IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.S.SATHEESACHANDRAN FRIDAY, THE 26TH MARCH 2010 / 5TH CHAITHRA 1932 WP(C).NO. 25719 OF 2008(J) -------------------------- {OS.89/2008 OFTHE PRINCIPAL SUB COURT, PALAKKAD} .................... PETITIONER(S): --------------- DEVASSY, S/O.POINCHU,KOLLANOOR THARAYIL, KOTTEKKAD, KUTTOOR, THRISSUR DISTRICT. BY ADV. SRI.T.KRISHNANUNNI, SENIOR ADVOCATE SRI.SAJU.S.A RESPONDENT(S): --------------- 1. ABDULLA KOYA HAJI S/O. KUNHIKOYA, 'ABITHA MANZIL,'NADUVATTOM, KOZHIKODE DISTRICT. 2. KHADEEJA, W/O. ABDULLA KOYA HAJI DO..DO.. 3. M.KUNHIKOYA, S/O.ABDULLA KOYA HAJI DO..DO.. ADV. SRI.V.CHITAMBARESH, SENIOR ADVOCATE FOR R1 & R2 SRI.K.M.FIROZ FOR R1 & R2 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ALONG WITH CRP NO.680 OF 2008 ON 05/03/2010, THE COURT ON 26/03/2010 DELIVERED THE FOLLOWING: WP(C).NO. 25719 OF 2008(J) :: 2 :: APPENDIX PETITIONERS' EXHIBITS: EXT.P1: TRUE COPY OF THE PLAINT IN O.S.NO.89/2008 ON THE FILE OF THE COURT OF SUBORDINATE JUDGE OF PALAKKAD DATED 14.02.2008. EXT.P2: TRUE COPY OF THE AGREEMENT ENTERED INTO BETWEEN THE RESPONDENTS AND THE 1ST PLAINTIFF DATED 26.03.2007. EXT.P3: TRUE COPY OF THE I.A.1759/2008 IN O.S.NO.89/2008, SUB COURT, PALAKKAD WITH READABLE COPY. EXT.P4: TRUE COPY OF THE COUNTER STATEMENT DATED 28.06.2008 IN I.A.1759/2008 IN O.S.89/2008, SUB COURT, PALAKKAD BY THE PLAINTFFS. EXT.P5: TRUE COPY OF THE MEMO SUBMITTED BY THE COUNSEL FOR THE PLAINTIFFS ALONG WITH THE DOUCMENTS DATED 30.07.2008. EXT.P6: TRUE COPY OF THE WRITTEN STATEMENT FILED BY THE DEFENDANTS IN O.S.NO.89/2008, SUB COURT, PALAKKAD DATED 20.06.2008. RESPONDENTS' EXHIBITS: NIL //true copy// P.S. To Judge SK/- S.S. SATHEESACHANDRAN, J. 'CR' = = = = = = = = = = = = = = = = = = = = W.P.(C)No.25719 of 2008 & C.R.P.No.680 of 2008 = = = = = = = = = = = = = = = = = = = = Dated this the 26th day of March, 2010. JUDGMENT Both the writ petition and revision are filed by the second plaintiff in O.S.No.89/08 on the file of the Sub Court, Palakkad. The above suit was one for specific performance of an agreement for sale, and the respondents are the defendants. The writ petition is filed challenging the order passed in Ext.P3 application filed by the defendants by which the learned Sub Judge directed the plaintiffs to deposit the balance sale consideration due within the time limit fixed. Consequent to the non-deposit of the balance sale consideration within the time fixed, as ordered by the court, the suit was dismissed. That order dismissing the suit is challenged in the revision. 2. Short facts germane for consideration in the writ petition and also the revision can be summed up thus: Ext.P2 agreement dated 26.3.2007 was entered with the defendants by the second plaintiff on behalf of his son, the first plaintiff, who is working abroad, for purchase of the plaint schedule properties. A sum of Rs.75 lakhs W.P.(C)No.25719 of 2008 & C.R.P.No.680 of 2008 :: 2 :: out of the sale price fixed was paid when the agreement was entered into fixing a time limit for execution of the sale deed on or before 22.1.2008, on payment of the balance sale consideration. The defendants have also agreed to produce the original title deeds and also furnish such security demanded by defendants to dispose by sale the interest of some of the vendors, who are minors. Imputing default on the part of the defendants in completing the sale, suit was laid seeking a decree of specific performance with an alternative prayer for refund of the sale price paid with interest, in case specific performance of contract is found not feasible. The defendants, on appearance, filed Ext.P3 application seeking a direction from the court to compel the deposit of the balance sale price due under Ext.P2 agreement contending that the delay in completion of the sale was due to the paucity of funds with the plaintiffs for completion of the contract. Ext.P4 counter was filed by the plaintiffs, in which disputing the allegations imputed W.P.(C)No.25719 of 2008 & C.R.P.No.680 of 2008 :: 3 :: by the defendants, they contended that they will suffer monetary loss, if the balance sale consideration of more than Rs.1 crore is kept idle on deposit. But if the claim of the defendants is bona fide, on production of convincing documents regarding their title, it was stated, they will deposit the balance price and get the sale deed executed. In Ext.P3 application, after filing of such counter, the learned Sub Judge passed an order on 28.6.2008 directing the plaintiffs “to deposit the balance sale consideration by 5.7.2008, and the defendants to produce original title deed for perusal on 5.7.2008”. On the request from the plaintiffs' counsel for time to deposit the sum, that IA was adjourned to 15.7.2008 and then to 30.7.2008. On 30.7.2008 since the amount ordered was not deposited, as undertaken (according to the court below) by the counsel for the plaintiffs the suit was dismissed under Section 151 of the CPC. As indicated earlier, the order dated 28.6.2008 passed on Ext.P3 application directing the plaintiffs to deposit the balance sale consideration is W.P.(C)No.25719 of 2008 & C.R.P.No.680 of 2008 :: 4 :: challenged in the writ petition, and the dismissal of the suit by order dated 30.7.2008 in the revision. 3. I heard the counsel on both sides. 4. The learned counsel for the plaintiffs, Senior Counsel Sri.T.Krishnanunni assailed the orders impugned in the writ petition and the revision contending that readiness and willingness on the part of the plaintiffs in a suit for specific performance, as covered by Section 16(c) of the Specific Relief Act, is a relevant factor to be determined in the trial of the suit and at any rate, the plaintiffs need show only their financial ability for performance of the contract of sale during the pendency of the suit. Plaintiffs have produced Ext.P5 series, documents issued by the bank evidencing the financial capacity of the first plaintiff, but, according to the counsel, those materials were ignored and discarded by the court while passing the order dismissing the suit on the premise that the plaintiffs' counsel after 'undertaking' to tender the deposit, had failed to do so. The counsel cannot give such W.P.(C)No.25719 of 2008 & C.R.P.No.680 of 2008 :: 5 :: an 'undertaking' and if at all any representation was made by the counsel as to tendering of deposit subsequent adjournment granted by the court would indicate the submissions construed by the court as an 'undertaking' given by the counsel on 28.6.2008 never continued to be in force, according to the counsel. The court below has passed the order dismissing the suit invoking Section 151 CPC on the premise that the plaintiffs after having given an 'undertaking' to make the deposit flouted and violated it, but such an order non-suiting them was passed, according to the counsel, without even giving an opportunity to show that there was no 'undertaking' and non-compliance of any order passed by the court. 5. The learned counsel for the plaintiffs further submitted that some minors too, admittedly, have right over the property covered by Ext.P2 agreement for sale, and without obtaining permission from the court for sale of such minors' interest by taking proceedings under the Guardians and Wards Act, 1890, there could not be a W.P.(C)No.25719 of 2008 & C.R.P.No.680 of 2008 :: 6 :: completion of the sale under Ext.P2 agreement. The defendants have not taken any steps to get such permission from the court for sale of the minors' interest in the property and Ext.P3 petition was filed by them to wriggle out of the agreement of sale as the land value has increased considerably after Ext.P2 agreement had been entered into by the parties, is the submission of the counsel. The impugned orders are liable to be set aside and the suit has to be restored to file providing an opportunity to the plaintiffs to establish their case for the reliefs claimed, submits the counsel. 6. Per contra, the learned counsel for the respondents, Senior Counsel Sri.Chidambaresh contended that no interference with the dismissal of the suit, in the circumstances involved in the case in exercise of the revisional jurisdiction is called for. Inviting my attention to Section 16(c) of the Specific Relief Act, it is submitted by the counsel that the court which is approached to grant equitable relief of specific performance is empowered to W.P.(C)No.25719 of 2008 & C.R.P.No.680 of 2008 :: 7 :: call upon the party seeking such relief to deposit the balance sale consideration to show his readiness and willingness to complete the sale. When such an order has been given and if the party defaults to comply with such order, it is open to the court to non-suit that party and decline him the relief canvassed for, is the submission of the counsel. Relying on N.P.Thirugnanam v. Dr.R.Jagan Mohan Rao {1995(5) SCC 115}, the learned counsel urged that when an 'undertaking' had been given, as in the present case, by the counsel for the plaintiffs agreeing to comply with the order passed on Ext.P3 to deposit the balance sale consideration and that 'undertaking' had been flouted despite granting of several opportunities, the court was fully justified in dismissing the suit. Reliance is placed by the counsel on Rita Markandey v. Surjit Singh Arora {[1996] 6 SCC 14} and {2007 (3) KLT 888}, which had been relied on by the court below as well in the impugned order dismissing the suit, to show the authority of the court to pass such W.P.(C)No.25719 of 2008 & C.R.P.No.680 of 2008 :: 8 :: drastic orders for non-suiting the plaintiffs. The argument canvassed by the learned counsel for the petitioner that there was no 'undertaking' as spelt out in the order of the learned Sub Judge is impeached and questioned by the counsel contending that such a plea cannot be pressed into service as it has to be challenged by filing an appropriate petition before the court which passed the order as to the 'undertaking' given. When an 'undertaking' given to the court is flouted, the suit itself can be struck off from the file, is the submission of the counsel, relying on Parukutty Amma v. Thankamma Amma {1988 KLT 883} and Mangalam v. Velayudhan Asari {1992(2) KLT 553}. It was further urged that the writ petition filed against the order dated 28.6.2008 in Ext.P3 petition after the expiry of nearly one month and that too after the dismissal of the suit on 30.7.2008 is not maintainable. According to the learned counsel, an interim order passed in the suit cannot be challenged by way of a writ petition after the dismissal of the suit. W.P.(C)No.25719 of 2008 & C.R.P.No.680 of 2008 :: 9 :: Placing reliance is placed on Surya Dev Rai v. Ram Chander Rai {2003(3) KLT 490}, maintainability of the revision is impeached by the counsel contending that a revision will not lie against the final judgment passed in a suit. The remedy of the plaintiffs after the dismissal of the suit is by an appeal and not by way of a revision, is the submission of the counsel. Reliance is placed on Shiv Shakti Co-operative Housing Society v. Swaraj Developers {2003(2) KLT 503] and Vidyodaya Trust v. Mohan Prasad {2006 (4) KLT 1 (SC)} to buttress the challenge that revision is not maintainable contending that the proviso to S.115 of the Code bars entertainability of a revision against the order dismissing the suit. Maintainability of the writ petition and also the revision is challenged on another ground that both of them have been presented by the second plaintiff, who was only an agent of the first plaintiff in Ext.P2 agreement of sale. Since the principal, the first plaintiff, is not a party to the writ petition and revision, and no challenge had been raised by W.P.(C)No.25719 of 2008 & C.R.P.No.680 of 2008 :: 10 :: him against the orders passed by the court including the dismissal of the suit, according to the counsel, both the writ petition and the revision are liable to be dismissed in limine. 7. I have considered the rival submissions made by the counsel. Maintainability of the revision impeaching the order passed by the court below dismissing the suit is raised on the ground that no revision will lie against that order. Proviso to Section 115 of the Code with reference to Shiv Shakti Co-operative Housing Society's case [2003(2) KLT 503} and Surya Dev Rai's case {2003 (3) KLT 490} has been pressed into service to contend that revision is not maintainable. I cannot agree. The court below, for whatever reasons disposed of the suit by a final order. That order has terminated the proceedings and, so much so, the applicability of the proviso to Section 115 of the Code cannot be pressed into service to challenge the maintainability of the revision. The learned counsel for the respondents has relied on the observations W.P.(C)No.25719 of 2008 & C.R.P.No.680 of 2008 :: 11 :: in paragraph 32 of the decision in Shiv Shakti Co- operative Housing Society's case [2003(2) KLT 503} to canvass for the proposition that the question on the maintainability of the revision has to be decided by examining whether an order in favour of the party applying for revision would have given finality to suit the or other proceedings. If only the answer is yes, then alone the revision is maintainable, is the submission of the counsel. The learned counsel is not correct, as the Apex Court was considering the scope of interim orders and challenge against them by way of revision and not against a final order by which the suit or other proceedings had already been terminated. The observations of the apex court in the very same paragraph would clear off any lingering suspicion on the applicability of the proviso to Section 115 of the Code that it has been considered only in relation to a challenge against an interim order, and not against a final order which had terminated the proceedings. The apex court has observed thus; W.P.(C)No.25719 of 2008 & C.R.P.No.680 of 2008 :: 12 :: “If the impugned order is of interim in nature or does not finally decide the lis, the revision will not be maintainable. The legislative intent is crystal clear. Those order, which are interim in nature, cannot be the subject matter of revision under S.115”. 8. Challenge raised by the senior counsel Sri.Chidambaresh, relying upon Surya Dev Rai's case {2003 (3) KLT 490} to contend that the decision is an authority explaining that the new proviso inserted in Section 115 of the Code of Civil Procedure under Act 46 of 1999 interdicted this court from exercising the powers of its revisional jurisdiction even when the order impugned is a final order terminating the proceedings as the reversal of that order has the effect of revival of the proceedings, has no merit at all. Clause (b) of the proviso to Section 115 had been deleted and the new proviso, as at present, was inserted under the Amendment Act, 1999 which came into force on July 1, 2004 on the basis of the recommendations made by the Malimath Committee, to curtail and limit the scope of interference against orders in interlocutory W.P.(C)No.25719 of 2008 & C.R.P.No.680 of 2008 :: 13 :: applications, which if entertained, could prolong the litigation. What is the impact of that amendment in Section 115 of the Code is clearly stated in Surya Dev Rai's case {2003 (3) KLT 490} relied by the counsel in the following terms: “The effect of the erstwhile Clause (b) of the proviso being deleted and a new proviso having been inserted, is that the revisional jurisdiction, in respect of an interlocutory order passed in a trial or other proceedings, is substantially curtailed.” (emphasis supplied) 9. The Apex Court in Surya Dev Rai's case considered whether the interdiction placed in the revisional jurisdiction of the High Court under Section 115 of the Code, inserting a new proviso therein, has in any way limited or fettered the powers conferred on the High Court under Article 227 of the Constitution of India to examine the correctness of an interim order passed in a pending suit or proceeding. Subject to the guidelines W.P.(C)No.25719 of 2008 & C.R.P.No.680 of 2008 :: 14 :: given in that decision, which are only illustrative and not exhaustive, it was held that the amendment inserting the new proviso under Section 115 of the Code cannot and does not affect, in any manner, the jurisdiction of the High Court under Articles 226 and 277 of the Constitution. Reliance placed by the counsel on the above decision to contend that revision against a final order terminating the proceedings even if found to be vitiated by jurisdictional infirmity contending that the new proviso added to the Section interdicted the court from exercising the revisional jurisdiction is unworthy of any merit. The new proviso inserted is applicable only in the case of interlocutory orders in a trial or other proceeding and not against a final order, as has been clearly stated in Surya Dev Rai's case {2003 (3) KLT 490}. 10. Since the order impugned is a final order terminating the suit and not an interim order in a pending proceeding, the challenge raised on the maintainability on that count is meritless. W.P.(C)No.25719 of 2008 & C.R.P.No.680 of 2008 :: 15 :: 11. Learned counsel for the respondents has raised a challenge as to the competency of the revision petitioner, who is stated to be an agent alone, which, however, is disputed by the opposite counsel, that a revision, at his instance, against the order passed by the court below is not maintainable. The revision petitioner is the 2nd plaintiff in the suit and the 1st plaintiff is his son. The agreement of sale giving the right to sue for, specific performance, on its breech, was entered by the 2nd plaintiff on behalf of his son, the first plaintiff, and the defendants. The defendants have received money, as part of the sale consideration, from the 2nd plaintiff, who is prosecuting the suit as the power of attorney of the 1st plaintiff as well. I do not find any reason to doubt the competency of the revision petitioner to challenge the order passed by the court below dismissing the suit. Even assuming that he has no competency if it is disclosed that the order passed by the court below is per se illegal and it is so brought to the notice of the court by a party to the suit supervisory jurisdiction W.P.(C)No.25719 of 2008 & C.R.P.No.680 of 2008 :: 16 :: vested with this court demand and mandate annulling that order and passing orders necessary to advance the ends of justice. 12. The writ petition filed as against the order passed by the court directing the plaintiff to deposit the balance sale consideration within one week from the date of that order has been challenged as not maintainable since the suit itself has been dismissed by a subsequent order which has been challenged in the revision. As on the date when the writ petition was filed against an interim order, the suit had been dismissed of course, affects its entertainability. However, as in the revision filed challenging the final order dismissing the suit, the correctness, regularity and legality of interim orders leading to such final order can also be gone into, the attack on the entertainability of writ petition has got only academic value and not decisive at all. 13. On the facts presented and disclosed by the impugned order itself, what is noticed is that the court W.P.(C)No.25719 of 2008 & C.R.P.No.680 of 2008 :: 17 :: below has non-suited the plaintiff passing an order imputing that an 'undertaking' given by the plaintiff's counsel before the court had been violated. The counsel for the plaintiff had conceded to deposit the balance sale price, but it was not complied with, is construed as a flouting of an 'undertaking' in passing the order of dismissal of the suit. The learned counsel for the respondent has been asked to enlighten whether there is any provision in the Code permitting the court to non-suit the plaintiff under the circumstances indicated in the order of the court below. Though there is no express provision in the Code, according to the learned counsel, the court has ample jurisdiction to dismiss the suit if the 'undertaking' given is not complied with. At this stage, assuming that there was an 'undertaking' and it was flouted and an order had been passed by the court dismissing the suit, in the absence of a provision in the Code permitting the court to do so, it can be construed only as an order in exercise of inherent powers vested in W.P.(C)No.25719 of 2008 & C.R.P.No.680 of 2008 :: 18 :: the court under Section 151 of the Code, as no other provision permits such dismissal. When that be so, the order impugned falling under Section 151 of the Code, no doubt, is amenable to a challenge by way of a revision provided, jurisdictional infirmity in passing of such an order is made out. So on that count also, the revision is perfectly maintainable. 14. Now, on the Propriety and correctness of the order passed by the court dismissing the suit for the reason that the 'undertaking' given by the plaintiff's counsel was not complied with, indisputably, there is no specific provision in the Code empowering the court to pass such order of dismissal. The learned Sub Judge has relied on two decisions, both of them rendered under Order 11 Rule 21 of the Code Parukutty Amma's case {1988(1) KLT 883} and Mangalam's case {1992(2) KLT 553} as empowering the court to dismiss a suit under the circumstances indicated in the order. Both the decisions rendered by this court related to striking of W.P.(C)No.25719 of 2008 & C.R.P.No.680 of 2008 :: 19 :: defence, in the former Parukutty Amma's case {1988 (1) KLT 883} invoking Section 151 and also Order VI Rule 16 of the Code. Striking out of pleadings is governed by Order VI Rule 16 Code and striking out defence dismissal of suit under Order XI Rule 21 of the Code. In the present case, striking out pleadings under Order VI Rule 16 is totally inapplicable for dismissing the suit. Striking out a defence or dismissing the suit for non- compliance with an order for discovery under Order XI Rule 21 of the Code can be proceeded only after an opportunity is extended to the party who has not complied with the order of discovery, inspection or furnishing of answers as directed. Without hearing him the court cannot dismiss the suit if it is the plaintiff, and strike out the defence if it is the defendant who has not complied with the discovery or inspection and to furnish answers to the interrogatories. The decisions relied by the court below have no applicability nor any of them is an authority recognising the power of a court to dismiss a suit for W.P.(C)No.25719 of 2008 & C.R.P.No.680 of 2008 :: 20 :: flouting an 'undertaking' given by the plaintiff or his counsel, even assuming such an undertaking had been given. 15. Placing emphasis on the readiness and willingness to be pleaded and proved by a party seeking specific performance of a contract before the court as stipulated in Section 16(c) of the Specific Relief Act, the learned counsel for the respondents has contended that the court has ample power to direct the plaintiff to deposit the balance sale consideration and if that is not complied with within the time fixed it can non-suit the plaintiff. Some of the observations contained in the decision in N.P.Thirugnanam v. Dr.R.Jagmohan {1995 (5) SCC 115} are relied to contend that the court can take into consideration the conduct of the plaintiff prior and subsequent to the filing of the suit, to consider the readiness and willingness on his part to get the relief of specific performance. Observations made by Apex Court relied by