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Madras High Court · body

2014 DIGILAW 2220 (MAD)

R. Sankaranarayanan v. V. Elumalai

2014-07-23

T.MATHIVANAN

body2014
Judgment 1. The fair and decretal order, dated 8.10.2012 and made in I.A.No.1050 of 2010 in O.S.No.452 of 2009 on the file of the learned Subordinate Judge, Tambaram are under challenge in this memorandum of civil revision. 2. The revision petitioner herein is the defendant in the suit in O.S.No.452 of 2009, whereas the respondent is the plaintiff. 3. The respondent/plaintiff had originally filed the suit in O.S.No.159 of 2004 as against the revision petitioner herein on the file of the learned Subordinate Judge, Chengalpattu, seeking the relief of specific performance of contract of sale agreement, dated 30.11.2003 and also for costs. 4. The suit was contested by the revision petitioner herein and the other defendants 2 and 3 by filing their respective written statements. Subsequent to this, the above said suit was transferred to the file of the learned Subordinate Judge, Tambaram and renumbered as O.S.No.452 of 2009. 5. After the formulation of necessary issues based on the pleadings of the parties to the suit, the trial was commenced on 27.7.2006. On that date P.W.1 was examined in chief which was followed by his cross examination. After the completion of his side, D.W.1 was examined in chief on 7.8.2008. 6. Under these circumstances, the revision petitioner/defendant has taken out an application in I.A.No.499 of 2008 under Order 13 Rule 1 and 2 of the Code of Civil Procedure, to receive the documents specified therein. Thereafter, the revision petitioner has filed his additional proof affidavit on 22.8.2008 which was followed by his cross examination. 7. At this stage, on 31.8.2010, the revision petitioner/defendant has taken out another application in I.A.No.1050 of 2010 under Order 12 Rule 6 of the Code of Civil Procedure to pass a judgment by dismissing the suit with exemplary costs. 8. That application was contested by the respondent/plaintiff by filing his counter statement. 9. 7. At this stage, on 31.8.2010, the revision petitioner/defendant has taken out another application in I.A.No.1050 of 2010 under Order 12 Rule 6 of the Code of Civil Procedure to pass a judgment by dismissing the suit with exemplary costs. 8. That application was contested by the respondent/plaintiff by filing his counter statement. 9. After hearing both sides, the learned Subordinate Judge, Tambaram, has proceeded to dismiss that application on 8.10.2012 on the following grounds:- “Since there is a legal proceedings in O.S.No.309 of 2004 before the District Munsif, Ambattur, which has been relied upon by the plaintiff/respondent and the plaintiff has taken steps to bring the records pertaining to the suit in O.S.No.309 of 2004 from the file of the District Munsif, Ambattur and the same has been received by this Court, judgment could be pronounced only after analysing all the oral and documentary evidences.” 9a. Challenging the legality of the order, dated 8.10.2012, the defendant has approached this court with this memorandum of civil revision. 10. Heard Mr. T.L. Ram Mohan, learned Senior Counsel appearing on behalf of Mr. R. Subramanian, who is on record for the revision petitioner/defendant and Mr. N.S.N. Krishnakumar, learned counsel appearing for the respondent. 11. It may be significant to note here that though originally the suit was instituted as against the revision petitioner/defendant along with two other defendants, in view of the order passed by this Court, dated 24.2.2006 in C.R.P.No.42 of 2006, the defendants 2 and 3 were deleted from the suit and therefore, presently the revision petitioner/defendant alone has been contesting the suit. 12. As per the case of the respondent/plaintiff, the revision petitioner/defendant is the owner of the land measuring 1804 sq.ft. comprised in S.No.72/A, which has been described in the plaint schedule. 13. The revision petitioner/defendant's wife and son, who were the defendants 2 and 3 originally in the suit had agreed to sell the suit property in favour of the respondent/plaintiff for a sale consideration of Rs.3,30,000/- in the absence of the revision petitioner/defendant and executed an undertaking on 26.11.2003 and on the same date they received a sum of Rs.50000/-by way of a cheque in the name of the revision petitioner/defendant and a cash of Rs.5000/- totalling a sum of Rs.55000/- as an advance towards the part of the sale consideration. 14. 14. They both had agreed to execute a registered sale deed in favour of the respondent/plaintiff in respect of the suit property through the revision petitioner/defendant after the receipt of the balance of Rs.2,75,000/-. 15. When the respondent/plaintiff had requested Mrs. Subbalakshmi, who is the wife of the revision petitioner/defendant to register and execute the sale deed after receiving the balance of sale consideration she and her son failed and neglected to execute and register the sale deed and therefore, the respondent/plaintiff was constrained to file the above suit to direct the revision petitioner/defendant to execute and register the sale deed in his favour or his nominees in respect of the suit property after the receipt of balance of sale consideration of Rs.2,75,000/- as per the agreement, dated 30.11.2003. 16. The revision petitioner/defendant had ultimately denied the execution of an undertaking by his wife and son on 26.11.2003 in favour of the respondent/plaintiff and equally he has also denied the alleged execution of the sale agreement, dated 30.11.2003 by him in favour of the respondent/plaintiff. 17. It is also the specific case of the revision petitioner/defendant that no cause of action is available for the respondent/plaintiff to maintain the suit as against him and that his wife and son are not the owners of the property and therefore, the question of selling the property by them in favour of the respondent/plaintiff would not arise. 18. It is also his specific case that he has not authorised either his wife or son to sell the property, which stands in his name specifically in favour of anybody else much less in favour of the respondent/plaintiff. 19. As has been stated in the foregoing paragraphs, after the formulation of necessary issues based on the material objects, the respondent/plaintiff was examined as P.W.1. The specific admission of the respondent/plaintiff made in his cross examination has given a cause of action for the revision petitioner/defendant to file an application under Order 12 Rule 6 of the Code of Civil Procedure to pass a judgment on admission by dismissing the suit with exemplary costs. 20. On perusal of the cross examination of P.W.1, dated 4.8.2006, it is revealed that he has admitted Ex.B.1 petition sent by him to Mr. R. Subramanian, learned counsel appearing for the revision petitioner/defendant . 21. 20. On perusal of the cross examination of P.W.1, dated 4.8.2006, it is revealed that he has admitted Ex.B.1 petition sent by him to Mr. R. Subramanian, learned counsel appearing for the revision petitioner/defendant . 21. He has also admitted that in Ex.B1, it is stated that an agreement was prepared by him on 30.11.2003 and he has also equally admitted that it was not directly sent to Pune where the revision petitioner/defendant was staying at that time. 22. It is his specific admission in his cross examination that on 30.11.2003 he had not seen the revision petitioner/defendant. (The case of the respondent/plaintiff is that on 30.11.2003, the revision petitioner/defendant had executed an agreement of sale in his favour). 23. Besides this, the following are the specific admissions made by the respondent/plaintiff in his cross examination, dated 28.8.2006:- a. I have not seen the defendant ever before I saw him in the court for the first time. b. I have not entered into any agreement directly with the first defendant and therefore, I have not stated anything about this. Even in my proof affidavit also, I have not stated that I had entered into an agreement with the first defendant. c. In Ex.A4 notice, I have asked the money paid by me to be refunded and did not ask the defendant to execute the sale deed. 24. Admission of the respondent/plaintiff in his cross examination, dated 14.11.2006. a. I have not stated in Exs.A4 and A6 that I had spoken to Sathyanarayanan (revision petitioner/defendant) over phone. b. In Ex.A4 notice, an amount of Rs.55000/-was asked to be refunded, otherwise, legal action would be initiated both in civil as well as in criminal. c. In Ex.A1 Subbalakshmi and Chandrasekar had given an undertaking that they would take the responsibility for Rs.55000/-. Ex.A2 draft agreement was prepared by him for the purpose of availing loan. No suit was filed to recover the amount. 25. In the proof affidavit, it is stated that the defendant's wife and son had agreed to sell the property through the defendant on receipt of the balance sale consideration. 26. In Ex.A1 the defendant's wife and son had agreed to sell the property for a sum of Rs.3,30,000/- but the defendant had not directly told him to sell the property. Ex.A6 is the first notice sent to the defendant. 26. In Ex.A1 the defendant's wife and son had agreed to sell the property for a sum of Rs.3,30,000/- but the defendant had not directly told him to sell the property. Ex.A6 is the first notice sent to the defendant. In the said notice, it is stated that the defendant had entered into an agreement of sale with him. But he never entered into agreement of sale with the defendant. 27. Admission of the plaintiff in his cross examination, dated 11.12.2006. a. No notice was sent directly to the defendant demanding him to execute the sale deed. But he had contacted him over phone and it has not been stated in the proof affidavit. 28. Admission of the respondent/plaintiff in his cross examination, dated 18.1.2007:- a. In the complaint, dated 7.1.2004 lodged before the Kottur Police Station the name of Sathyanarayanan (defendant) was not mentioned. There is no direct document to say that the defendant had agreed to execute the sale deed in respect of his property for a sum of Rs.3,30,000/-. I have not produced any agreement with the defendant before the High Court, Chennai. 29. On coming to the instant case on hand, Mr. T.L. Ram Mohan, learned Senior Counsel has argued that specific admissions made by the respondent/plaintiff would shake the very root of the averments of the plaint. 30. At the time of admission of the suit, the respondent/plaintiff had made an endorsement on the plaint saying that he would produce the original of Ex.A2 at the time of trial and only based on his endorsement, the suit was numbered. 31. Had it been declared by the respondent/plaintiff that Ex.A2 was only a draft, the suit would not have been numbered and since it was numbered based on vexatious undertaking given by the respondent/plaintiff, the revision petitioner/defendant had to face difficulties during the last six years from the date of institution of the suit. 32. He has also argued that the respondent/plaintiff had misused the court and had also misled the court and more particularly he had played fraud upon the court and that the conduct of the respondent/plaintiff was a sheer abuse of process of court. 33. On the other hand, Mr. 32. He has also argued that the respondent/plaintiff had misused the court and had also misled the court and more particularly he had played fraud upon the court and that the conduct of the respondent/plaintiff was a sheer abuse of process of court. 33. On the other hand, Mr. N.S.N. Krishnakumar, learned counsel appearing for the respondent has adverted to that during the trial, after the completion of the evidence on the part the plaintiff, the process of recording evidence on the part of the revision petitioner/defendant was commenced and at that time, the revision petitioner/defendant had opted to file this application invoking the provisions of Order 12 Rule 6 C.P.C. for the purpose of procrastinating the proceedings and therefore, the petition itself is deserved to be dismissed. 34. He has also maintained that after going through the averments of the affidavit filed in support of the petition as well as the counter statement filed by the respondent/plaintiff and after striking the balance, the learned trial Judge has rightly dismissed that application on the ground that the judgment would be pronounced after analysing the evidences both the oral and documentary and at that stage it was not fair on the part of the trial court to dismiss the suit based on the admission made by the plaintiff. 35. Mr. N.S.N. Krishnakumar, learned counsel appearing for the respondent has also argued that while dismissing the petition in M.P.No.2 of 2007 in C.R.P.PD.No.1048 of 2007, this Court (High Court) had observed that in the plaint in O.S.No.309 of 2004 filed by the defendant before the District Munsif Court, Ambattur, there was a clear admission of sale agreement between the plaintiff and the defendant and therefore, the order passed on 7.6.2007 in C.R.P.PD.No.1048 of 2007 rejecting the plaint was revoked. 36. On perusal of the records, it is obvious that the respondent/plaintiff has filed his proof affidavit along with the following documents. a. Ex.A.1 is the alleged undertaking given by the wife and son of the defendant for the amount paid to them. b. Ex.A.2 is the copy of the alleged agreement, dated 30.11.2003 said to have been entered into between the respondent/plaintiff and the revision petitioner/defendant. c. Ex.A3 is the copy of the plaint in O.S.NO.309 of 2004 alleged to have been filed by the defendant before the learned District Munsif, Ambattur. b. Ex.A.2 is the copy of the alleged agreement, dated 30.11.2003 said to have been entered into between the respondent/plaintiff and the revision petitioner/defendant. c. Ex.A3 is the copy of the plaint in O.S.NO.309 of 2004 alleged to have been filed by the defendant before the learned District Munsif, Ambattur. d. EX.A.4 is the legal notice, dated 23.1.2004 sent to the wife and son of the defendant. e. Ex.A5 is the reply to Ex.A4, whereas Ex.A.6 is the copy of the legal notice, dated 30.6.2004 said to have been sent by the advocate for the plaintiff to the defendant. 37. Ex.A3 appears to be the copy of the plaint in O.S.No.309 of 2004 said to be filed by the revision petitioner Sankara Narayanan as against the respondent/plaintiff and the Sub Inspector of Police attached to the Korattur Police Station seeking the relief of injunction against the first defendant (respondent/plaintiff herein V. Ezhumalai ) restraining him and his wife, his servants and any one working under him from making any personal calls at the residence of the plaintiff and to restrain him from making complaint to Korattur or any other police stations against the family members of the plaintiff namely, wife Subbulakshmi and son Chandrasekar, including the plaintiff (revision petitioner) in regard to the 'agreement-property' of the plaintiff. 38. Ex.A3 is the certified copy of the plaint appears to have been filed by the revision petitioner/plaintiff in O.S.No.309 of 2004 as against the respondent/plaintiff. In this plaint (O.S.No.309 of 2004) the revision petitioner/defendant Sankara Narayanan has admitted that he had entered into an agreement on 30.11.2003 with the respondent/plaintiff for the purchase of the said land at Gowriwakkam. But the above said suit was filed for bare injunction as afore stated. 39. But the present suit in O.S.No.452 of 2009 has been filed by the respondent/plaintiff as against the revision petitioner/defendant seeking the relief of specific performance. 40. As admitted by the respondent/plaintiff, the revision petitioner/defendant is not a party to the alleged undertaking. Ex.A.1 is said to have been executed by Tmt. Subbalakshmi Sankara Narayanan and Chandrasekar, who are the wife and son of the revision petitioner/defendant respectively. But he did not have any direct agreement of sale with the revisions petitioner/defendant. 41. 40. As admitted by the respondent/plaintiff, the revision petitioner/defendant is not a party to the alleged undertaking. Ex.A.1 is said to have been executed by Tmt. Subbalakshmi Sankara Narayanan and Chandrasekar, who are the wife and son of the revision petitioner/defendant respectively. But he did not have any direct agreement of sale with the revisions petitioner/defendant. 41. On perusal of the plaint in the present suit in O.S.No.452 of 2009 excepting in the cause of action paragraph, nowhere in the plaint he has stated that the revision petitioner/defendant had executed a sale agreement with him on 30.11.2003. The admission made by the revision petitioner/defendant in the plaint in O.S.No.309 of 2004 will not give any cause of action for filing the present suit. 42. Ex.A3 the plaint in O.S.No.309 of 2004 will not form any basis to construct the whole edifice of the suit in O.S.No.452 of 2009. 43. In this connection, it has become necessary for this Court to take the assistance of the provisions of Order 12 Rule 6 of the Code of Civil Procedure. Rule 6 to Order 12 enacts as under:- “Rule 6. Judgment on admissions- 1. Where admissions of fact have been made either in the pleading or otherwise, whether orally or in writing, the Court may at any stage of the suit, either on the application of any party or of its own motion and without waiting for the determination of any other questions between the parties, make such order or give such judgment as it may think fit, having regard to such admissions. 2. Whenever a judgment is pronounced under sub-rule(1) a decree shall be drawn up in accordance with the judgment and the decree shall bear the date on which the judgment was pronounced. 44. Based on the provisions of Sub-Rules 1 and 2 of Rule 6 to Order 12, this Court would like to place it on record that for exercising of discretion by the court under Order 12 Rule 6 C.P.C., the admission must be unequivocal. 45. Mr. 44. Based on the provisions of Sub-Rules 1 and 2 of Rule 6 to Order 12, this Court would like to place it on record that for exercising of discretion by the court under Order 12 Rule 6 C.P.C., the admission must be unequivocal. 45. Mr. T.L. Ram Mohan, learned Senior counsel has relied on the following decisions in support his contentions:- a. In Karam Kapahi and others vs. Lal Chand Public Charitable Trust and another ((2010) 4 SCC 753), while speaking on behalf of the Division Bench, A.K. Ganguly, J., has observed in paragraph 41 as under:- “Keeping the width of this provision (i.e. Order 12 Rule 6) in mind this Court held that under this Rule admissions can be inferred from the facts and circumstances of the case (see Lal Mehra v. Kamal Saroj Mahajan , SCC at p. 285, para 8). Admissions in answer to interrogatories are also covered under this Rule (see Mullas's Commentary on the Code, 16th Edition, Vol.II, p. 2177).” 46. Mr. T.L. Ram Mohan, learned Senior Counsel has also argued that despite the suit is captioned as specific performance suit, in fact, it is not so and did not fulfil the basic requirements for filing the suit seeking the relief of specific performance. 47. He has also argued that even in the matter of advance, the amount differs namely Rs.50000/-in cash as in proof affidavit while it is Rs.55000/- by cheque and cash in plaint. The person to whom it was paid has not been examined. 48. With regard to the judgment on admission, the learned Senior Counsel appearing for the revision petitioner/defendant has also placed reliance upon the decision in Payal Vision Limited vs. Radhika Choudhary (2012) 11 SCC 405). 49. In this case, the Division Bench of the Apex Court has observed in paragraph 8 as under:- “8. The above sufficiently empowers the Court trying the suit to deliver judgment based on admissions whenever such admissions are sufficient for the grant of the relief prayed for. 49. In this case, the Division Bench of the Apex Court has observed in paragraph 8 as under:- “8. The above sufficiently empowers the Court trying the suit to deliver judgment based on admissions whenever such admissions are sufficient for the grant of the relief prayed for. Whether or not there was an unequivocal and clear admission on either of the two aspects to which we have referred above and which are relevant to a suit for possession against a tenant is, therefore, the only question that falls for determination in this case and in every other case where the plaintiff seeks to invoke the powers of the Court under Order XII Rule 6 of the CPC and prays for passing of the decree on the basis of admission. Having said that we must add that whether or not there is a clear admission upon the two aspects noted above is a matter to be seen in the fact situation prevailing in each case. Admission made on the basis of pleadings in a given case cannot obviously be taken as an admission in a different fact situation. That precisely is the view taken by this Court in Jeevan Diesels & Electricals Ltd. (supra) relied upon by the High Court where this Court has observed:- “Whether or not there is a clear, unambiguous admission by one party of the case of the other party is essentially a question of fact and the decision of this question depends on the facts of the case. The question, namely, whether there is a clear admission or not cannot be decided on the basis of a judicial precedent. Therefore, even though the principles in Karam Kapahi (supra) may be unexceptionable they cannot be applied in the instant case in view of totally different fact situation” 50. On coming to the instant case on hand, though the admission made by the revision petitioner/defendant in the suit in O.S.No.309 of 2004, such admission obviously cannot be taken as an unequivoval and clear admission for the present case on hand, because, the earlier suit is totally different in fact situation. Therefore, the contention with regard to the admission of the revision petitioner/defendant in O.S.No.309 of 2004 made by the revision petitioner/defendant is not discernible. 51. Therefore, the contention with regard to the admission of the revision petitioner/defendant in O.S.No.309 of 2004 made by the revision petitioner/defendant is not discernible. 51. In an another case, viz., K. Bama v. J. Stephen Selvaraj and others (2013 AIR CC 1940 (MAD), this court has explained the basic requirements of a suit for specific performance in a vivid manner. 52. On coming to the instant case on hand, the respondent/plaintiff has candidly admitted that there is no direct agreement of sale entered into between him and the revision petitioner/defendant and he has also specifically admitted that he had not paid the amount to the revision petitioner/defendant. The specific admissions made by the respondent/plaintiff in his cross examination itself would go to show that the suit itself is not maintainable as against the revision petitioner/defendant in the absence of a privity of contract between the revision petitioner/defendant and the respondent/plaintiff. 53. It is the settled principle of law that no agreement of contract could be enforced against a person, who is not a party to the contract. 54. After assessing the overall circumstances and on considering the admissions made by the respondent/plaintiff in his cross examination this court would find that the suit itself is liable to be dismissed as not maintainable. The trial Court ought not to have taken the plaint on its file and the suit ought not to have been numbered because the revision petitioner/defendant is not a party to the alleged agreement of sale said to have been executed on 30.11.2003 under Ex.A.2. 55. Further, Ex.A.2 is only a draft agreement, which has not been stated anywhere in the plaint except in the cause of action paragraph. As it was argued by the learned Senior Counsel for the revision petitioner, despite an undertaking given by the respondent/plaintiff that he would produce the original agreement of sale, dated 30.11.2003 he had miserably failed to produce the same and he himself has specifically admitted that he had not at all entered into any agreement of sale directly with the revision petitioner/defendant and it is significant to note that originally the defendants 2 and 3 who are the wife and son of the revision petitioner/defendant were deleted in view of the order of this Court as aforestated. 56. 56. Keeping in view of the above facts, the impugned order, dated 8.10.2012 and made in I.A.No.1050 of 2010 in O.S.No.452 of 2009 is deserved to be set aside and the application itself is liable to be allowed. Accordingly, the revision petition is allowed and the impugned order, dated 8.10.2012 and made in I.A.No.1050 of 2010 in O.S.No.452 of 2009 on the file of the learned Subordinate Judge, Tambaram, are set aside and the petition in I.A.No.1050 of 2010 is allowed and in consequence thereof, the suit in O.S.No.452 of 2009 is dismissed with costs throughout.