IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOTTATHIL B.RADHAKRISHNAN & THE HONOURABLE MR. JUSTICE S.S.SATHEESACHANDRAN FRIDAY, THE 23RD JULY 2010 / 1ST SRAVANA 1932 FAO.No. 188 of 2010() --------------------- AGAINST THE ORDER DATED 07/06/2010 IN IA.5007/2009 & IA.5008/2009 IN OS.65/2007 of I ADDL.SUB COURT, ERNAKULAM .................... APPELLANT/PEITIONER/2ND DEFENDANT: ----------------------------------------------------- JEEVAN RAJ, S/O.AYYAPPAN, AGED 43, CHULLIPPARAMBIL HOUSE, PALACHUVADU, KAKKANADU, ERNKAULAM DISTRICT. BY ADV. SRI.E.G.GORDEN SRI.S.K.KRISHNAKUMAR SRI.SAJAN ANTONY N. SRI.S.K.PREMJITH MENON RESPONDENT(S)/RESPONDENTS/PLAINTIFF/1ST DEFENDANT: -------------------------------------------------- 1. SREDEVI KRISHNAKUMAR, AGED 34 YEARS, W/O.KRISHNAKUMAR, RESIDING AT KARTHIKA, KAITHARAMKARA, KOTTUVALLY VILLAGE, PARAVOOR TLAUK, PIN-683519. 2. P.LATHADEVI, AGED 47 YEARS, W/O.MADAN - MOHAN, RESIDING AT SREE NIVAS, VENNALA KARA, EDAPPALLY SOUTH VILLAGE, KANAYANNUR TALUK PIN – 682024. THIS FIRST APPEAL FROM ORDERS HAVING BEEN FINALLY HEARD ON 23/07/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ORDER IN I.A.NO.2545/2010 IN F.A.O.NO.188/2010 DISMISSED. 23.07.2010 SD/- THOTTATHIL B. RADHAKRISHNAN, JUDGE SD/- S.S.SATHEESACHANDRAN, JUDGE /TRUE COPY/ P.A. TO JUDGE THOTTATHIL B. RADHAKRISHNAN & S.S.SATHEESACHANDRAN, JJ. ------------------------------- F.A.O.NO.188 OF 2010 () ----------------------------------- Dated this the 23rd day of July, 2010 J U D G M E N T THOTTATHIL B. RADHAKRISHNAN, J. The 2nd defendant in a suit for specific performance of a contract for sale is the appellant. He challenges the common order by which, the court below refused to set aside the ex parte decree passed against him and also to condone the delay of 146 days in applying for such relief. 2. Alleging that the 1st defendant executed a contract for sale on 8.10.2005 and pleading that the plaintiff thereafter found that the 1st defendant had sold the property to the 2nd defendant, the suit was laid in 2007. The 1st defendant entered appearance. Summons to the 2nd defendant was taken to his address as F.A.O.188/10 2 available from the assignment shown to have been made by the 1st defendant to the 2nd defendant. 3. The process server returned it by saying that the 2nd defendant was not found and that his address could not be traced out even from the post office. The court below, thereafter, issued substituted service by paper publication. That was carried out in a newspaper. 4. Thereafter, the 1st defendant, going by the materials and as noticed by the court below even in these proceedings, seriously contested the litigation on all possible grounds. Ultimately the suit was decreed on 20.1.2009 overruling the contentions of the 1st defendant. Therefore, the factum of existence of a contract for sale between the plaintiff and the 1st defendant and the legal consequence flowing there from vis-a-vis those parties are concluded by the judgment as it stands. The finding that the 1st defendant is obliged to perform his part of that contract for sale and that the plaintiff is eligible F.A.O.188/10 3 to get the sale deed executed in terms thereof is also concluded. The only question that could have survived is whether the appellant/2nd defendant is a bona fide purchaser for valuable consideration without notice of the contract for sale and is, therefore, entitled to avoid specific performance resulting in the 2nd defendant being deprived of the property. 5. The plea raised by the appellant/2nd defendant in his applications to set aside the ex parte decree and to condone delay, was that the summons was never taken to him and he had not seen the notice published in the newspaper. He tendered evidence as PW1. He also produced Exts.A1 and A2 documents of 2009 and 2010 which were utilized by the petitioner to project a case that he had not been staying in the address shown in the plaint. 6. The court below was not impressed by the evidence of the petitioner as PW1. It came to the conclusion that the story that he did not know about the pending litigation which was also F.A.O.188/10 4 in the same court, cannot be believed. The court below relied on the proviso to Rule 13 of Order IX of the Code of Civil Procedure to state that the materials disclosed that the decree cannot be set aside. It took note of the entire facts and circumstances in a wholesome way in the back drop of the fact that the petitioner/2nd defendant is an Advocate practicing from 1995 onwards. 7. We are in complete agreement with the finding of the court below that on the totality of the facts and circumstances, the irresistible conclusion appears to be that the 2nd defendant was aware of the litigation. The common course of human conduct does not lead to any other conclusion, more particularly because the contract for sale that the 1st defendant made in favour of the plaintiff is for a total consideration of around Rs.14 lakhs while the sale deed held out by the plaintiff is only for a total amount of Rs.1,30,000/-. We are not, as at present, inclined to accept the suggestion made on behalf of the appellant through his learned counsel that the entire consideration for the F.A.O.188/10 5 transaction was not reflected in the sale deed in his favour. 8. With the aforesaid, all that needs to be examined is whether the appealing 2nd defendant should be given an opportunity to place before the court below, his grievances, namely, as noticed above, that he is a bona fide purchaser for valuable consideration without notice, provided, he has such a case. No other issue can be agitated before the court below since the findings against the 1st defendant cannot be disturbed. 9. We accede to the suggestion on behalf of the appellant that the notice was published in a newspaper that did not have sufficient circulation to bring the notice to the attention of the 2nd defendant. We also find that the summons issued to the 2nd defendant was ultimately returned. It is not a case where the summons was shown to be duly served through the process server, putting the burden on the 2nd defendant to prove that the summons was not duly served. Taking a lenient view in this regard, we feel that the appeal can be allowed on terms F.A.O.188/10 6 providing the appellant an opportunity, as stated above. In the result, this appeal is allowed and I.A.Nos.5007 and 5008 of 2009 in O.S.No.65 of 2007 on the file of the Ist Additional Sub Court, Ernakulam will stand allowed on payment of Rs.25,000/- as costs payable to the plaintiff by making such payment to the counsel appearing for him before this Court within a period of three weeks from now, failing which, this appeal will stand dismissed. We further order that the setting aside of the decree, as a result of this judgment would be confined to the interest of the 2nd defendant in the litigation and the suit will further proceed only from that stage and the questions in issue for further trial would be only as indicated above. It is further ordered that in the event of trial on payment of costs as ordered above, the amount that the plaintiff has deposited before the court below would be permitted to be converted as a Fixed deposit in a bank of his choice and receipt to be retained before the court below and the court below will expedite the trial disposal, to complete, at any rate, within a F.A.O.188/10 7 period of six months from the date of receipt of a copy of this judgment. It is clarified that this judgment will not stand in the way of issuing such orders as may be necessary for the proper trial of the issues arising for decision by summoning the parties and witnesses even if they have already been examined. THOTTATHIL B. RADHAKRISHNAN JUDGE S.S.SATHEESACHANDRAN JUDGE prp F.A.O.188/10 8