IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED:10.01.2011 Coram: THE HONOURABLE MR.JUSTICE G.RAJASURIA S.A.No.11 of 2011 and M.P.No.1 of 2011 V.Palani ... Appellant/Plaintiff vs. P.Balasubramaniam ... Respondent/Defendant This second appeal is filed against the judgement and decree dated 7.10.2010 passed by the Additional Subordinate Judge, Chengalpattu, in A.S.No.105 of 2006 confirming the judgement and decree dated 15.6.2005 passed by the District Munsif Court, Chengalpattu, in O.S.No.99 of 2002. For Appellant : Mr.G.R.Lakshmanan For Respondent : Mr.S.Parthasarathy,Sr.counsel, for Mr.B.Nedunchezhiyan JUDGMENT This second appeal is filed by the defendant, inveighing the judgement and decree dated 7.10.2010 passed by the Additional Subordinate Judge, Chengalpattu, in A.S.No.105 of 2006 confirming the judgement and decree dated 15.6.2005 passed by the District Munsif Court, Chengalpattu, in O.S.No.99 of 2002, which was filed for declaration and permanent injunction. 2. The parties, for the sake of convenience, are referred to here under according to their litigative status and ranking before the trial Court. 3. Compendiously and concisely the relevant facts absolutely necessary and germane for the disposal of this second appeal would run thus: (a) The plaintiff, who is the appellant herein, filed the suit seeking the following reliefs: https://hcservices.ecourts.gov.in/hcservices/ "(i) to declare that the plaintiff is the absolute owner of the schedule mentioned property by granting a decree of declaration and also pass consequential injunction restraining the defendant, his men, agents, servants, attorneys, successors in office, from any way interfering into the peaceful possession and enjoyment of the schedule described property in any manner. (ii) to pay the cost of the suit. (extracted as such) (b) Written statement was filed refuting and impugning the allegations/averments in the plaint. (c) Whereupon issues were framed by the trial Court. The plaintiff, on his side examined himself as P.W.1 and marked Exs.A1 to A10. On the defendant's side, the defendant examined himself as D.W.1 and marked Exs.B1 to B9. (d) Ultimately the trial Court dismissed the suit. (e) Being aggrieved by and dissatisfied with the judgement and decree of the trial Court, the appeal was filed by the plaintiff for nothing but to be dismissed by the appellate Court confirming the judgement and decree of the trial court. 4. Challenging and impugning the judgements and decrees of the Courts below, the second appeal has been filed on various grounds, along with the following proposed substantial questions of law: "1. Whether the learned appellate judge is correct in shifting the burden of prove the negative on this appellant/defendant by misconstructing the evidence of the appellant/defendant. 2. Whether the lower appellate Court is in error in not following the directions issued by the Hon'ble Court in Civil Revision Petition. 3. Whether the lower appellate Court is correct in placing reliance an Ex.P8, which is a document obtained by the fraud by playing a fraud on the court. 4. Whether the Court's below are entitled to discuss the factual position relating to the sale deeds admittedly executed in favour of the plaintiff/appellant when the said sale deed/execution thereof is not in despite at all. https://hcservices.ecourts.gov.in/hcservices/ 5. Whether the Court's below are correct in giving the finding that defendant/respondent is the owner of plaint schedule mentioned property based on the Ex.P-8, which has been obtained by fraud mis-representation and concealment of facts as evidenced from the E.P.No.95 of 01 papers produce before the Court. 6. Whether the lower appellate Court judgments can be construed to be passed as per the provision of the Civil Procedure Code when admittedly the learned Judge heard arguements only relating to the marking and admissibility and necessity of the E.P.No.95 of 2001 records in the appeal. 7. Whether the lower appellate Court is totally wrong in not considering and not admitting the court documents namely the records in E.P.No.95 of 2001 when admittedly the Court has adjourned the case for perusal of records and passing orders." 5. Heard both sides as to what substantial question of law could be framed in this case. 6. On hearing both sides, I am of the view that the following substantial question of law could be framed: Whether in view of the non-consideration of the relevant points relating to the validity of the judgment and decree passed in O.S.No.5677 of 1996 and the earlier presentation of the plaint and the maintainability of the said suit concerned, the judgments and decrees of the Courts below would stand vitiated? 7. Both sides argued extensively on the above substantial question of law. 8. The learned counsel for the appellant/plaintiff would set forth and put forth his arguements thus: (a) The plaint in O.S.No.5677 of 1996 was earlier presented as Civil Suit on the Original side of this Court, and subsequently, due to enhancement of the pecuniary jurisdiction of the City Civil Court concerned, the plaint, even before being numbered on the Original Side of this Court, was returned; whereupon the said plaint was presented before the City Civil Court, which was numbered as O.S.No.5677 of 1996. (b) Even though the said suit was not one for specific performance, yet erroneously the Courts below treated it as a suit for specific performance and entertained the same and ultimately passed the judgment and decree. https://hcservices.ecourts.gov.in/hcservices/ (c) The judgment in O.S.No.5677 of 1996 even though was an ex- parte one, nevertheless the leaned Judge should have discussed the various facts with reference to Section 16 of the Specific Reliefs Act. (d) The judgement of the Court below in O.S.No.5677 of 1996 is as vague as vagueness could be and it is ultimately void for vagueness and also it falls foul of the mandatory provisions relating to the passing of judgment in a case. (e) The plaintiff is the purchaser of the suit property partly from one Vairamuthu, who earlier purchased it from the original owners, viz., Valliammal and her two sons and the remaining part was purchased from the Power of Attorney of the said Valliammal and her two sons. Even though allegedly there was an agreement to sell, which purportedly emerged between the defendant Balasubramaniam and the original owners, namely, Valliammal and her two sons, yet it is only a make believe one and based on that alone, such a fraudulent suit was filed in O.S.No.5677 of 1996. The Courts below failed to take into account those features and simply decreed the suit as though after the said agreement to sell, referred to supra, the two sale deeds in favour of the plaintiff emerged. Accordingly, the learned counsel for the appellant/plaintiff prays for setting aside the judgments and decrees of the Courts below and for decreeing the suit filed by the plaintiff. 9. By way of torpedoing and pulverising the arguements as put forth and set forth on the side of the plaintiff, the learned Senior counsel for the defendant would advance his arguements, which could briefly and tersely be set out thus: (i) The City Civil Court had competence to entertain the plaint in O.S.No.5677 of 1996, even though the immovable property was situated out side the City of Chennai. (ii) The Courts below appropriately and appositely, correctly and legally treated the said suit O.S.No.5677 of 1996 as a suit for specific performance. The wordings in the plaint would not govern the nature of the suit, but it is the substance which is conveyed by the words that should be considered for assessing as to the nature of the suit. Accordingly, the Courts below, taking into account the pith and marrow, the gist and kernal of the plaint, treated it as a suit for specific performance and dealt with it and the trial Court decreed the suit and the appellate Court correctly confirmed it, warranting no interference in second appeal. (iii) The contention on the side of the plaintiff that the plaint in O.S.No.5677 of 1996 should not have been entertained by the https://hcservices.ecourts.gov.in/hcservices/ trial Court is not at all fortified by any legal provisions. (iv) Simply because the trial Court in the ex-parte proceedings passed such a short judgement, it cannot be treated as a void one. (v) Absolutely there was no fraud practised on the Court and in such a case, the second appeal deserves to be dismissed. 10. The epitome and the long and short of the admitted factual position would run thus: (i) One Valliammal and her two sons happened to be the original owners of the suit property and according to the defendant, there emerged an agreement to sell-Ex.B6 dated 3.8.1986 between the defendant and the original owners and the defendant, whereby, the former agreed to sell in favour of the latter the suit property. Subsequently, there was some difficulty in getting the sale deed executed by Balasubramaniam-the respondent/defendant herein, whereupon alone he filed the suit previously in O.S.No.5677 of 1996 and got the ex-pare judgment and decree. (ii) The contention of the appellant/plaintiff is that the original owners, namely, Valliammal and her two sons sold part of the suit property in favour of Vairamuthu, who in turn sold it to the appellant/plaintiff herein and the remaining part of the suit property was purchased by him from the Power of Attorney of those original owners. (iii) According to the learned counsel for the plaintiff, even though those two sale deeds apparently may appear to have emerged subsequent to the alleged agreement to sell, as per the said two sale deeds, the plaintiff acquired right over the entire suit property. 11. A mere poring over and perusal of the judgment passed in O.S.No.5677 of 1996 would exemplify and demonstrate, display and project that the learned Judge passed a short judgment as under: "Judgment Suit for specific performance and for costs. P.W.1 examined. Ex.A1 to A3 marked. Suit claim proved. Suit is decreed with cost as prayed for. Pronounced by me in open Court, this the 19th day of February, 1997." (extracted as such) 12. The learned counsel for the plaintiff would submit that in view of the precedents governing the passing of the ex-parte judgements, if the said judgment is analysed, it should be treated as https://hcservices.ecourts.gov.in/hcservices/ a void one, but the Courts below failed to consider the said legal position at all. 13. Whereas, the learned Senior counsel for the defendant would submit that simply because such a short judgment was passed, it cannot be held that to be a void one. 14. No doubt, a serious law point is involved in this case and I am of the considered view that if this Court decides that point for the first time, then either of the parties would be losing the opportunity of agitating it in the normal course before the appellate forum, but on the other hand, if the first appellate Court decides the said point, then the aggrieved party would have the opportunity of seeking remedy by filing second appeal. Hence, I am of the considered view that the matter has to be remitted back to the first appellate Court for deciding as to the voidity or otherwise of the judgment passed in O.S.No.5677 of 1996 by the VI Assistant Judge, City Civil Court, Madras. 15. Inasmuch as the learned counsel for the plaintiff also raised the point that the earlier plaint O.S.No.5677 of 1996 itself was not a properly presented one and even the original filing of the plaint before the Original side of this Court, without obtaining leave, was fraught with illegalities and that would also cut at the very root of the earlier proceedings. I am of the view that this point also should have been considered by the Courts below. 16. Hence the aforesaid two points have to be decided by the first appellate Court. 17. The learned counsel for the plaintiff would submit that since the Courts below wrongly held that the earlier suit O.S.No.5677 of 1996 was a suit for specific performance, in the decree, the following versions are found set out erroneously. " . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . (1) that the defendants do convey executed and register the sale deed or deeds of the suit property in favour of the plaintiff in the sub-Registrar Office of Chengalpet. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18. What I would like to observe is that if a Court validly holds that a suit is one for specific performance, then in that case, the decree could be in the aforesaid form. Furthermore, while deciding the aforesaid two points, the first appellate Court will necessarily decide as to whether the earlier suit O.S.No.5677 of 1996 was one for specific performance or not and in such an eventuality, https://hcservices.ecourts.gov.in/hcservices/ automatically the point raised about the insertion and interpolation in the E.P. would get answered and separately this Court need not direct the lower Court to decide on the alleged insertion etc.in the E.P. 19. Accordingly, the above point is decided to the effect that since the Courts below failed to take into account the aforesaid two points, the matter has to be remanded to the first appellate Court, after setting aside the judgment and decree of the appellate Court for adjudging the following two points, viz., (i) Whether the presentation of the plaint, so to say the filing of the suit in O.S.No.5677 of 1996 before the City Civil Court was proper and legal? (ii) If so, whether the judgement and decree passed in O.S.No.5677 of 1996 are valid as per law? 20. Depending upon the decision that would be taken on the aforesaid points, the appeal shall be disposed of within a period of two months from the date of receipt of a copy of this judgement. The first appellate Court is at liberty to refer to the earlier Court proceedings in O.S.No.5677 of 1996 and for rendering its judgement. 21. The parties shall appear before the first appellate Court on 2.2.2011. 22. The second appeal is disposed of accordingly. Consequently, connected miscellaneous petition is closed. No costs. Msk Sd/ Asst.Registrar /true copy/ Sub Asst.Registrar To 1.The Additional Subordinate Judge, Chengalpattu 2.The District Munsif, Chengalpattu. 1 cc To Mr.G.R.Lakshmanan, Advocate, SR.2146 1 cc To Mr.B.Nedunchezhiyan, Advocate, SR.2272 S.A.No.11 of 2011 ng(co)pmk.18.1.2011 https://hcservices.ecourts.gov.in/hcservices/