IN THE HIGH COURT OF JUDICATURE AT HYDERABAD FOR THE STATE OF TELANGANA & THE STATE OF ANDHRA PRADESH THURSDAY, THE THIRTY FIRST DAY OF JULY TWO THOUSAND AND FOURTEEN PRESENT THE HON'BLE SRI JUSTICE VILAS V. AFZULPURKAR APPEAL SUIT No.1016 of 2013 BETWEEN Mereddy Damodar Reddy and others.
... APPELLANTS AND Patel Prabhakar Reddy and another.
...RESPONDENTS Counsel for Appellants: MR. P. PRABHAKARA RAO Counsel for Respondents: MR. V.L.N.G.K. MURTHY FOR MR. V. BRAHMAIAH CHOWDARY The Court made the following:
JUDGMENT:
This appeal is filed by the defendants in O.S.No.65 of 2005 on the file of the Senior Civil Judge, Miryalguda against the judgment and decree dated 01.02.2008 in favour of the plaintiffs. The said suit was filed seeking specific performance of agreement of sale dated 03.01.2004 with regard to the plaint schedule properties in favour of the plaintiffs.
2. Since the suit was decreed ex parte by a brief judgment covering four sentences, it is not necessary to burden this judgment with detailed pleadings in view of the order proposed to be passed.
3. Suffice it to mention that the plaintiffs claim that they are closely related to defendants and that the plaintiffs as well as the defendants jointly acquired various lands and established educational institutions in the name of Chaitanya Institutions wherein Telugu School, English Medium School, Junior College and Degree College are being run. Over the years, the plaintiffs and the defendants agreed to separately earmark properties for exclusive use of the parties.
So far as the suit transaction is concerned, it is stated to relate to Ac.0.36 guntas in Sy.Nos.204 and 207/A of Huzurnagar village with a building thereupon having house No.1-42/3.
4. It is pleaded under the suit agreement dated 03.01.2004 that the suit property shall be allotted to the plaintiffs for which they shall pay Rs.8 lakhs to defendants 1 to 4 and part payment of Rs.2 lakhs by the plaintiffs was made on 02.03.2004 and remaining amount was to be paid by 30.08.2004. The agreement is stated to further recite that the plaintiffs will not have any claim or right over other immovable properties of the defendants. Plaintiffs claim to have paid the further sum of Rs.1 lakh on 16.03.2004 and were, allegedly, ready to pay the balance amount but the defendants dragged the matter even though the plaintiffs were ready and willing to perform their part of the contract. Hence, the suit for specific performance came to be filed.
5. The record discloses that in the said suit appearance was filed on behalf of the defendants and since no written statement was filed by the defendants in spite of opportunity, they were set ex parte on 25.08.2006. Thereafter, however, the suit came to be dismissed in default on 15.11.2006 and the plaintiffs filed an application for restoration on 20.11.2006. Notices in the restoration petition were stated to have been served on the appellants/defendants on 16.07.2007 and since there was no contest by the defendants, the suit was restored. Thereafter, under the impugned judgment and decree dated 01.02.2008, the suit came to be decreed by the trial Court with a brief docket order, which states as follows:
“Perused plaintiff evidence affidavit filed in support of plaint. Perused plaint and other documents. Suit claim is proved. Suit is decreed as prayed for.”
6. The said judgment and decree is, therefore, subject matter of the present appeal under Section 96 of the Code of Civil Procedure. The appeal was filed along with an application, for condonation of delay in presentation, being ASMP.No.358 of 2013 and at that stage, it was coming up for counter affidavit. On 26.09.2013, it was represented by both the counsel that the dispute is among close relatives and that they will try to resolve the pending disputes and expecting an amicable solution, the appeal was listed for hearing after Dasara Vacation, 2013 under the caption ‘for orders’ on the request of the counsel. Thereafter, it was adjourned on a few occasions and on 27.11.2013, it was reported that there no settlement among the parties and hence, the application for condonation of delay was taken up and it was allowed on payment of costs and the said order having been complied with, the appeal was numbered and the appeal along with application for stay was listed on 26.12.2013. During the hearing, the following glaring aspects were notices and accordingly, this Court passed the following order:
“This appeal is preferred by the defendants against the judgment in O.S.No.65 of 2005 on the file of the Senior Civil Judge, Miryalguda dated 01.02.2008.
On 27.11.2013, the delay in presentation of the appeal was condoned subject to conditions, which have since been complied with. When the application for stay, being ASMP.No.3129 of 2013, is being heard, the learned counsel for the appellants points out the endorsement on a copy application at page 25 of the papers that ‘Separate judgment is not prepared. The case is ex parte decreed.’ However, a look at the decree, certified copy of which is field at page 8, shows that the entire prayer in the plaint is granted, which includes the relief of specific performance as well as the alternative relief of refund.
Though it is sated that the decree has since been executed, I find it very strange that a suit is decreed mechanically without even a judgment, which is hard to accept and believe.
Registry shall, therefore, call for the records from the Court of Senior Civil Judge, Miryalguda in O.S.No.65 of 2005 and shall also call for explanation from the learned Senior Civil Judge, Miryalguda, who dealt with and disposed of the aforesaid suit, O.S.No.65 of 2005 under decree dated 01.02.2008.
List immediately after ‘Sankranthi Vacation, 2014’. Counter, if any, in the meanwhile.”
7. In accordance with the said order, the Registrar (Judicial) called for the original records and also called for explanation from the Officer, who passed the impugned judgment and decreed. Registrar (Judicial) placed a report before this court informing that the learned Officer, who passed the impugned judgment and decree, is no more. However, the records of the case were produced, which I had perused during the hearing and thereafter, I directed the appeal to be listed for hearing as per order dated 23.01.2014, which is extracted hereunder:
“By order dated 26.12.2013, this Court has directed the Registry to call for the original record and also call for explanation from the Officer, who passed theimpugend judgment and decree.
Registrar (Judicial) has placed a report duly enclosing letter received from the Senior Civil Judge, Miryalguda dt.03.01.2014 informing that the Officer, who passed the judgment and decreed impugned, is no more. However, the record of the case was sent.
I have seen the record of the case.
Prima facie, the impugned judgment in a specific performance suit contains only three (3) sentences and the decree, which is issued, grants specific performance as prayed for as well as the alternate relief.
I do not find any oral evidence or marking of any document for the plaintiff from the record.
Since the appeal itself is desirable to be heard and disposed of and in order to enable the learned counsel to argue the appeal, list the appeal under the caption ‘For Judgment’ on 20.02.2014.”
8. At the outset, it is required to notice that the judgment and decree shows total non-application of mind on the part of the trial Court as there is no oral evidence on record nor a single document marked including the suit agreement. There is no consideration of crucial issues relevant to a specific performance suit and surprisingly, the respondents’ suit for specific performance, which sought alternate relief for refund of part consideration paid, also came to be decreed as is evident from the decree impugned herein:
“DECREE:-
1. That the suit of the plaintiffs are be and here decreed as under:
2. That the defendants 1 to 4 are directed to register the plaint schedule property in favour of the plaintiffs by receiving the balance consideration of Rs.5.00 lakhs.
3. That the defendants 1 to 4 are in alternative directed to pay the Rs.3.00 lakhs to the plaintiffs with an interest of 24% P.A., from the date of the suit till the date of realization of the entire amount.
4. That the defendants 1 to 4 are further directed to pay a sum of Rs.19,749/- to the plaintiffs towards the costs of the suit.”
9. The judgment and decree, therefore, cannot be approved in the light of the decision of the Supreme Court in BALRAJ TANEJA v. SUNIL MADAN[1] wherein it is laid down that the Court should not act blindly but pass judgment and decree showing due application of mind on the part of the Court. In view of the ratio aforesaid, therefore, the judgment and decree impugned herein does not stand to test of legality and is liable to be set aside.
10. It is quite fundamental for the trial Court to have noticed that when a suit for specific performance is decreed, the alternate relief for refund could not have been granted. Keeping all these aspects, in mind, learned counsel on both sides were unable to sustain the impugned judgment and decree and the only option left for this Court was to remit the suit for fresh consideration of the trial Court.
11. Learned counsel for the appellants/defendants contended that notwithstanding the execution of the said decree granted by the trial Court, the impugned judgment and decree, itself being unsustainable, is liable to be set aside and the suit is required to be remitted for fresh consideration.
12. Mr. V.L.N.G.K. Murthy, learned counsel for the respondents/plaintiffs, however, contended that as a first appellate Court, this Court would have same powers as that of a trial Court and keeping in view the fact that the appellants were already set ex parte in the suit and that they failed to file a written statement, even the first appellate Court could itself consider the suit on merits and dispose of the appeal on merit in order to save time spent on this appeal and to avoid further loss of time on remand.
13. I have earnestly considered the said contentions of the learned counsel for the respondents. There is no doubt that the first appellate Court exercises the same powers as that of a trial Court and perhaps it would have been just and appropriate to accede to the contentions of the learned counsel for the respondents, however, the record of the suit does not contain either the oral evidence or documentary evidence and not even the suit agreement is marked and contain any evidence. This would necessarily involve leading of evidence both oral and documentary and either of the party would be deprived of due consideration of their respective case by the trial Court and a decision of one of the Courts of fact would eventually stand denied to one of the parties.
14. In these circumstances, therefore, I am unable to accept the contentions of the learned counsel for the respondents and in the interest of justice as well as for ensuring fair opportunity to both parties and for a just disposal of the suit, it would be more appropriate that the impugned judgment and decree is set aside and the suit is remitted for fresh consideration to the trial Court.
15. Both the learned counsel have also made submissions with regard to the stage at which the suit needs to be remitted.
Learned counsel for the appellants states that on remand, the appellants would be entitled to file their written statement and contest the suit, though earlier they were set ex parte.
Learned counsel for the appellants relied upon a Full Bench decision of this
[2]
Court in AZIZ AHMED KHAN v. I.A. PATEL in support of the aforesaid contention. On the other hand, learned counsel for the respondents/plaintiffs states that the appellants having been set ex parte as long back as on 25.08.2006, at this distance of time, they cannot be granted opportunity to get over the said order and file written statement.
16. As it is recorded in para 5 above, the appellants/defendants were set ex parte on 25.08.2006 and thereafter, the suit itself was dismissed in default and later restored and more than a year thereafter, the impugned decree was passed. In my view, at this stage, it is premature to consider the said rival contentions, as the suit is remitted for fresh consideration to the trial Court. Furthermore, the ex parte decree having been the subject matter of this appeal, as held by the Full Bench in AZIZ AHMED KHAN’s case (2 supra), once an ex parte decree is set aside naturally the result thereof being that the parties are relegated back to the same position, as they occupied to the stage, which lead to the passing of an ex parte decree.
17. As has been held by the Supreme Court in ARJUN SINGH v. MOHINDRA KUMAR[3], passing of an ex parte order by the Court and an ex parte decree by the Court are governed by two different situations and provisions viz. Order IX Rules 6 and 7 of the Code of Civil Procedure deal with ex parte order and setting aside thereof whereas Order IX Rule 13 CPC refers to setting aside of an ex parte decree. The scope of the present appeal, therefore, is with regard to the legality and validity of the ex parte decree, which is impugned herein and as such, in my view, whether the order setting the appellants/defendants ex parte passed by the trial Court was warranted or not and also as to whether that can be set aside to enable the appellants/defendants to file a written statement is a matter, which will have to be addressed by the trial Court, if the appellants/defendants make an appropriate application.
18. In that view of the matter, therefore, no direction with regard to ex parte order is called for in this appeal. The appellants/defendants shall, however, have a liberty to make an appropriate application and if such application is made, the trial Court shall consider the said application on its own merits in accordance with law and pass appropriate orders.
Accordingly, the appeal is allowed and there shall be a direction to the trial Court to commence the suit from the stage of trial and deal with the suit on merits and dispose of the same, expeditiously, preferably within a period of six (6) months from the date of receipt of a copy of the judgment of this Court. As a sequel, the miscellaneous applications, if any, shall stand closed. There shall be no order as to costs.
VILAS V. AFZULPURKAR, J July 31, 2014 DSK
[1] AIR 1999 SC 3381
[2] AIR 1974 AP 1
[3] AIR 1964 SC 993