Ajay Jose and Theresa Jose v. Francis Sebastian and others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT** **THE HONOURABLE MR. JUSTICE ASHOK MENON** **WEDNESDAY,THE 24TH DAY OF OCTOBER 2018 / 2ND KARTHIKA, 1940** # **OP(C).No. 1370 of 2012** **AGAINST THE ORDER/JUDGMENT IN OS 2/2009 of ADDL.MUNSIFF COURT,KOCHI** ## **PETITIONER/S:** |**1**|**AJAY JOSE**| |---|---| ||**S/O ISSAC, KARUMANJERRY HOUSE,**| ||**MUNDAMVELI MURI, KOCHI TALUK.**| |**2**|**THERESA JOSE**| ||**AGED 46 YEARS, W/O AJAY JOSE, KARUMANJERRY HOUSE,**| ||**MUNDAMVELI MURI, KOCHI TALUK.**| ||**BY ADVS.**| ||**SRI.M.V.BOSE**| ||**SMT.NISHA BOSE**| ||**SRI.VINOD MADHAVAN**| ## **RESPONDENT/S:** **1 FRANCIS SEBASTIAN S/O FRANCIS, RESIDING AT EERASSERY HOUSE, R.C ROAD, PALLURUTHY DESOM, KOCHI TALUK, ERNAKULAM DISTRICT, NOW WORKING AT TANSANIA, REPRESETNED BY POWER OF ATTORNERY HOLDER, BIJU MATHEW, AGED 44 S/O MATHEW, AZHEEKKAL HOUSE, KANNAMALI DESOM, KOCHI TALUK. 2 SHIBU, AGED 38 YEARS, S/O MICHEAL, HEERA WATERS, NORTH BLOCK 5D, BUND ROAD, KADAVANTHRA. 3 MICHAEL, AGED 65 YEARS, S/O GEORGE, HEERA WATERS, NORTH BLOCK 5D, BUND ROAD, KADAVANTHRA. BY ADVS. SRI.ANIL S.RAJ SMT.ANILA PETER SMT.K.N.RAJANI SRI.J.VIVEK GEORGE** **THIS OP (CIVIL) HAVING BEEN FINALLY HEARD ON 19.09.2018, THE COURT ON 24.10.2018 PASSED THE FOLLOWING:** _OP(C) 1370/2012_ 2 ## **JUDGMENT** The petitioners are the plaintiffs 1 and 2 in O.S.No.2/2009, and respondents 1 and 2 in I.A.Nos. 2486 & 2487 of 2011 on the file of the Additional Munsiff's Court, Kochi. The 1[st] respondent is the 3[rd] defendant in the suit and had filed the aforementioned applications for setting aside exparte decree after condoning delay. The learned Munsiff vide Ext.P3 common order, allowed the applications, I.A.Nos.2486 & 2487 of 2011, on payment of cost. The petitioners are aggrieved by the impugned common order, hence this petition under Article 227 of the Constitution. 2. The respondents 2 and 3 herein are the defendants 1 and 2 in the suit. The suit is one for recovery of possession of the property from defendants 1 and 2 under Section 6 of the Specific Relief Act. 3. The facts in brief are thus: The 3[rd] respondent/1[st] defendant was owner of plaint schedule property, consisting of 8.5 cents of land with a building bearing door No.17/329 situated in Sy.No.332/5 _OP(C) 1370/2012_ 3 of Rameswaram Village. He borrowed a sum of Rs.2,50,000/- from Mattancherry Mahajanic Co-operative Urban Bank Ltd; by depositing the title deed of his property. The 3[rd] respondent and his son allegedly colluded with the intention to cheat the Bank, and others, and created a document purporting to be a sale deed by which the father sold 3.607 cents of land to his son. On the strength of this deed obtained by the 2[nd] respondent-son, he sold the property to another person and thereafter, the 3[rd] respondent-father sold the remaining 5 cents with building to his son as per sale deed No.2966/2005. On the basis of that sale deed, the respondents 2 and 3 mortgaged the building and the property to one Mary Sebastian and obtained a sum of Rs.1,00,000/-. The 1[st] respondent/3[rd] defendant purchased 5 cents of land together with the building as per sale deed No.6205/2005 from the 2[nd] respondent. The 3[rd] respondent was, at that time, residing in the building situated in the property with his wife and they sought time to vacate the building. The 1[st] respondent allowed them to continue with their residence on the first floor _OP(C) 1370/2012_ 4 of the building as licencees. The 2[nd] petitioner entered into an agreement for sale with the 1[st] respondent agreeing to purchase that 5 cents of land together with the building for a sale consideration of Rs.12,11,000/and thereafter the 1[st] respondent revoked the licencee granted to the 3[rd] respondent and his wife. Consequent to revoking of the licencee, the possession of the building by the 3[rd] respondent and his wife became unauthorised. The petitioners wanted the prior title deeds of the property so as to complete the documentation process. On examination of the title deeds, the petitioners realised about the fraudulent transaction by the respondents 2 and 3. The 1[st] respondent suggested that the liability towards the Bank and to Mary Sebastian be discharged. Accordingly, the petitioners paid the mortgaged amount due to Mary Sebastian with the consent of the 1[st] respondent and took possession of the building on 15.03.2008. The mortgaged amount due to the Bank was also paid, on the understanding that the sum will be given credit towards the sale consideration. The building required some repairs and renovations and the _OP(C) 1370/2012_ 5 petitioners commenced the work. The petitioners' workers were from Kattappana and they were allowed to stay in the building to carry out the renovation work. The respondents 1 and 2 had some business dealings between them. They fell apart and in order to wreak vengeance, the 2[nd] respondent filed a suit against the 1[st] respondent seeking an injunction from forcible eviction from the property. On the strength of the temporary injunction he obtained, respondents 2 and 3 entered the property by dispossessing the workers of the petitioners. The petitioners were residing far away and could not prevent the illegal act perpetrated by respondents 2 and 3. The occupation of respondents 2 and 3 is illegal and hence the petitioners filed O.S.No.2/2009 seeking a decree of recovery of possession of the plaint schedule building on the strength of their previous possession. No relief is claimed against the 1[st] respondent herein. Ext.P1 is a copy of the plaint. On 17.09.2009 the suit was decreed exparte by Ext.P2 judgment. 4. The respondents 2 and 3 filed an application for setting aside the exparte decree, which was dismissed. _OP(C) 1370/2012_ 6 They filed a Review Petition and that too was dismissed. The petitioners filed an execution Petition for recovery of possession and delivery was ordered. The delivery was obstructed, respondents 2 and 3 filed a claim petition, which also got dismissed. 5. The 1[st] respondent/3[rd] defendant against whom the petitioners did not seek any relief, filed petitions for setting aside the exparte decree and also for condonation of delay of 777 days, as I.A.Nos.2486 & 2487 of 2011. Vide common order dated 05.03.2012 the exparte decree was set aside, not only against the 3[rd] defendant, but against all defendants. The petitioners are aggrieved that despite the dismissal of earlier applications filed by defendants 1 and 2, for setting aside the exparte decree, the application of the 3rd defendant was allowed vide impugned order at Ext.P3. The petitioners have, therefore, invoked the supervisory jurisdiction of this Court under Article 227 of the Constitution of India to undo the injustice done to them. 6. The prime ground urged by the petitioners is that no relief is sought against the 3[rd] defendant and _OP(C) 1370/2012_ 7 there is no decree of injunction against him. Hence, the suit against him could not have been restored. No sufficient cause for condonation of delay of 777 days has been stated in the application to set aside the decree. Though the 3[rd] defendant was aware of the proceedings before the Court below, he did not appear, and has now cooked up a false story about the notice being served on his estranged wife, who had no relationship with him for long and that he was not therefore, aware of the summons in the suit. The Court below should have discarded the applications at the threshold. Hence, it is prayed that the impugned common order of the learned Munsiff may be set aside. 7. The 1[st] respondent appeared. Respondents 2 and 3 were served, but none appeared. The 1[st] respondent filed a counter-affidavit, through his Power of Attorney Holder, contending thus: It is stated that the petitioners have deliberately and wilfully suppressed material facts with the intention to mislead this Court. The petitioners' claim right over the disputed property based on an agreement for sale _OP(C) 1370/2012_ 8 dated 15.02.2008 entered into between the 2[nd] petitioner and the 1[st] respondent. The agreement has not been produced along with this petition. The 1[st] respondent is producing that agreement as Ext.R1(a). A reading of that agreement would show that no possession was handed over to the petitioners by virtue of the agreement. It is further contended that the agreement is not registered and hence the plaintiffs/petitioners cannot claim any right under Section 53(A) of the Transfer of Property Act. The petitioners had issued a cheque for Rs.1,70,000/- towards advance sale consideration. But that cheque has not been presented for collection, since the petitioners informed that there was no sufficient fund in their account to honour the same. It is further submitted that, at best the petitioners could have filed a suit for specific performance of the contract. They have, instead fraudulently filed a suit for recovery of possession and earned an exparte decree, knowing fully well that the 1[st] respondent was abroad. When he came to know of the exparte decree, he filed I.A.Nos.2486 & 2487 of 2011 to get the exparte decree set aside, after _OP(C) 1370/2012_ 9 condoning the delay. After considering the applications, the trial Court allowed the same on condition of payment of Rs.2,000/- as cost. Thereafter, the 1[st] respondent appeared and filed a written statement, the copy of which is Ext.R1(b). The averment in the plaint has been challenged by the 1[st] respondent, which needs to be determined by the Court and that is possible only when the exparte decree against the 1[st] respondent is set aside. The averment that the applications were filed by the 1[st] respondent under Section 151, C.P.C. is not true. The applications were filed under Order IX, Rule 13, C.P.C. and Section 5 of the Limitation Act. Section 151 was also incorporated. The averment that the 1[st] respondent had permitted the 3[rd] respondent and his wife to reside in the property as licencees and subsequently the licence was revoked, is not true. The details regarding the transaction is explained in the written statement filed by the 1[st] respondent and prays that this may be read as part of the affidavit. The averment that the petitioners came to know about the mortgages in the prior transaction only when they demanded the prior title _OP(C) 1370/2012_ 10 deed, is also not true. The averment that they had undertaken to discharge the mortgage debt towards the Bank and to Mary Sebastian is also denied by the 1[st] respondent. No workers were engaged for renovation of the property as alleged. The petitioners could never have recovered the property, since they are neither owners nor persons in possession of the property. The averment that no relief is sought against the 1[st] respondent is absurd, since the property belongs to the 1[st] respondent. Serious disputes regarding the title is to be determined in this suit and the petitioners would not be permitted to take advantage of the exparte decree that they have obtained. Hence, it is prayed that this petition may be dismissed. 8. Heard both sides. 9. The main contention raised by the petitioners herein is that in the suit filed under Section 6 of the Specific Relief Act, where no relief is claimed against the 1[st] respondent, the determination of title is not essential. The petitioners/plaintiffs are claiming recovery of possession of the property from defendants 1 _OP(C) 1370/2012_ 11 and 2, who are respondents 2 and 3 herein. Since there is no relief claimed against the 1[st] respondent, the suit could not have been restored to file after setting aside the exparte decree against the 3[rd] defendant, when the earlier petitions filed by defendants 1 and 2 already stood dismissed. 10. The crux of the dispute between the parties is that the plaintiffs are claiming possession over the disputed property by virtue of an agreement for sale, copy of which is produced by the 1[st] respondent as Ext.R1(a). Admittedly, the plaintiffs/petitioners are not owners of the property. It is true that defendants 1 and 2, against whom a decree of recovery of possession is claimed, did not contest and obtained and exparte decree, which they tried to get it set aside under Order IX, Rule 13 and was disallowed. But the 3[rd] defendant, who claims that he was abroad and did not get summons personally served on him. On that ground, he now wants the exparte decree to be set aside. The Court below found that there was sufficient reasons for condoning the delay of more _OP(C) 1370/2012_ 12 than two years and restored the suit not only against the 3[rd] defendant, but against all the defendants. 11. The first proviso to Order IX, Rule 13 states that where a decree is of such a nature it cannot be set aside as against such defendant alone, who filed the petition to get the exparte decree set aside, it may be set aside as against all or any of the other defendants also. It is as per the provisions of this that the exparte decree against all the defendants was set aside and the suit restored to file. There is absolutely no infirmity in doing so. The Court below, therefore, justified in setting aside the exparte decree not only against the 3[rd] defendant, but against all the defendants. In _**Siva v. Fertilizers and Chemicals Travancore Ltd and others, 2009 (4) KHC 879: 2009 (4) KLT 950 : ILR 2009 (4)**_ _**Ker. 832** ,_ this Court has held that if exparte decree of such a nature that it cannot be set against the defendant, who had applied, it may be set aside against all or any of the other defendants by virtue of the first proviso to Order IX, Rule 13, C.P.C. The Honourable Supreme Court has also held in _**Bank of India v. Ms Mehta**_ _OP(C) 1370/2012_ 13 ## _**Brothers and others, 2008 (13) SCC 466 : 2008 KHC 6845**_ that setting aside of entire exparte decree against all defendants depends upon the nature of the decree and if the decree is indivisible, Court can set aside the entire decree against all the defendants. Because, such a decree has to be set aside in toto against all the defendants in the suit. The fact that the petitioners did not claim any relief against the 3[rd] defendant is inconsequential. 12. The facts of this case would indicate that the petitioners are not owners of the property. They claim that they were in previous possession of the property and hence they are entitled to get previous possession restored by virtue of Section 6 of the Specific Relief Act. They did not produce the copy of the agreement for sale. The 1[st] respondent herein has produced it as Ext.R1(a). A reading of Ext.R1(a) would indicate that no possession was handed over to the petitioners and that the agreement states that the sale has to be completed and possession handed over on performance of the contract by the buyers. _OP(C) 1370/2012_ 14 13. The petitioners seems to be defending their possession under Section 53A of the Transfer of Property Act on the premise that they are in possession of the property by virtue of part-performance of the contract. Ext.R1(a) belies their claim regarding possession. Moreover, it is also pertinent to note that as per the provisions in Section 17(1A) to claim the benefit under Section 53A of the Transfer of Property Act, an agreement for sale needs to be registered compulsorily. Otherwise, the said document shall have no effect for the purpose of Section 54. This provision was introduced by the amendment in 2001 and the agreement was in 2008. Necessarily, to claim the benefit under part-performance, the contract ought to have been registered. So long as it is not registered, the petitioners cannot claim any benefit under Section 53A of the Transfer of Property Act. In view of the fact that the document itself does not state anything regarding the possession being handed over to them, I wonder how they could claim to be in possession of the property. In _**St.John's Welfare Centre v. Eastern Province of Sisters of St.Charles, 2015 (3)**_ _OP(C) 1370/2012_ 15 ## _**KHC 428 : 2015 (3) KLJ 18 : 2015 (3) KLT 62,**_ the Division Bench of this Court has held that the fact regarding handing over of possession should be mentioned in writing and that the registration of the agreement is essential to claim the benefit of part-performance. There is also a contention raised by the 3[rd] defendant that the part sale consideration, which was handed over by means of a cheque, has not been encashed by him. Hence, even part of the sale consideration is not paid. 14. In view of very serious contentions raised by the contesting 3[rd] defendant, the petitioners cannot be allowed to walk away with an exparte decree. Under the above circumstances, I find no merits in this petition under Article 227 of the Constitution and the same is dismissed. No order as to costs. ## **Sd/-** ## **ASHOK MENON** ## **JUDGE** _dkr_ _OP(C) 1370/2012_ 16 ## **APPENDIX** ## **PETITIONER(S)' EXHIBITS :** **EXHIBIT P1 COPY OF THE PLAINT IN O.S.NO.2/2009 ON THE FILE OF ADDITIONAL MUNSIFF COURT, KOCHI** **EXHIBIT P2 COPY OF JUDGMENT DATED 17.09.2009 IN O.S.NO.2/2009 ON THE FILE OF ADDITIONAL MUNSIFF COURT, KOCHI** **EXHIBIT P3 COPY OF COMMON ORDER DATED 05.03.2012 IN I.A.NO.2486/2011 & I.A.NO.2487/2011 IN O.S.NO.2/2009 ON THE FILE OF ADDL.MUNSIFF COURT, KOCHI.** ## **RESPONDENT(S)' EXHIBITS :** **EXHIBIT R1(A) COPY OF AGREEMENT FOR SALE DATED 15.02.2008 ENTERED INTO BETWEEN 2ND PETITIONER AND THE 1ST RESPONDENT.** **EXHIBIT R1(B) COPY OF WRITTEN STATEMENT DATED 10.04.2012 FILED BY THE 1ST RESPONDENT.**