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Judgment
G. Rajasuria, J.—This second appeal is focussed by the first Defendant in the original suit, animadverting upon the dismissal of A.S. No. 35
of 2006 on 20.11.2007 by the Principal District Judge, Trivellore, confirming the judgment and decree of the learned Subordinate Judge,
Poonamallee in O.S. No. 410 of 1996. The parties are referred to hereunder according to their litigative status and ranking before the trial Court.
The epitome and the long and short of the relevant facts absolutely necessary and germane for the disposal of this Second Appeal would run
thus:
(a) The Plaintiff filed the suit seeking the following reliefs as against three Defendants, of whom one is the Sub Registrar, Ambattur:
(i) To direct the 1st and 2nd Defendants to execute and register a sale deed for Rs. 3,17,000/-to the Plaintiff conveying the suit property and
receive the balance of sale consideration of Rs. 23,328/-from court deposit after handing over the originals of documents pertaining to the suit
property after securing a transfer of the suit site from the T.N.H. Board; and
(ii) To grant permanent injunction restraining the 1st and 2nd Defendants from executing and registering any sale deed on the file of the 3rd
Defendant or on the file of any other competent register and restraining the 3rd Defendant from accepting any sale deed from the 1st and 2nd
Defendants for registration pertaining to the suit property.
(iii) To grant permanent injunction restraining the 1st and 2nd Defendants, their men, servants or agents from interfering with the Plaintiff''s peaceful
possession and enjoyment of the suit property; and
(iv) for costs. (Extracted as such)
(b) D1 and D2 filed the written statement separately resisting the suit.
(c) Whereupon the trial Court framed the issues.
(d) During trial, on the side of the Plaintiff, P.W.1/Nalliappan was examined in chief, but he was not cross examined. Whereupon, D1 filed an
application seeking permission to recall P.W.1, so as to enable D1 to cross examine P.W.1 and also adduce evidence on the side of D1. The said
application was dismissed and the suit was decreed.
Being aggrieved by and dissatisfied with the judgment and decree passed by the trial Court, D1 preferred appeal. Whereupon, the appellate
Court dismissed the appeal as against which the Second Appeal has been filed by D1 on various grounds suggesting the following substantial
questions of law:
(a) Whether the Court below properly appreciated the oral documentary evidence? placed by 1st Respondent herein.
(b) Whether the Court below has properly applied the well established principles of law to find out the lacuna and validity of execution of the Sale
Agreement dated 28.6.1994 for the suit property even before obtaining the Title of the said property from the Tamil Nadu Housing Board by
executing the Sale Deed in favour of the Appellant.
(c) Whether the Court below has properly appreciated the Doc. i.e. Ex.A4 in relation to the Specific Performance clause mentioned that the
Allottee namely the Appellant herein should not alienate the property within a period of 5 years as per the Sale Deed executed by the Tamil Nadu
Housing Board and superstructure should be completed on the land within 3 years period from the date of execution & registration of the Sale
Deed.
(d) Whether the Court below properly appreciated the scope of cause of action for the suit in failure of the Appellant''s legal right to enter into any
such alleged Sale Agreement.
(extracted as such)
Heard both sides.
After hearing both sides, I have been of the considered view that the following substantial questions of law should be framed:
(1) Whether the Courts below were justified in not granting opportunity to D1 to cross examine P.W.1 and also adduce evidence and that too in a
suit for specific performance and also in view of the fact that D2 did not contest the matter after filing the written statement?
(2) Whether there is any perversity or illegality in the findings rendered by the first appellate Court?
The learned Counsel for the Appellant/D1 would implore and entreat that an opportunity be given to D1 to cross examine P.W.1 and also
adduce evidence on his side, then only the matter could be comprehensively decided and that too in view of the obvious and axiomatic factual
position that D2, the Power Agent of D1 virtually colluded with the Plaintiff.
Per contra, in a bid to torpedo and pulverise the arguments as put forth and set forth on the side of D1, the learned Counsel for the Plaintiff
would submit that the first Defendant cannot capitalise his own fault by simply remaining inert during the trial stage as well as before the first
appellate stage and for the first time, D1 cannot insist upon the fact that he should be given opportunity to cross examine P.W.1 and also adduce
evidence on his side.
In this case, the first Defendant filed necessary application for recalling P.W.1 so as to enable D1 to cross examine the witness and also to
adduce evidence, but in my considered view that was unjustifiably rejected by the trial Court. No doubt, there might have been certain laches on
the part of the first Defendant in participating in the trial. Considering the principle of audi alteram partem, opportunity could have been given to
D1, subject to payment of cost by him to the Plaintiff and that would have met the ends of justice. Surprisingly, the trial Court simply dismissed his
application and immediately passed the decree and in fact, D1 also did not have had the opportunity to prefer the CRP, because in the meantime
ex parte decree was passed. Before the appellate Court no doubt the Appellant/D1 could have prayed for getting such opportunity, but that was
not done so. I am of the view that without having sufficient evidence on record if the matter is decided, that would amount to deciding the matter
only on ex parte basis.
This is a case relating to specific performance and D1 would specifically contend that D1''s Power Agent D2, defrauded D1. The fact also
remains that D2 did not contest the matter after filing the written statement. Hence, this a fit case warranting interference of the High Court and the
matter has to be remanded back to the first appellate Court so as to give opportunity to D1 to cross examine P.W.1 and also adduce evidence on
his side. I also make it clear that in the event of the Plaintiff desirous to adduce further evidence, he is at liberty to lead further evidence. Because of
the laches on the part of the first Defendant, the Plaintiff also should not suffer. Hence I would like to award cost in favour of the Plaintiff payable
by the first Defendant.
Wherefore, the substantial question of law Nos. 1 and 2 are decided to the effect that the Courts below were not justified in not granting
opportunity to D1 to cross examine P.W.1 and also adduce evidence and hence interference of the High Court in this Second Appeal is
warranted.
In the result, the judgment and decree of the first appellate Court is set aside and the matter is remanded back to the first appellate Court with
the following direction:
The appellate Court shall give opportunity to D1 to cross examine P.W.1 and also adduce evidence on his side and in the event of the Plaintiff
desirous of adducing further evidence, he is at liberty to lead further evidence. However, the matter shall be disposed of within a period of four
months from the date of receipt of a copy of this judgment. The Appellant/D1 shall pay a sum of Rs. 3,000/-(Rupees three thousand only) as cost
to the Plaintiff, and the same shall be received by the learned Counsel for the Plaintiff, within a period of one month from this date and if there is
any default in payment, this order will not enure to the benefit of the Plaintiff.
Accordingly, this Second Appeal is disposed of. Consequently, connected miscellaneous petition is closed.
Both the parties shall appear before the first appellate Court on 18.04.2011.