Full Judgment Text
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CASE NO.:
Appeal (civil) 5923 of 5924
PETITIONER:
K.G. Arumugham & Ors.
RESPONDENT:
K.A.Chinnappan & Ors.
DATE OF JUDGMENT: 24/02/2005
BENCH:
ASHOK BHAN & A.K. MATHUR
JUDGMENT:
J U D G M E N T
BHAN, J.
These appeals are directed against the common
order dated 24.3.1998 passed by a Single Judge of
the Madras High Court in CRP No. 2695 and 2696 of
1993 arising from an order dated 2.7.1993 passed by
the Principal Sub Judge, Coimbatore in I.A. No.
1019 of 1987 in O.S. No. 187 of 1980 and I.A. No.
2100 of 1987 in O.S. No. 526 of 1987. The High
Court has set aside the order passed by the
Principal Sub Judge and remitted the case to the
Munsif Court for a fresh decision in the light of
the observations and directions given in the
impugned order.
The facts are complicated and required to be
set out in detail to appreciate the controversy
arising in these proceedings.
The defendants \026appellants (hereinafter
referred to as "the appellants") who were the owners
of suit property measuring 4 acres 7 cents in
Kurinchi Village, Coimbatore entered into an
agreement with the plaintiffs-respondents
(hereinafter referred to as "the respondents") to
sell the suit land for a sum of Rs. 2,15,710/- at
the rate of Rs. 53,000/- per acre. Respondents paid
a sum of Rs. 10,001/- as earnest money and the
balance sale consideration was to be paid at the
time of registration of sale deed which was to be
completed within four months. As the respondents
did not come forward to get the sale deed
registered, the appellant No. 2 by his letter dated
10.6.1979 informed the respondents that they have
lost their right to get the sale deed executed under
the agreement of sale. Notice terminating the
agreement was also sent to the respondent through a
lawyer on 12.9.1979.
Respondents filed OS No. 187 of 1980 in the
Court of Principal District Munsif, Coimbatore
seeking permanent injunction restraining the
appellants from causing any obstruction or
interference or prejudice to the
plaintiffs/respondents by undertaking any
construction activities on the suit land or by
giving any access to the land or connecting the land
with public road etc. Appellants in their written
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statement raised a preliminary objection regarding
the maintainability of the suit. It was pleaded
that a simple suit for permanent injunction was not
maintainable in the absence of a prayer seeking
specific performance of the agreement. In view of
the objections raised by the appellants, respondents
filed I.A. No. 1982 of 1980 to amend the plaint and
seek specific performance of the agreement of sale
dated 13.12.1978. Amendment as sought for was
allowed vide order dated 13.12.1978. As the Munsif
Court did not have the pecuniary jurisdiction to try
a suit of the value of Rs. 2,15,710/-, plaint was
ordered to be returned for presentation in the court
of competent jurisdiction within a period of two
months. The order reads :
"I.A.No. 1982 of 1980 allowed. Plaint claim
Rs. 2,15,710/- pecuniary jurisdiction. Hence
plaint returned for presentation to proper
court. Time two month."
Respondents kept quite for seven years. On
27.4.1987 respondents filed I.A. No. 1919 of 1987 in
the Court of District Munsif, Coimbatore with a
prayer to return the plaint. Prayer was in the
following terms:
"For the reasons stated in the accompanying
affidavit, the petitioner prays that this
Hon’ble Court may be pleased to issue
necessary orders for effecting delivery of the
amended plaint in O.S. No. 187 of 1980 ordered
by this Hon’ble Court to be returned to the
petitioners and to grant other relief just and
necessary in the circumstances of the case."
On the very next day, i.e., 28.4.1987 the
Principal District Munsif without giving any notice
to the appellants passed the following order:
"plaint may be returned to the advocate as
requested. One week time for re-presentation
given."
Respondents after paying the court fee on Rs.
2,15,710/- re-presented the plaint before
the Vacation Civil Judge, Coimbatore and it was
registered as O.S. No. 526 of 1987.
Aggrieved against the order dated 28.4.1987 in
I.A. No. 1019 of 1987 the appellants filed CRP No.
3226 of 1987 in the High Court of Madras. High
Court allowed the revision petition and set aside
the order passed by the Munsif Court in I.A. No.
1019 of 1987 in O.S. No. 187 of 1980 both on merits
as well as being violative of principles of natural
justice. It was held that the Munsif Court having
ordered return of the plaint on 28.11.1980, it was
not open to it to pass another order of return of
plaint after a lapse of 7 years. Further it was
held that the Munsif Court was not entitled to
entertain and pass any order on the
application/petition without giving a prior notice
to the other side. It was further held that the
appellants, in the meanwhile, had sold a part of the
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property to third parties who were put in
possession. Because of the changed circumstances
the relief of specific performance could not be
granted. It was observed that the order passed by
the Munsif Court had caused great prejudice to the
appellants and the respondents were not entitled to
the relief of specific performance.
Aggrieved against the order of the High Court,
the respondents filed SLP (C) No. 3786 of 1988 which
was dismissed on 11.5.1988 with the following
observations:
"Special Leave Petition is dismissed.
The petitioner may take resort to some legal
remedy as may be available to him."
Another fact which needs to be highlighted is
that after the order passed by the High Court in CRP
No. 3226 of 1987 the appellants filed I.A. No. 2100
of 1987 in O.S. No. 526 of 1987 in the subordinate
court praying that the suit had become infructuous
in view of the order passed by the High Court in CRP
No. 3226 of 1987 and, therefore, the same be
dismissed as such. Respondents filed Review
Petition No. 2769 of 1988 in the High Court and the
same was dismissed.
Respondents filed I.A. No. 1168 of 1989 in O.S.
No. 526 of 1987 to treat the suit as a fresh suit.
Appellants in their reply to I.A. No. 1168 of 1989
stated that the application was an abuse of the
process of the Court and amounted to circumventing
and flouting the orders of the High Court. It was
also pleaded that the respondents had abandoned
their right under the agreement and the relief of
specific performance was barred by limitation. The
Principal Sub Judge (Transferee Court) disposed of
I.A. No. 2100 of 1987 filed by the appellants and
I.A. No. 1168 of 1989 filed by the respondents by
passing a common order and held that I.A. No. 1168
of 1989 was not maintainable in view of the order
passed by the High Court in I.A. No. 1019 of 1987 in
CRP No. 3226 of 1987 dated 6.11.1987. It was held
that the suit for specific performance could be
filed within a period of three years and even
assuming that the suit in O.S. No. 526 of 1987 was
considered as a separate suit and not a continuation
of O.S. No. 187 of 1980, there was no fresh cause of
action for the present suit and the suit was barred
by limitation. Accordingly, the Principal Sub Judge
allowed I.A. No. 2100 of 1987 filed by the
appellants and dismissed I.A. No. 1168 of 1989 filed
by the respondents.
Respondents, being aggrieved by the order
passed by the Principal Sub Judge, filed two
separate CRPs. numbering 2695 and 2696 of 1993
against the order passed by the subordinate court in
I.A. No. 2100 of 1987 and I.A. No. 1168 of 1989. By
the impugned order, the High Court has allowed the
revision petition and remitted I.A. No. 1019 of 1987
in O.S. No. 187 of 1980 to the Munsif Court for a
fresh decision in the light of the observations and
directions given in the impugned order.
Registration of Suit No. 526 of 1987 in the
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subordinate court was cancelled. It was observed
that the re-registration of the suit shall have to
abide by the order that shall be passed in I.A. No.
1019 of 1987 in O.S. No. 187 of 1980 by the District
Munsif, Coimbatore. It was held:
"I.A. No. 1019 of 1987 in O.S. No. 187 of 1980
will stand remitted back to the learned Trial
Judge, i.e., District Munsif Coimbatore, for
disposal in accordance with law after giving
notice to the opposite parties in that
application............the registering of the
suit as O.S. No. 526 of 1987 on the file of
the Subordinate Court, Coimbatore, consequent
to the return dated 28.11.1980 in O.S. No. 187
of 1980 on the file of District Munsif,
Coimbatore, is cancelled and such re-
registration will have to abide by the order
that will be passed in I.A. No. 1019 of 1987
in O.S. No. 187 of 1980 on the file of the
District Munsif, Coimbatore. The Subordinate
Court, Coimbatore is directed to send the
original plaint and the other connected
records in O.S. No. 526 of 1987 immediately to
the file of the District Munsif, Coimbatore."
The High Court gave the above direction on the
following premises:
(i) that Order dated 6.11.1987 passed by the High
Court in CRP No. 3226 of 1987 was incorrect
inasmuch as the only order that could have been
passed in CRP No. 3226 of 1987 was to remit
I.A. No. 1019 of 1987 to the Munsif Court with
a direction to issue notice to the opposite
parties and dispose it of on merits;
(ii) that the question whether the plaintiffs are
entitled to the relief of specific performance
or not, is a matter to be decided in the suit
namely O.S. No. 526 of 1987 and definitely not
in that Civil Revision Petition. In that Civil
Revision Petition, the above referred question
did not arise at all and, therefore, anything
said by the learned Single Judge in that order
can only be ’obiter dicta’.
It was also held that the Court which fixed the time
for performing an act by Order dated 28.4.1980 was
competent to extend the time for the purpose of that
act and it is only that Court and no other Court
could do such an act. It was observed that the
learned Judge drew his source of inspiration to pass
the impugned order from the observation of the
Supreme Court which reserved the liberty with the
respondents to ’take resort to some legal remedy as
may be available to them.’
We have heard counsel for the parties at
length.
In our view, the High Court erred in reversing
the order passed by the Principal Sub Judge. The
impugned order cannot be sustained because that the
earlier order dated 6.11.1987 passed by the High
Court setting aside the order dated 28.4.1987 passed
in I.A. No. 1019 of 1987 in O.S. No. 187 of 1980 by
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the Munsif Court had become final and binding
between the parties with the dismissal of the
Special Leave Petition by this Court on 11.5.1988.
The said order could not be re-opened at the
instance of the respondents by merely filing an
application i.e. I.A. No. 1168 of 1989 and that too
with a prayer to treat O.S. No. 526 of 1987 as a
fresh suit.
The respondents because of their own conduct
have amply demonstrated that the suit for specific
performance would not be maintainable. This would
be evident by the fact that the Munsif Court, while
returning the plaint, had directed the respondents
to re-present the plaint within a period of two
months. The respondents did not comply with the
said order. After seven long years, respondents
chose to file I.A. No. 1019 of 1987 before the
Munsif Court with a prayer that the plaint be
returned to the plaintiff. The order passed by the
Munsif Court on this application on 28.4.1987
granting a week’s time to re-present the plaint was
held to be without jurisdiction by the High Court.
Respondents by their default and long lapse of time
had allowed third party rights to set in respect of
the suit properties rendering the passing of the
decree of specific performance inequitable and
unjust. The grant of specific relief is a
discretionary relief and is not as a matter of
right. The High Court in its previous order had
held that the prices had gone up a few times over
the original price. Third party rights had also
come into existence. Passing of a decree for
specific performance would cause great prejudice to
the appellants and that the respondents were not
entitled to the relief for specific performance.
This had become final between the parties. Review
Petition No. 276 of 1988 filed by the respondents
seeking review of the order dated 6.11.1987 was
dismissed on 29.4.1998. The present attempt of the
respondents was an attempt in the nature of a second
review of the order dated 6.11.1987 which could not
be permitted. By the impugned order, the Single
Judge has virtually reviewed the earlier order
passed by the High Court which it could not do. The
learned Single Judge has proceeded in the matter as
if it was hearing an appeal against the earlier
order passed by the Single Judge in CRP No. 3226 of
1987 or as if it was sitting in review jurisdiction.
Further the High Court by the impugned order
remitted the case back to the District Munsif,
Coimbatore which did not have the jurisdiction to
pass any order in the suit because of lack of
pecuniary jurisdiction. The plaint had already
been returned by the District Munsif to the
petitioner for re-presentation to a court of
competent jurisdiction which the respondent did
after paying the requisite court fee and the
subordinate court having territorial and pecuniary
jurisdiction had already assigned a new number to
the suit i.e. O.S. No. 526 of 1987. The learned
Single Judge has gone beyond the relief claimed in
the IAs in ordering that the registration of the
suit as O.S. No. 526 of 1987 on the file of the
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Subordinate Court, Coimbatore is cancelled and such
a re-registration will have to abide by the order
that may be passed by the District Munsif in I.A.
No. 1019 of 1987 in O.S. No. 187 of 1980. The
learned Judge who passed the impugned order was not
sitting in appeal over the earlier order passed by
the High Court. He could not set aside the earlier
order. Rather he was bound by the same as sitting
in the co-ordinate jurisdiction since the earlier
order had already attained finality.
The impugned order, under the
circumstances, cannot be sustained and the same is
set aside and the order passed by the Munsif Court
is restored. Accordingly, the appeals are allowed.
There shall be no order as to costs.