P.Karthikeyan, v. Kannan @ Rajendran,

Order 9, Rule 13 of CPC.

¶31In the case on hand, already Order 9, Rule 13 petition was attained finality through judgment of the Hon'ble Supreme Court.

¶32The learned Counsel appearing for the respondent had relied the following judgments:

i) Bhanu Kumar Jain Vs. Archana Kumar and Another reported in 2005 (1) LW 582 and

ii) S.Ramachandra Rao Vs. S.Nagabhushana Rao and Others reported in 2022 (3) MWN (Civil) 679.

¶33On a careful persual of the said judgments, it is clear that once the appeal against the order of Order 9, Rule 13 under Order 43, Rule 1 of CPC is dismissed, the application cannot raise the same contention in the first appeal, if it be held that such a contention can be raised both in first appeal as also in the proceedings arising from an application under Order 9, Rule 13, it may lead to conflict of decisions which is not contemplated in law and it is also clear that principles of res judicata can be invoked not only in separate subsequent proceedings, they also get attracted in subsequent stage of the same proceedings and once an order made in the course of proceeding because final, it would be binding at the subsequent stage of these proceedings.

¶34In view of the above said judgments, it is clear that once the petitioner raised the ground in Order 9, Rule 13 petition and the same was already decided, the same grounds cannot be raised in this appeal. The petitioner failed to avail the opportunities before the Trial Court, and further there is no sufficient pleading in respect of the documents sought to be received. Therefore, the petitioner is not entitled to the relief through this Civil Miscellaneous Petition. Therefore, the Civil Miscellaneous Petition is liable to be dismissed. Accordingly, this Civil Miscellaneous Petition is dismissed. Point No.2:

¶35According to the plaintiff, in O.S.No.48 of 2004 he entered into agreement with the defendant and he is also one of the owners of the property. His mother Koppammal was also owner of the property for the first item. Since the property was managed by this defendant, he executed agreement on behalf of Koppammal. But on perusal of the agreement, there is no recitals in respect of the same and the plaintiff having knowledge about the ownership of the Koppammal had entered into agreement with the defendant. It is not the case of the plaintiff that the defendant has mis represented about the share of the Koppammal and in the pleadings, he categorically admitted that at the time of giving advance he paid a sum of Rs.2,25,000/- and Rs.2,00,000/- was given to defendant and Rs.25,000/- was given to the Koppammal through one Rudrappa Naicker. Therefore, the plaintiff had knowledge about the ownership of the property while entering into agreement despite that he has not obtained any sale agreement from the said Koppammal. Moreover, the plaintiff has not even obtained signature of the said Koppammal in the suit agreement. Therefore, the plaintiff has not produced any documents to show that the entire suit property belongs to the defendant and he himself admitted the ownership of the Koppammal. Per contra, the plaintiff in O.S.No.40 of 2005 has produced the settlement deed in his favour for the first item of the suit property and also examined P.W.1 and P.W.2 and proved that the first item of the suit property belongs to son of the defendant. Moreover, the plaintiff not even examined any witnesses. Therefore, the plaintiff failed to prove that the suit properties are exclusively belongs to the defendant. Thus the point is answered. Point No.3:

¶36According to the defendants, the plaintiffs altered the dates, amount and the description of property in the agreement. This Court also perused the agreement. In the agreement, there are some alterations made and further as per the Exhibit A.1, copy of the agreement, there is no any four boundaries mentioned in the agreement and as per the agreement in Exhibit A.5, there is an alteration and location of the property is also altered. On seeing naked eye in the agreement, there are some alterations. The plaintiff has not given any explanation about the alteration made in the agreement. According to the plaintiff, after agreement due to escalation of market value of the property, they agreed to pay excess of Rs.4,50,000/-. According to the defendant, they agreed for Rs.7,00,000/- of excess amount than the agrement amount and to that effect, the D.W.1 deposed about the extra agreed amount. While so, the amount in agreement in Exhibit A.5 also altered and it shows the alteration. Thereby, the defendants proved that there are some material alterations in the agreement and thus the point is answered. Point No.4:

¶37According to the plaintiff, he was always ready and willing to peform his part of contract. But the defendants evading from executing the sale deed. Per contra, the defendant contention is that he agreed to sell the property and received the advance of Rs.2,25,000/- and thereafter they agreed to receive the amount on three installments and after payment of one installment, the second installment was not paid by the plaintiff and thereafter, the plaintiff and defendants agreed to enhance the sale price and thereby, Rs.7,00,000/- for increase of sale price but the plaintiff stated that only Rs.4,25,000/- was increased. The plaintiff has not issued notice immediately after the lapse of period of sale agreement as per the recitals of the agreement and he only issued notice after two years. The plaintiff has not adduced any evidence and not filed any documents to prove his readiness and willingness. Therefore, he failed to prove that he was always ready and willing to perform his part of contract. Point No.5:

¶38It is admitted fact that in the sale agreement time fixed for three installments. According to the plaintiff, the time fixed for sale is not essence of contract. According to the defendant, three installments time was fixed. But the plaintiff failed to pay the amount, as per the time fixed in the agreement. There is a specific mention about the time and payment and thereby, the time is essense of contract. It is well settled law that only because of time fixed in the agreement, it cannot be said that the time is essense of contract, unless there is a specific mention about the reasons, in the agreement. In this case, there is no any reason stated in the agreement about the time is essense of contract. Moreover, in the agreement itself, three installments mentioned for payment and after the agreement, amounts also paid through some installments. Therefore, the said conduct of the parties shows time is not essence of contract. Had the time is essence of contract, the defendant ought to have mention the specific terms in the agreement and he ought to have issued notice immediately after lapse of agreement period, but not done so. Therefore, the time is not essense of contract. Thus the point is answered. Point No.6:

¶39The plaintiff has filed a suit for specific performance of contract and this Court already in the previous point decided that there was material alteration in the agreement and also the plaintiff was not ready and willing to perform his part of contract and the property also not belonged to the defendant. Further the plaintiff failed to impelad the Koppammal, who alleged to have received the advance of sale amount and after knowing that the settlement deed was executed in respect of first item of the property in the name of plaintiff in O.S.No.40 of 2005, he has not impleaded them as party to this suit. Thereby, the plaintiff is not entitled to decree for specific performance. Thus the point is answered. Point Nos.7 & 8:

¶40The Trial Court in the judgment elaborately discussed about the evidences adduced by the parties and also after perusing the records held that there are some material alterations in the agreement and the plaintiff was also not ready and willing to perform his part of contract and the plaintiff failed to issue notice immediately after the expiry of the agreement period and the plaintiff issued notice after two years from the date of agreement and thereby, he failed to prove the readiness and willingness and dismissed the relief of specific performance. However, granted money decree to return of advance amount and the defendant has not preferred any appeal as against the money decree passed by the Trial Court. Therefore, the Trial Court has passed reasoned jugment and there is no infirmity or perversity found on the judgment of the Trial Court. Hence, the Trial Court judgment and decree are liable to be confirmed and the present appeal has no merits and deserves to be dismissed. Thus the points are answered. A.S(MD)No.190 of 2015: Point Nos.1 to 3:

¶41The plaintiff has filed a suit for declaration and permanent injunction. According to the plaintiff, the suit property belonged to his parental grand-mother and she executed settlement deed in his favour on

27.08.2002 and he has been in possession and enjoyment of the property pursuant to the settlement deed as his absolute property. On the side of the plaintiff, he examined himself as P.W.1 and also examined P.W.2 and marked Exhibits A.1 to A.11. According to the plaintiff, the property originally belonged to his parental grand-mother, Koppammal and she executed a settlement deed, dated 27.08.2002 and the same was also not denied by the defendant. The plaintiff also produced the settlement deed as Exhibit A.3 and the parental deeds in the name of his predecessor as Exhibits A.1 and A.2. Further he examined the attesting witnesses of settlement deed as P.W.2 and he deposed about the execution and attestation of the settlement deed Exhibit A.3 and the defendants also cross-examined the witnesses and nothing elucidated in favour of the defendant. Thereby, he proved that the property was settled in his favour and thereafter, the plaintiff also produced parental documents for the suit property and also he produced the patta in his name as well as his predecessor name and he also produced kist receipt to the property. Therefore, he proved that the property belongs to him through settlement deed. The plaintiff has produced the Exhibits A.1 to A.3 and examined P.W.2 attesting witnesses of settlement deed Exhibit A.3 and thereby, proved that the suit property was settled him through settlement deed, dated 27.08.2002. Further he deposed as P.W.1 that he is in possession and enjoyment of the property by paying kist after transerring the patta in his name. The plaintiff also produced Exhibits A.4 to A.10 pattas and tax receipt in the name of plaintiff and his predecessors. Therefore, the plaintiff proved that the property exclusively belongs to him and he is in exclusive possession and enjoyment of the property and his father first defendant has no any right over the property. The defendants have not adduced any contra evidence to rebut the plaintiff side evidence. Moreover, the second defendant admitted the title of the Koppammal in respect of the suit property through pleadings. Therefore, the plaintiff is entitled to the relief of declaration in respect of the title of the property. Point Nos.4 and 5:

¶42The plaintiff has sought for the relief of permanent injunction restraining the defendants from alienating the property to third parties and also not to convert the property into plots. According to the plaintiff, the defendants attempted to alienate the properties to third parties and also attempted to convert the properties into plot and thereby, he sought for the reliefs. The plaintiff in his evidence categorically deposed about the attempts made by the defendants to create encumbrance over the property and this Court also in the previous point decided that the plaintiff is the absolute owner of the property and the plaintiff is in exclusive possession over the suit property. Therefore, the plaintiff is entitled to the relief of permanent injunction as prayed for in the suit. Thus the points are answered. Point Nos.6 and 7:

¶43The Trial Court in the common judgment categorically discussed about the entitlement of the relievs by the parties and also after considering the available evidences and the records, correctly came to a fair conclusion and decreed the suit in favour of the plaintiff. The Trial Court discussed about the title deeds Exhibits A.1 to A.3 and Exhibit A.11 and also referred the Exhibits A.4 to A.10 for the possession and passed reasoned and elaborate judgment on merits. Therefore, there is no any perversity or infirmity found in the judgment and decree passed by the Trial Court and it does not warrant interference. Therefore, this appeal has no merits and deserves to be dismissed. This Court in the previous points decided that the appellant has failed to prove his case. Per contra, the first respondent proved his case through sufficient evidences and then by the appellant is not entitled to any relief through this appeal. Accordingly, the points are answered.

¶44In the result, C.M.P(MD)No.4892 of 2023 in A.S(MD)No.189 of 2015 stands dismissed.

¶45In the result, the appeal suit in A.S(MD)No.189 of 2015 stands dismissed by confirming the decree and common judgment passed in O.S.No.48 of 2004 on the file of the Additional District Court (Fast Track Court No.I), Thoothukudi. There shall be no order as to costs.

¶46In the result, the appeal suit in A.S(MD)No.190 of 2015 stands dismissed by confirming the decree and common judgment passed in O.S.No.40 of 2005 on the file of the Additional District Court (Fast Track Court No.I), Thoothukudi. There shall be no order as to costs.

28.03.2024 NCC : Yes / No Index : Yes / No Internet : Yes BTR To

1.The Additional District Court (Fast Tract Court No.I), Thoothukudi.

2.The Section Officer, Vernacular Record, Madurai Bench of Madras High Court, Madurai.

P.DHANABAL, J. BTR

28.03.2024

IN THE HIGH COURT OF JUDICATURE AT MADRAS RESERVED ON : 31.01.2024 DELIVERED ON : 28.03.2024 CORAM: THE HONOURABLE MR.JUSTICE P.DHANABAL and C.M.P(MD)Nos.4892 & 6773 of 2023 A.S(MD)No.189 of 2015: P.Karthikeyan ... Appellant/Plaintiff Vs. Kannan @ Rajendran ... Respondent/Defendant Prayer : Appeal Suit is filed under Section 96 of Civil Procedure Code, to set aside the judgment and decree passed in O.S.No.48 of 2004, dated 02.07.2008 on the file of the Additional District Court (Fast Tract Court No.I), Thoothukudi by allowing this appeal. For Appellant : Mr.M.Vallinayagam Senior Counsel for Mr.D.Nallathambi For Respondent : Mr.Lakshmi Gopinathan for M/s.Polax Legal Solutions A.S(MD)No.190 of 2015: Karthikeyan ... Appellant/2nd Defendant Vs. 1.R.Vasanth ... 1st Respondent/Plaintiff 2.Kannan @ Rajendran ... 2nd Respondent/1st Defendant Prayer : Appeal Suit is filed under Section 96 of Civil Procedure Code, to set aside the judgment and decree passed in O.S.No.40 of 2005, dated 02.07.2008 on the file of the Additional District Court (Fast Tract Court No.I), Thoothukudi by allowing this appeal. For Appellant : Mr.M.Vallinayagam Senior Counsel for Mr.D.Nallathambi For R-1 : Mr.M.P.Senthil For R-2 : Mr.Lakshmi Gopinathan for M/s.Polax Legal Solutions COMMON JUDGMENT ********** These Appeal Suits have been preferred as against the common judgment and decrees passed in O.S.Nos.48 of 2004 and 40 of 2005 on the file of the Additional District Judge (Fast Tract Court No.1), Thoothukudi. The appeal in A.S(MD)No.189 of 2015 has been filed as against the decree and judgment passed in O.S.No.48 of 2004 and the appeal in A.S(MD)No.190 of 2015 has been filed as against the decree and judgment passed in O.S.No.40 of 2005. 2. For the sake of convenience and brevity, the parties herein after will be referred to as per their status / ranking in the Tribunal. 3. The brief averments of the plaint in O.S.No.48 of 2004 are as follows: The plaint schedule property originally belonged to the defendant and the plaintiff and the defendants entered into agreement to sale of property on 18.03.2000. On the date of agreement itself, the defendant received a sum of Rs.2,25,000/- as advance of sale price and the sale price was fixed as Rs.18,93,000/- (i.e.,) Rs.3,00,000/- per acre. The time fixed for the completion of contract is 17.01.2001. The balance amount has to be paid by three installments. The plaintiff has to pay a sum of Rs. 2,75,000/- on 17.06.2000. On 17.09.2000, a sum of Rs.4,50,000/- has to be paid and the remaining amount has to be paid on or before 17.01.2001. The defendant endorsed in the agreement for receipt of Rs. 2,25,000/- on 17.06.2000. The plaintiff was always ready and willing to pay the next installment of Rs.4,50,000/- on 17.09.2000. But the defendant demanded more money than the agreed amount and thereafter, mediation was convened and the plaintiff agreed to pay an additional amount of Rs.4,25,000/- and the total price would come to a sum of Rs. 23,18,000/-. The said mediation was happened on 03.11.2000 and on the same day itself, the plaintiff paid a sum of Rs.1,68,000/- to the defendant and the same was also endorsed in the agreement and the time was also extended till 30.04.2001. The plaintiff totally paid a sum of Rs. 6,18,000/-. The plaintiff has taken the possession of the land and made improvements by spending more money. The plaintiff was throughout always ready and willing to perform his part of contract but the defendant is evading from executing the sale deed. Therefore, the plaintiff sent a notice dated 28.10.2003 to the defendant by expressing his willingness to get sale deed by paying the balance sale consideration. But the defendants after receipt of notice sent a reply, dated 03.11.2003 with false averments. Therefore, the plaintiff filed a suit for specific performance of contract. 4. The brief averments of the written statement filed by the defendant are as follows: The agreement, dated 18.07.2000 did not contain th