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Madras High Court · body

2016 DIGILAW 2217 (MAD)

M. Somasundaram v. Vetrivel

2016-07-13

M.DURAISWAMY

body2016
ORDER : 1. Challenging the fair and final order passed in I.A.No.38 of 2015 in I.A.No.1001 of 2011 in O.S.No.616 of 2009 on the file of District Court, Thiruppur, the defendants have filed the above Civil Revision Petition. 2. The plaintiff filed the suit in O.S.No.616 of 2009 for specific performance, permanent injunction and alternatively for refund of advance money. 3. Since the defendants failed to appear before the Trial Court, the Trial Court passed an ex-parte decree on 22.10.2010. Thereafter, the defendants filed an application in I.A.No.1001 of 2011 in O.S.616 of 2009 under Order 9 Rule 13 of the Civil Procedure Code to set aside the ex-parte decree. 4. In the affidavit filed in support of the application in I.A.No.1001 of 2011, the defendants have stated that the ex-parte decree was obtained by the plaintiff by manipulating the court records and playing fraud upon the court. Subsequently, the defendants filed a memo before the Trial Court stating that the matter has been settled out of court and therefore, the application in I.A.No.1001 of 2011 may be dismissed as settled out of court. The said memo was signed by all the defendants and their counsel. The said memo was filed on 21.6.2012 and on the same day, the application in I.A.No.1001 of 2011 was dismissed as settled out of court. 5. Thereafter, the defendants filed an application in I.A.No.38 of 2015 to condone the delay of 270 days in filing the application to restore the application in I.A.No.1001 of 2011, which was dismissed as settled out of court on 21.06.2012. The said application was originally filed before the I Additional District Court, Coimbatore and numbered as I.A.No.332 of 2013. Subsequently, since the Coimbatore Court had no territorial jurisdiction, the suit was transferred to the file of the District Court, Thiruppur and renumbered as I.A.No.38 of 2015. 6. In the affidavit filed in support of the application in I.A.No.38 of 2015, the defendants have stated that they entered into a compromise with the plaintiff and also paid a sum of Rs.16,90,000/- as decided by the Panchayathars and the plaintiff also agreed that he will give up his right over the suit property by withdrawing the suit and the legal action. Further, the defendants have stated that after the dismissal of the application in I.A.No.1001 of 2011, the plaintiff gave evasive reply and failed to honour the commitment. Further, the defendants have stated that after the dismissal of the application in I.A.No.1001 of 2011, the plaintiff gave evasive reply and failed to honour the commitment. In these circumstances, the defendants filed an application in I.A.No.38 of 2015 to restore the application in I.A.No.1001 of 2011. 7. The plaintiff filed his counter denying the averments stated in the affidavit filed in support of the application in I.A.No.38 of 2015. Further, the plaintiff denied the averment that he agreed to withdraw the suit and take steps to set aside the sale deed. The plaintiff has specifically denied that the defendants paid a sum of Rs.16,90,000/- for withdrawing the suit as false. In these circumstances, the plaintiff prayed for dismissal of the application. 8. Before the Trial Court, on the side of the plaintiff, 2 witnesses were examined and 44 documents, Exs.P1 to P44 were marked and on the side of the defendants, there was no oral evidence, however, 4 documents, Exs.R1 to R4 were marked. 9. The Trial Court, taking into consideration the case of both the parties, dismissed the application. 10. Aggrieved over the same, the defendants have filed the above Civil Revision Petition. 11. While dismissing the application, the Trial Court, after perusing the case bundle, found that the application in I.A.No.1001 of 2011 was dismissed on 21.6.2012 on the basis of the memo filed by the defendants on 21.6.2012. The first defendant had executed a sale deed dated 12.11.2012 in favour of the second defendant. Under Ex.P30 sale deed dated 20.6.2012, the plaintiff executed the sale deed in favour of the defendants 1 and 2 in respect of the land measuring 82 cents. After the execution of Ex.P30 sale deed on 20.6.2012, the defendants filed a memo in I.A.No.1001 of 2011 not pressing the said application, since the parties had settled the matter out of court. Ex.R1 Power of Attorney deed was executed by the plaintiff in favour of the first defendant on 20.6.2012. Under Ex.R2 sale deed dated 27.5.2013, the defendants 1 and 2 sold the property to one Eswaramoorthy. Under Ex.R3 sale agreement, the defendants 1 and 2 executed the said document in favour of one Kuppusamy on 30.8.2013. Ex.R4 is the consent document executed by the defendants admitting the correctness of the decree and judgment passed in O.S.No.616 of 2009. Under Ex.R2 sale deed dated 27.5.2013, the defendants 1 and 2 sold the property to one Eswaramoorthy. Under Ex.R3 sale agreement, the defendants 1 and 2 executed the said document in favour of one Kuppusamy on 30.8.2013. Ex.R4 is the consent document executed by the defendants admitting the correctness of the decree and judgment passed in O.S.No.616 of 2009. The 4th defendant in her evidence had also admitted the settlement between the parties and also stated that Ex.R1 power of attorney document was also acted upon. 12. If the parties had settled the matter out of court and in the case of the plaintiff agreeing to withdraw the suit, there is no necessity for the defendants to not press the application filed under Order 9 Rule 13 of the Civil Procedure Code to set aside the ex-parte decree. Only if the decree passed in O.S.No.616 of 2009 is set aside, the plaintiff will have an opportunity to withdraw the suit. In the case of not pressing the application in I.A.No.1001 of 2011, it implies that the decree passed in O.S.No.616 of 2009 is confirmed and that the defendants are not aggrieved over the same. When the defendants have pleaded that the plaintiff had obtained the decree by playing fraud, then, it is for them to establish the plea of fraud by oral and documentary evidences. In the case on hand, the said plea was not established by the defendants in an acceptable manner. 13. The defendants filed a memo before the Trial Court not pressing the application filed under Order 9 Rule 13 of the Civil Procedure Code. The defendants cannot turn around and say that the suit was not settled between the parties hence, the application filed under Order 9 Rule 13 of the Civil Procedure Code should be restored. 14. It is pertinent to note that the defendants have not disputed the signatures found in the memo and also the filing of the memo before the Trial Court. In case the matter was not settled between the parties, the defendants could have approached the Trial Court for restoring the application at the earliest point of time. In the case on hand, they have waited for 9 months for filing the application to restore the application in I.A.No.1001 of 2011, which was dismissed as settled out of court. In case the matter was not settled between the parties, the defendants could have approached the Trial Court for restoring the application at the earliest point of time. In the case on hand, they have waited for 9 months for filing the application to restore the application in I.A.No.1001 of 2011, which was dismissed as settled out of court. The reasoning given by the defendants for the condonation of delay of 270 days in restoring the application was rightly rejected by the Trial Court. 15. It is settled position that in the absence of sufficient cause shown by the petitioners, the delay should not be condoned. 16. In the case on hand, the petitioners-defendants have not given sufficient reason for condoning the delay of 270 days to restore the application. 17. In these circumstances, I do not find any error or irregularity in the order passed by the Trial Court. The Civil Revision Petition is devoid of merits and is liable to be dismissed. Accordingly, the Civil Revision Petition is dismissed No costs.