Sanjeevi and Gnanasekaran @ G.V. Naidu vs Mooken, Madhaiyan and Ilayarajan

G. Rajasuria, J.—Animadverting upon the order dated 04.03.2008 passed by the learned District Munsif, Harur in I.A. No. 252 of 2008 in

O.S. No. 282 of 2002, this civil revision petition is focussed.

Heard the learned Counsel for the petitioner and the learned Counsel appearing for the respondent.

Compendiously and concisely, the case of the revision petitioner as stood exposited from the record could be portrayed thus:

The revision petitioners/plaintiffs filed the suit in O.S. No. 282 of 2002 for declaration and permanent injunction. During trial, the

plaintiffs/petitioners filed I.A. Nos. 252 and 253 of 2008 for reopening the plaintiff''s side and for reception of three documents. The grievance of

the petitioners is that while allowing the application for reception of documents, the trial Court permitted the petitioners to mark the two documents

except the third document, which is an agreement to sell. Being aggrieved by and dissatisfied with such rejection of the said agreement to sell from

being filed, the revision petitioners have filed the present civil revision petition on various grounds.

The learned Counsel appearing for the revision petitioners placing reliance on the grounds of revision would develop his argument to the effect

that the trial Court at the stage of condoning the delay in filing the documents, should not have pondered over the merits of the case of the plaintiff,

vis-a-vis, the very agreement to sell itself; in fact, the lower court misunderstood as though it was a sale deed, when in fact, it was only an

agreement to sell. He would also submit that such objection to the said agreement to sell could be raised at the time of marking and ultimately while

deciding the suit, the Court would be at liberty to decide the said objection in one way or the other.

Whereas the learned Counsel appearing for the respondents would submit that without having the backing of the pleading and the oral evidence

already adduced, all of a sudden, like a bolt from the blue, there came the impugned document, viz., an agreement to sell. Had really there been

any genuine agreement to sell, which emerged between the father of the plaintiffs and the father of the defendants, certainly, it would have found a

place in the pleadings, so to say, in the plaint itself, but it is conspicuously missing.

I could see considerable force ex facie and prima facie, in the submission made by the learned Counsel for the respondents. Hence, I am of the

considered opinion that at this stage, the lower Court need not have gone into all those details as correctly pointed out by the learned Counsel for

the petitioner. Adhering to the decision of the Hon''ble Apex Court reported in AIR 2001 Sc 1158 (Bipin Shantilal Panchal v. State of Gujarat and

Anr.), the trial Court could have permitted the petitioners to file such agreement to sell and mark the same reserving its right to decide on it along

with the suit.

Hence, in these circumstances, the civil revision petition is allowed to the following extent:

G. Rajasuria, J.

The lower court shall allow the agreement to sell to be filed and marked and at the time of marking the objection of the petitioners shall be

recorded and such objection shall be decided along with the suit.

No costs. Consequently, the connected miscellaneous petition is closed.