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2025 DIGILAW 2259 (MAD)

R. Seemon v. R. Vinoth

2025-04-24

R.VIJAYAKUMAR

body2025
ORDER The instant revision petition has been filed under Article 227 of Constitution of India challenging the judgment and decree dated 08.12.2022 made in O.S.No.248 of 2022 on the file of the Sub Court, Melur. 2.The first respondent in the revision petition has filed the above said suit for the relief of specific performance of a sale agreement dated 01.04.2022 said to have been executed by the revision petitioner and the second defendant. 3.As per plaint averments, the suit schedule properties belong to the first defendant namely R.Seemon and he had executed a general power of attorney in favour of the second defendant on 23.07.2008. Based upon the said power deed, the suit sale agreement was entered into by the second defendant in favour of the plaintiff on 01.04.2022 agreeing to alienate the property for a sale consideration of Rs.4,67,200/-. A sum of Rs.4,00,000/- was paid as advance and the period was fixed as three month for completing the sale agreement. 4.It is further averred in the plaint that since the defendants were not coming forward to execute the sale deed, a legal notice was issued on 11.08.2022 and there was no reply from the defendants. Hence, the suit came to be filed. 5.A perusal of the trial Court judgment reveals that both the defendants have remained exparte despite receipt of summons. The plaintiff was examined as PW1 and through him Exhibits A1 to A6 were marked. The trial Court after considering the oral and documentary evidence filed on the side of the plaintiff, arrived at a specific finding that the plaintiff was ready and willing to perform his part of contract and proceeded to decree the suit as prayed for. 6.The present revision petition has been filed by the first defendant in the suit under Article 227 of Constitution of India challenging the judgment and decree on the following grounds. a)Summons were not served upon the first defendant. The second defendant though had received summon, there is no endorsement that he had received the same on behalf of the first defendant also. Merely because the second defendant had signed twice, it does not mean that the second defendant had received the summons, on behalf of the first defendant also. b)Though the first defendant has executed a power deed in favour of the second defendant on 14.12.2006, the same was cancelled on 04.01.2017. Merely because the second defendant had signed twice, it does not mean that the second defendant had received the summons, on behalf of the first defendant also. b)Though the first defendant has executed a power deed in favour of the second defendant on 14.12.2006, the same was cancelled on 04.01.2017. Therefore, on the date when the second defendant entered into the suit sale agreement on 01.04.2022, the power was not subsisting. The second defendant had colluded with the plaintiff and had remained exparte. c)There was a dispute between the first defendant and the second defendant and the second defendant has lodged a police complaint as against the first defendant on 25.03.2022. Based upon the said complaint, the first defendant was summoned by the police to appear on 28.03.2022. The matter was not resolved on the said date. The first defendant has left abroad on 31.03.2002. On the very next date, namely on 01.04.2022, the second defendant is said to have executed a sale agreement in favour of the plaintiff. Therefore, it is clear that a fraud has been played by the second defendant right from inception. d)In view of the cancellation of power deed on 04.01.2017 and the police complaint lodged by the second defendant as against the first defendant on 25.03.2022, there is no possibility of continuing the power deed in favour of the second defendant. e).It is further alleged that the plaintiff is none other than the brother-in-law of the second defendant. Therefore, it is clear that utilising his enmity with first defendant, in order to take revenge, the second defendant has executed this sale agreement in favour of his brother-in-law, namely the plaintiff. There is no proof whatsoever that the sale consideration was received by the second defendant. The entire exercise was carried out only to defraud the first defendant. f).The second defendant and the plaintiff have colluded together and obtained a fraudulent decree from the Court even without service of summons on the first defendant. When the fraud has been played upon the Court, the first defendant need not invoke Order 9 Rule 13 of C.P.C to set aside the exparte decree. He could very well invoke the supervisory jurisdiction of this Court under Article 227 of Constitution of India . When the fraud has been played upon the Court, the first defendant need not invoke Order 9 Rule 13 of C.P.C to set aside the exparte decree. He could very well invoke the supervisory jurisdiction of this Court under Article 227 of Constitution of India . It is further contended that Order 5 Rule 16 or Order 5 Rule 18 of C.P.C has not been properly followed and therefore, there is no proper service of summons. 7.Based upon the above said factual contention, the learned senior counsel appearing for the petitioner had relied upon a judgement of this Court reported in 1995-1-L.W.141 ( Annapoorni Vs. Janaki ) and contended that when the Court finds that a decree suffers from an error of law apparent on the face of the record owing to non-application of mind of the Court, to the relevant principles of law, the Court cannot keep silent and allow the decree to be in force. He had further pointed out that when there is miscarriage of justice, merely because there is an appellate remedy, the Court will not hesitate to invoke Article 227 of Constitution of India . 8.The learned senior counsel for the petitioner also relied upon a judgement of the High Court of Punjab and Haryana at Chandigarh reported in 2011 SCC Online P &H 14709 ( Umarddin and another Vs. Liyakat Ali and another ) dated 20.10.2011 to contend that where summons have not properly served, it cannot be deemed to be a sufficient service. The Court has proceeded to hold that Order 5 Rule 16 or Rule 18 of C.P.C have not been complied with. 9.The learned senior counsel appearing for the petitioner had also relied upon a judgment of our High Court reported in 2024 Supreme (Online)(MAD) 40132 (M.V.Krishna Rao (Deceased and others Vs. K.Shivakumar and others) dated 30.10.2024 and contended that the sale consideration in the present case has been made through cash for a sum of Rs.4,00,000/- which is not permissible in the eye of law. Therefore, the said fact remains unsubstantiated 10.The learned senior counsel also relied upon a judgment of this Court reported in AIR 1995 Madras 42 ( Registrar, Manonmaniam Sundaranar University Vs. Therefore, the said fact remains unsubstantiated 10.The learned senior counsel also relied upon a judgment of this Court reported in AIR 1995 Madras 42 ( Registrar, Manonmaniam Sundaranar University Vs. Suhura Beevi Educational Trust and others to contend that though the plaintiff may be entitled to withdraw or abandon his suit yet, it cannot be considered to be so absolute as to permit or encourage or ratify an abuse of process of Court or fraud to be played upon parties as well as Court. 11.The learned senior counsel had further contended that where it is established that there is abuse of Court process, affecting the parties outside the action takes place, then it amounts to obstructing the due process of judicial proceedings and administration of justice. Such kind of obstruction should not be allowed to be operative even for a moment since it would amount to putting a premium on fraud, collusion and abuse and disillusionment of the efficacy of judicial process and rule of law. 12.The learned senior counsel appearing for the petitioner/first defendant further contended that the facts narrated above will establish that a fraud was played upon the Court and by way of abuse of process of Court, a fraudulent decree has been obtained. The power deed executed by the first defendant in favour of the second defendant was not in existence on the date of sale agreement. The summons were not served upon the first defendant. The power agent has not defended the proceedings and had left the suit as well as the execution proceedings exparte. The plaintiff/decree holder is none other than the brother-in-law of the power agent. All these factors would cumulatively indicate that a decree has been fraudulently obtained from the trial Court. In such circumstances, this Court can very well exercise its power under Article 227 of Constitution of India to set aside the judgment and decree for specific performance. 13.Per contra, the learned counsel for the first respondent/plaintiff had contended that the first defendant had cancelled only the power deed dated 14.12.2016 which granted power to the power agent to purchase properties. However, the power deed dated 23.07.2008 which had granted power to alienate the property, was not cancelled till execution of the sale agreement. The same was cancelled only on 22.07.2024 two years after the decree was passed by the trial Court. However, the power deed dated 23.07.2008 which had granted power to alienate the property, was not cancelled till execution of the sale agreement. The same was cancelled only on 22.07.2024 two years after the decree was passed by the trial Court. Therefore, on the date of the sale agreement and during pendency of the suit, the power deed was in force. 14.The learned counsel for the first respondent had further contended that the second defendant is the power agent of the first defendant. Summons for the first defendant as well as the second defendant were received by the second defendant. The second defendant has also signed twice in the summon to indicate that he is receiving the summons on behalf of the first defendant also. In such circumstances, the contention of the first defendant that the summons were not duly served is not factually correct. 15.The learned counsel for the first respondent had further contended that there are no pleadings whatsoever with regard to the allegation now made by the first defendant in the present civil revision petition. For the first time, these allegations are being made in the revision petition. Some of the documents that are relied upon by the revision petitioner have not been marked before the trial Court. In such circumstances, this Court cannot exercise its power under Article 227 of Constitution of India to consider his revision petition on the basis of certain documents that were not filed before the trial Court. 16.The learned counsel for the second defendant/ power agent had contended that the power of attorney was subsisting on the date of execution of the sale agreement and it continued till the disposal of the suit. The summons were received by the second defendant also on behalf of the first defendant. The first defendant if he had got any grievance, he had to approach the Court either under Order 9 Rule 13 of C.P.C or file an appeal. 17.The learned counsel for the second defendant had relied upon a judgment of the Hon'ble Supreme Court reported in (2022) 10 SCC 477 ( Mohamed Ali Vs. V.Jaya and others ) wherein the Hon'ble Supreme Court has held that the High Court should not invoke its power under Article 227 of Constitution of India . Hence, he prayed for dismissal of the revision petition. 18.Heard both sides and perused the material records. V.Jaya and others ) wherein the Hon'ble Supreme Court has held that the High Court should not invoke its power under Article 227 of Constitution of India . Hence, he prayed for dismissal of the revision petition. 18.Heard both sides and perused the material records. 19.The present revision petition has been filed under Article 227 of Constitution of India to set aside the exparte judgement and decree passed in a suit for specific performance on 08.12.2022. 20.The present civil revision petition has been filed primarily contending that a collusive decree has been obtained by playing fraud upon the Court. According to the petitioner, summons were not served upon the first defendant and the power agent has not defended the proceedings in collusion with the plaintiff. 21.The revision petitioner/first defendant has executed a power deed in favour of his brother/second defendant on 23.07.2008 permitting him to enter into a sale agreement and execute sale deed. This general power of attorney was subsisting on the date of sale agreement dated 01.04.2022 and it was cancelled only on 02.07.2024. Even though there was some dispute between the first defendant and the second defendant which had resulted in police complaint, whether the same would result in automatic cancellation of the power deed is an issue to be decided by the trial Court. 22.As far as service of summons is concerned, this Court has called for the records from the trial Court to verify the same. The second defendant has signed twice in his summon and there is no signature of the second defendant on the back side of the summons meant for the first defendant. When the power deed was subsisting on the date of service of summon, the Court has chosen to send the summons to the power agent namely the second defendant. In case, if the summons have not been served properly and it has resulted in an exparte decree, it could be adjudicated only by filing an application under Order 9 Rule 13 of C.P.C. 23.Whether the second defendant who is brother of the first defendant had colluded with his brother-in-law (plaintiff) in entering into a sale agreement or not, is a factual dispute. It requires pleadings and evidence. This Court in exercise of its power under Article 227 of Constitution of India , cannot enter into the said factual dispute and set aside the decree. It requires pleadings and evidence. This Court in exercise of its power under Article 227 of Constitution of India , cannot enter into the said factual dispute and set aside the decree. As rightly pointed out by the learned counsel for the respondents that as on today, there is no pleadings on the side of the first defendant raising plea of collusion or fraud. Some of the documents which were relied upon by the revision petitioner have not been marked before the trial Court. 24.The Hon'ble Supreme Court in a judgement reported in (2019) 9 SCC 538 ( Virudhunagar Hindu Nadargal Dharma Paribalana Sabai and others Vs. Tuticorin Educational Society and others ) in paragraph No. 12 has held as follows: “12. But courts should always bear in mind a distinction between (i) cases where such alternative remedy is available before Civil Courts in terms of the provisions of Code of Civil procedure and (ii) cases where such alternative remedy is available under special enactments and/or statutory rules and the fora provided therein happen to be quasi-judicial authorities and tribunals. In respect of cases falling under the first category, which may involve suits and other proceedings before civil courts, the availability of an appellate remedy in terms of the provisions of CPC , may have to be construed as a near total bar. Otherwise, there is a danger that someone may challenge in a revision under Article 227 , even a decree passed in a suit, on the same grounds on which the respondents 1 and 2 invoked the jurisdiction of the High court. This is why, a 3 member Bench of this court, while overruling the decision in Surya Dev Rai vs. Ram Chander Rai, pointed out in Radhey Shyam Vs. Chhabi Nath that “orders of civil court stand on different footing from the orders of authorities or Tribunals or courts other than judicial/civil courts.” 25.The learned counsel for the respondent had relied upon a judgment of the Hon'ble Supreme Court reported in (2022) 10 SCC 477 ( Mohamed Ali Vs. Chhabi Nath that “orders of civil court stand on different footing from the orders of authorities or Tribunals or courts other than judicial/civil courts.” 25.The learned counsel for the respondent had relied upon a judgment of the Hon'ble Supreme Court reported in (2022) 10 SCC 477 ( Mohamed Ali Vs. V.Jaya and others ) wherein the Hon'ble Supreme Court in paragraph Nos.19 and 20 has held as follows: “19.Applying the law laid down by this Court in the aforesaid decision to the facts of the case on hand, the High Court ought not to have entertained the revision petition under Article 227 of the Constitution of India against the exparte judgment and decree passed by the learned Trial Court in view of a specific remedy of appeal as provided under the Code of Civil Procedure itself. Therefore, the High Court has committed a grave error in entertaining the revision petition under Article 227 challenging the exparte judgment and decree passed by the learned Trial Court and in quashing and setting aside the same in exercise of powers under Article 227 of the Constitution of India . 20. Even otherwise considering the impugned common judgment and order passed by the High Court, it appears that while setting aside the exparte judgment and decree, the High Court has commented upon the legality and validity of the judgment and decree passed by the learned Trial Court as if the High Court was exercising the appellate jurisdiction against the judgment and decree passed by the learned Trial Court.” 26.In view of the judgments of the Hon'ble Supreme Court, this Court is of the considered opinion that the grounds raised in the present civil revision petition have to be raised by the petitioner before the trial Court by filing appropriate application or by filing an appeal before the Appellate Court. This Court is not inclined to entertain the civil revision petition. 27.With the above said observations, this civil revision petition is disposed of. No costs. Consequently, connected miscellaneous petitions are closed. This Court is not inclined to entertain the civil revision petition. 27.With the above said observations, this civil revision petition is disposed of. No costs. Consequently, connected miscellaneous petitions are closed. 24.04.2025 msa R.VIJAYAKUMAR, J. After pronouncing the order, the learned counsel appearing for the revision petitioner made a request for exclusion of the time spent before this Court while calculating the limitation for approaching the trial Court for filing an application under Order 9 Rule 13 of C.P.C. In case, if the petitioner approaches the trial Court, the period between 28.10.2024 and the date of receipt of copy of this order from this Court shall stand excluded for the purposes of calculating the limitation period.