M. Shankaran vs K.S. Sampath

G. Rajasuria, J.—Inveighing the order dated 7.1.2010 passed in I.A. No. 15 of 2010 in O.S. No. 87 of 2007 by the Fast Track Court No.

1, Salem, this civil revision petition is focussed.

A summation and summarisation of the relevant facts absolutely necessary and germane for the disposal of this revision would run thus:

(a) The revision petitioner/plaintiff filed the suit O.S. No. 87 of 2007 for specific performance of an agreement to sell, which emerged between the

petitioner and the respondent herein. Ultimately, after contest the suit was decreed in favour of the plaintiff. The operative portion of the decree is

extracted hereunder for ready reference.

In the result, the suit is decreed with respect to specific performance relief with costs. The plaintiff is directed to deposit the balance of sale price of

Rs. 3,00,000/- on or before 8.1.2010 and after receiving the balance of sale consideration the defendant is directed to execute the sale deed in

favour of the plaintiff within one month. With regard to the alternative relief of directing the defendant to pay Rs. 6,71,300/- with subsequent

interest on Rs. 6,00,000/- at the same rate till the date of payment, this suit is dismissed.

(b) It so happened that the plaintiff could not deposit the amount within the time stipulated in the above and hence even before the expiry of

8.1.2010, so to say the time stipulated for deposit of the remaining part of the sale consideration, I.A. No. 15 of 2010 was filed seeking two

months time for deposit. However, the lower Court dealt with that I.A. in the following manner and the docket endorsements including the

impugned order passed by the lower Court would run thus:

In the seal of the District & Sessions Court, Salem, Received on 7.1.2010.

Taken notice. I oppose prays time for counter.

7.1.10. Counsel for respondent/defendsant.

I.A. No. 15/10 in O.S. No. 87 of 2007:

By petitioner/plaintiff/By Counsel Mr. Karunakaran.

Under Section 148 and 151 C.P.C.:

To grant an extension of two months time for depositing of sale consideration of Rs. 3 lakhs in to Court.

Affidavit filed.

Notice given to other side.

Submitted. 2.1.10.

Heard. Petition is dismissed.

(extracted as such)

Being aggrieved by and dissatisfied with the said order this revision is focussed on various grounds, the gist and kernal of them would be to the

effect that the lower Court could have very well granted time to deposit the amount, as contemplated in the decree, taking into consideration the

fact that the son of the plaintiff was admitted in Adyar Hospital for treatment that the amount was with him and that he was only looking after the

case.

Accordingly, the learned Counsel for the revision petitioner placing reliance on the grounds of revision would pray for setting aside the order of

the lower Court and consequently allowing the I.A.15/10 for granting time.

The learned Counsel for the revision petitioner also would make an extempore submission to the effect that in fact, on 15.2.2010, the said

amount was deposited in the plaintiff''s name itself in the State Bank of India, Salem.

Be that as it may, the amount has not been deposited in Court as mandated in the decree and it is quite obvious that within the time stipulated the

amount has not been deposited and the Court also has not granted time.

Whereas the learned Counsel for the respondent/defendant by way of contradicting and refuting the arguments as put forth on the side of the

revision petitioner would develop his argument to the effect that the time stipulated by the lower Court was not utilised by the plaintiff and failed to

show his bona fides and in such a case he does not deserve any sympathy from this Court.

The point for consideration is as to whether the order of the lower Court suffers from any illegality or impropriety?

Suffice to say that the order of the lower Court is far from satisfactory. Without assigning any reason, the lower Court simply dismissed the

application. The endorsements made on the docket of the interlocutory application would clearly demonstrate and exemplify that the application

was adjourned from time to time. In the meanwhile, the defendant also has not filed any counter. However, no evidence was adduced on the side

of the plaintiff to prove that his son was admitted in Adyar Hospital and that his son was having the money etc. The lower Court, without assigning

any reason, on 7.1.2010 itself dismissed the application. In fact, the time expired for deposit only by 8.1.2010.

In this factual matrix it is quite obvious and axiomatic that the order of the lower Court is not sustainable and it should be set aside. It is a trite

proposition of law that in matters of this nature, the Court is expected to furnish reasons in its orders.

In the affidavit accompanying the application to get extension of time, the plaintiff detailed and delineated the reasons. However, it appears the

Court has not chosen to rely upon those reasons and that too in the absence of the counter having been filed. Whatever might have been in the

mind of the Court should have got spelt out in the order, but cryptically the application was dismissed, as set out supra. Hence, I am of the view

that due opportunity should be given to both sides to participate in the said I.A. proceedings and whereupon the Court is expected to pass a

reasoned order.

The order of the lower Court therefore, is set aside and the I.A.15 of 2010 is remitted back to the lower Court for fresh disposal. Both the

parties shall appear before the Court on 15.7.2010 in connection with this matter. On that day itself, the defendant should file his counter. The

petitioner/plaintiff is at liberty to adduce oral and/or documentary evidence in support of his avements in the affidavit. Whereupon the defendant

also could adduce evidence by way of rebutting the same. Thereafter the I.A. itself shall be disposed of by the end of July 2010.

In the result, the civil revision petition is ordered accordingly. No costs.