CRP/2830/2015 of Dr.M.Jaya, Vs Dr.Baba, on 31 December 2015

ORDER:

The plaintiffs in O.S.No.42 of 2009 on the file of thelearned I Additional District Judge, Medak, at Sanga Reddy, arethe petitioners herein. They filed the aforesaid suit for specificperformance of agreement of sale dated 6.8.2007. The said suitwas decreed ex parteon 15.6.2010 directing thepetitioners/plaintiffs to deposit the balance sale consideration ofRs.12,80,000/- within one month from the date of the judgment.The said amount was not deposited within the specified time.However, the petitioners/plaintiffs filed application beingI.A.No.53 of 2015 under Section 5 of the Limitation Act read withSection 151 CPC to condone the delay of 1643 days indepositing the said amount.

In support of the said application, the petitioners/plaintiffs filed an affidavit, wherein it was stated that he was fifth plaintiff.The relevant portion of the affidavit reads as follows:

“ I submit that I and other plaintiffs are filedthe suit for specific performance against the defendants.The same was registered above O.S.No.42 of 2009 andthe Honourable Court was issued summons to defendantsthey were not received summons after that Court wasgiven judgment on the day of June, 2010. And as per thejudgment plaintiffs are directed to deposit the balance ofsale consideration of Rs.12,80,000/- in this Court withinone month from the date of this judgment.

3. It is further submit that after judgment I am andother plaintiffs are not deposited amount before this Courtbecause of plain tiff No.4 & 5 are not contacted at thattime with me and we tried to trace out the defendants address and after context we will take judgment but evensome many years we are try to trace out but thereaddress not found”

In the said application, respondents 1 to 4 did not appearas they refused to receive the notices. In the instant CRP also,despite publication of notice by way of substituted service, noneappeared for them.

The learned Counsel for the petitioners submits that theaffidavit was sworn in on 24.01.2015 by the sixth plaintiff. As itcould be seen from the array of parties in the cause title, theymistakenly typed as fifth plaintiff. The application wasdismissed on the ground that no proper reasons were assigned.

The learned Counsel for the petitioners placed reliance onthe decision of the Apex Court in KUMAR DHIRENDRAMULLICK AND TIVOLI PARK APARTMENTS (P) LTD {(2005) 9SCC 262} and submit that in the suit for specific performance,the decree shall be in nature of preliminary decree and the Court does not become functus officio even after grant ofdecree. He also submits that he and other petitioners could notcomply with the condition as they were not in contact with him.When such plea was pleaded by the respondents herein, theCourt should have considered the application of the petitionersin the facts and circumstances of the case as it is a suit forspecific performance of agreement of sale and an amount ofRs.10,00,000/-(Rupees ten lakshs only) was paid in advance.

In view of the submissions made by the learned Counselfor the petitioners and having regard to the facts andcircumstances of the case, this Court is inclined to set asidethe order under revision dated. 13.04.2015 and remand thematter to the Court below for passing orders afresh and inaccordance with law.

The Civil Revision Petition is allowed to the extentindicated above. Miscellaneous petitions pending considerationif any in the Civil Revision Petition shall stand closed inconsequence. No order as to costs.

--------------------------------------------------- JUSTICE A. RAMALINGESWARA RAO

DATED 31[st] December, 2015. Msnrx