim application: "Counter and disposal. Respondent called absent. No representation from Respondent's side. Respondent called absent. Counter not filed. Petition allowed." 5. The learned counsel for the petitioner has submitted that the order was passed as if no counter is filed in I.A.No.503 of 2012. According to him, the counter affidavit was filed on 29.10.2012 and the same is also recorded in the docket sheet. He has produced the noting made by the Trial Court that counter affidavit was filed. It is also stated that written statement was also filed as early as on 04.01.2010. 6. The only reason given in the order dated 07.11.2012 in I.A.503 of 2012 is that the petitioner herein failed to file counter in interlocutory application. The counter affidavit filed dated 29.10.2012 is enclosed in the typed set of papers and the docket sheet also is enclosed in the typed set of papers. A perusal of the same shows counter affidavit is filed. 7. Therefore, the impugned order is liable to be set aside. Accordingly, the impugned order is set aside and the revision petition is allowed. The matter is remanded back to the Trial Court to consider the matter afresh after hearing both sides and to decide the same in accordance with law. No costs. Consequently, connected miscellaneous petition is closed.