Kerala High Court · 2012

OP(C).No. 1468 of 2011 (O) APPENDIXPETITIONER'S EXHIBITS:EXT.P1:COPY OF THE PLAINT IN O.S.NO.83/2005 ON THE FILE OF THE COURT OF THE SUBORDINATE JUDGE OF PALAKKAD.EXT.P2:COPY OF THE WRITTEN STATEMENT FILED BY THE 1ST DEFENDANT IN O.S NO.83/2005 ON THE FILE OF THE COURT OF THE SUBORDINATE JUDGE PALAKKAD DATED 19.06.2005.EXT.P3:COPY OF THE WRITTEN STATEMENT FILED BY THE 3RD DEFENDANT IN O.S.NO.83/2005 ON THE FILE OF THE COURT OF THE SUBORDINATE JUDGE OF PALAKKAD DATED 01.09.2008.EXT.P4:COPY OF THE I.A.NO.155/2011 IN OS NO.83/2005 ON THE FILE OF THE COURT OF THE SUBORDINATE JUDGE OF PALAKKAD DATED 13.01.2011.EXT.P5:COPY OF THE STATEMENT FILED BY THE 1ST DEFENDANT IN OS NO.83/2005 ON THE FILE OF THE COURT OF THE SUBORDINATE JUDGEOF PALAKKAD DATED 13.01.2011.EXT.P6:COPY OF THE JUDGMENT IN O.S NO.83/2005 ON THE FILE OF THE COURT OF THE SUBORDINATE JUDGE OF PALAKKAD DATED 13.01.2011.EXT.P7:COPY OF THE DECREE IN O.S NO.83/2005 ON THE FILE OF THE COURT OF THE SUBORDINATE JUDGE OF PALAKKAD DATED 13.01.2011.EXT.P8:COPY OF THE I.A NO.585/2011 IN OS NO.83/2005 ON THE FILE OF THE COURT OF THE SUBORDINATE JUDGE OF PALAKKAD DATED 11.02.2011.RESPONDENT'S EXHIBITS-NIL//TRUE COPY//P.A TO JUDGEDG “C.R.”V. CHITAMBARESH, J--------------------------------OP(C) NO. 1468 OF 2011------------------------------------Dated this the 2nd day of July, 2012JUDGMENTA brazen violation of the statutory provisions prompts meto set aside the judgment in a suit in exercise of thejurisdiction under Article 227 of the Constitution of Indiaespecially since no assessment of evidence is involved. I amresorting to this course fully conscious that the judgment isopen to an appeal under Section 96 read with Order XLI Rule1 of the Code of Civil Procedure, 1908 (CPC for short). 2.The suit was one for specific performance ofan agreement for sale dated 09.07.2004 of about 9 cents ofland for a total consideration of `15,50,000/- allegedly enteredinto between the plaintiff and the first defendant. There wasalso an alternate prayer for return of the advance amount of`5,00,000/- allegedly paid by the plaintiff to the first defendanton the date of agreement. The first defendant totally deniedthe execution of the agreement and also the receipt of any 2OP(C) No. 1468/2011amount as advance pursuant thereto in the written statementfiled in the suit. The specific case of the first defendant wasthat blank signed papers given by him to the plaintiff whileavailing a loan of ` 5,00,000/- had been misused to fabricatethe agreement for sale.3.Neither the plaintiff nor his power of attorneyholder was present in court when the suit was called on forhearing and an application put in by counsel to remove thesuit from the list for trial was rejected. The first defendantthereupon filed a statement to the effect that a decree for`5,00,000/- can be passed against him being the loan availedof from the plaintiff. The court below accepted this statementand passed a decree for an amount of `5,00,000/- against thefirst defendant in favour of the plaintiff with interest thereonat 9% per annum. The short question that arises forconsideration is as to whether the court below was justified inpassing such a decree when no part of the plaint claim hadbeen admitted by the first defendant.4.I heard Mr. T. Krishnanunni, Senior Advocateon behalf of the petitioner/plaintiff and Mrs. Prabha R Menon,Advocate on behalf of the first respondent/first defendant. 3OP(C) No. 1468/20115.The relevant statutory provision is Order IXRule 8 CPC which is extracted below:“Procedure where defendant onlyappears:- Where the defendant appears and theplaintiff does not appear when the suit is called onfor hearing, the Court shall make an order that thesuit be dismissed, unless the defendant admits theclaim, or part thereof, in which case the Court shallpass a decree against the defendant upon suchadmission, and, where part only of the claim hasbeen admitted, shall dismiss the suit so far as itrelates to the remainder”. (emphasis supplied).The first defendant had neither admitted the plaint claim forspecific performance of the agreement for sale nor partthereof as regards the receipt of advance amount of `5,00,000/- pursuant to its execution. The case of the firstdefendant on the other hand was that he had availed of a loanof ` 5,00,000/- from the plaintiff and blank signed papersgiven as security was used to fabricate the agreement.6.The court below would have been justified to pass adecree for ` 5,00,000/- only if the first defendant had admittedat least in part the plaint claim of having received the saidsum as advance sale consideration. The court below wasempowered to pass a decree in the absence of the plaintiffonly if the first defendant had admitted the plaint claim in full 4OP(C) No. 1468/2011or part thereof under Order IX Rule 8 CPC. A court is obligedto pass a partial decree only for the uncontested part of theplaint claim in the absence of the plaintiff (see: Calcutta PortTrust Vs. Shalimar Tar Products [1991 Supp (2) SCC153]. The only option which the court below had in thecircumstances obtaining was to dismiss the suit for default forthe non appearance of the plaintiff on the day the case wascalled on for hearing.7.It was contended on behalf of the first defendantthat the judgment of the court below could be sustained bycalling in aid Order XII Rule 6 CPC which deals with judgmenton admissions. Firstly, there had not been any admission onthe part of the first defendant with regard to any fact in issuein the suit for the provisions of Order XII Rule 6 CPC to applyin the case on hand. Secondly, the said provision would applyonly to issues admitted in the presence of the plaintiff and thecourt below was then obliged to pronounce judgment on allthe issues as enjoined under Order XIV Rule 2 CPC. I have nodoubt in my mind that the impugned judgment was passedwithout advertance to the statutory provisions leading to an 5OP(C) No. 1468/2011unsolicited decree in a suit for specific performance.8.The further question is as to whether I shouldrelegate the plaintiff to the statutory remedy of appeal underSection 96 read with Order XLI Rule 1 CPC after an year anda half has elapsed since the judgment. I should bear in mindthat no oral evidence was let in by the parties to the suit andtherefore no question of appreciation of oral evidence arisesas at present. The Supreme Court dealing with the powers ofthe High Court under Article 227 of the Constitution of Indiaobserved in Jai Singh and others Vs. MunicipalCorporation of Delhi and another [2010 (9) SCC 385] asfollows:“It is, however, well to remember thewell-known adage that greater the power,greater the care and caution in exercisethereof. The High Court is, therefore,expected to exercise such wide powers withgreat care, caution and circumspection. Theexercise of jurisdiction must be within thewell-recognised constraints. It cannot beexercised like a “bull in a china shop”, tocorrect all errors of judgment of a court, ortribunal, acting within the limits of itsjurisdiction. This correctional jurisdiction canbe exercised in cases where orders have beenpassed in grave dereliction of duty or inflagrant abuse of fundamental principles oflaw or justice”. (emphasis supplied). 6OP(C) No. 1468/20119.The impugned judgment stems out of amisconception of the applicability of Order IX Rule 8 CPCwhen the first defendant had not admitted any part of theplaint claim in the suit for specific performance. An appealeven if filed under Section 96 read with Order XLI Rule 1 CPCat this distance of time would necessarily entail a remand andthat too after several years. Nothing prevents me fromexercising the correctional jurisdiction under Article 227 ofthe Constitution of India especially since no appreciation oforal evidence is involved to test the correctness of thejudgment.10.I set aside the impugned judgment and remand thesuit to the court below for disposal afresh after affording tothe parties an opportunity to adduce evidence. The partiesshall appear in the court of the Subordinate Judge of Palakkadon 06.08.2012 where O.S. No. 83/2005 was pending.The Original Petition (Civil) is allowed. No costs.V. CHITAMBARESH JUDGEncd