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Judgment
The petitioner who is defendant No.5 has filed the present
writ petition against the order dated 27.11.2017 on IAs.7 and 8
made in OS No.727/2008 dismissing the applications filed under
Section 151 of the Code of Civil Procedure, 1908 and under
Order 18 Rule 17 of the Code of Civil Procedure, 1908.
The first respondent who is the plaintiff before the
Trial Court filed the suit for specific performance to enforce the
agreement dated 10.02.2007 and also for direction to the
defendant Nos.1 to 4 to deliver the vacant possession of the
schedule property and further to declare that the sale deed dated
01.09.2007 executed by defendant Nos.1 to 4 in favour of
defendant No.5 is void ab-initio and not binding on the plaintiff
and direct defendant No.5 to quit and hand over the vacant
possession of the suit property to the plaintiff and for permanent
injunction contending that defendant No.1 who is the owner of
property has approached the plaintiff and offered to sell his
agricultural land and accordingly, defendant No.1 executed the
agreement of sale dated 10.02.2007 in favour of the plaintiff
before the witnesses for sale consideration of Rs.31,46,875/- and
has received Rs.3,00,000./- as advance on the date of
agreement and agreed to execute the sale deed within 21 days
from the production of documents from defendant No.1. It is
further contended that in spite of repeated demands made,
defendant No.1 did not execute the sale deed. Therefore,
plaintiff was constrained to issue legal notice and filed the suit
for the relief''s sought for.
The defendant No.1 filed the written statement and
denied the execution of agreement and contended that he never
executed the same. The same written statement was adopted by
defendant Nos.2 to 4. The defendant No.5 did not file any
written statement.
After completion of evidence of both the sides, when
the matter was posted for arguments, at that stage, the present
applications came to be filed by defendant No.5 under Section
151 of the Code of Civil Procedure, 1908 to re-open the case
from the stage of arguments to evidence i.e., to cross examine
the witnesses and another application filed under Order 18 Rule
17 read with Section 151 of Code of Civil Procedure, 1908 to
recall the order dated 14.07.2016 from the stage of arguments
and permit defendant No.5 to cross examine PWs.1 and 2 and
contended that after receipt of summons from the Trial Court, he
has filed vakalath on 11.08.2011 and as he had no knowledge of
legal aspects, he did not contact his counsel. In the first week of
August, 2016, when he contacted the counsel he came to know
that his previous counsel on record has not filed the written
statement and not cross examined PWs.1 and 2 on behalf of
defendant No.5 etc., Therefore, he sought to allow the
applications.
The said applications was resisted by the plaintiff
contending that the applications were filed belatedly and the very
same advocate who is appearing for defendant No.5 has
extensively cross examined the witnesses of plaintiff. Therefore,
there was no necessity to allow the applications and sought for
dismissal of the applications.
The Trial Court considering the applications and
objections, by an impugned order dated 27.11.2017 dismissed
both the applications. Hence, the present petition is filed.
I have heard the learned Counsel for both the parties
to the lis.
Sri Viswanatha Setty .V, learned Counsel for the
petitioner-defendant No.5 contends that the suit is filed by the
plaintiff for specific performance against the defendants.
Defendant Nos.1 to 4 have alienated the property during the
pendency of the suit and he is in possession and enjoyment of
the property. He submits that because of the mistake committed
by the counsel in not filing the written statement, the parties
should not suffer. Therefore, an opportunity should be given to
the petitioner to cross examine PWs.1 and 2 on the next date of
hearing i.e., 13.12.2017. If an opportunity is given, defendant
No.5 will cross examine PWs.1 and 2 on the same day and
proceed with the trial. Therefore, he submits that the writ
petition may be allowed by quashing the impugned order.
Per contra, Sri Haneef M.H., learned Counsel for the
respondents sought to justify the impugned order and
vehemently contended that though the suit was filed in the year
2008, defendant No.5 has not filed the written statement. In
spite of giving opportunity, he has not availed the same to cross
examine PWs.1 and 2. Therefore, the Trial Court is justified in
dismissing the applications. Therefore, he sought for dismissal of
the writ petitions.
Having heard the learned Counsel for the parties, it is
not in dispute that the respondent No.1 who is the plaintiff
before the Trial Court filed the suit for specific performance
against defendant Nos.1 to 4 and also for declaration that the
sale deed executed by the defendants is not binding on the
plaintiff who sought for possession from defendant No.5. It is
also not in dispute that after completion of evidence of both
sides, the matter was posted for arguments. At that stage, the
present applications are filed mainly on the ground that the
counsel engaged by defendant No.5 has not filed written
statement and not cross examined PWs.1 and 2 and because of
the mistake committed by the Counsel, parties should not suffer.
Ultimately if any order is to be passed, it should not affect the
right of the parties.
The case was filed in the year 2008 and now we are
in the year 2017. The applications are filed at the stage of
arguments. The fact remains that right of the parties are
involved in respect of the immovable property. Mere granting of
one more opportunity on any of the date fixed by this Court to
cross examine PWs.1 and 2 by defendant No.5- the present
petitioner will not in any way prejudice to the case of plaintiff.
Though the matter is of the year 2008, when the rights of the
parties are involved in respect of immovable property, the right
of the property cannot be decided on technicality. When
substantial justice and technical considerations are pitted against
each other cause of substantial justice deserves to be preferred
for the other side cannot be claimed to have a vested rights in
injustice being done because of a non deliberate delay. It must
be grasped that judiciary is respected not on account of its power
to legalize injustice on technical grounds but because it is
capable of removing injustice and is expected to do so.
In the present case, though the counsel for
defendant No.5 filed power on behalf of the petitioner long back,
unfortunately, he has not filed the written statement. Though it
is the duty of the counsel to defend and appear before the Trial
Court to cross examine PWs.1 and 2, the same has not been
done. Because of the mistake committed by the Counsel for
defendant No.5, the parties should not be suffered. Therefore,
this Court is of the considered opinion that an opportunity has to
be given to the petitioner to cross examine PWs.1 and 2 subject
to imposing of cost.
For the reasons stated above, the writ petitions are
allowed. The impugned order dated 27.11.2017 on IAs.7 and 8
filed under Section 151 of Code of Civil Procedure and under
Order 18 Rule 17 of the Code of Civil Procedure are quashed.
IAs.7 and 8 are allowed subject to payment of cost of
Rs.10,000/- payable by defendant No.5 to the plaintiff on the
next date of hearing and further subject to condition that on
13.12.2017, the defendant No.5 shall cross examine PWs.1 and 2
before the Trial Court. After completion of the cross
examination, he shall proceed with the arguments, if time
enables or on the date fixed by the learned Trial Judge. He shall
not seek any further adjournment.
Taking into consideration the matter is of the year 2008,
the Trial Court is directed to expedite the suit itself subject to co-
operation of the parties.