MOHAMMED SHABEER Vs. SUKUMARAN

JUDGEMENT

(1.) A brazen violation of the statutory provisions prompts me to set aside the judgment in a suit in exercise of the jurisdiction under Art. 227 of the Constitution of India especially since no assessment of evidence is involved. I am resorting to this course fully conscious that the judgment is open to an appeal under S. 96 read with O. XLI R. 1 of the Code of Civil Procedure, 1908 (C.P.C. for short). The suit was one for specific performance of an agreement for sale dated 9.7.2004 of about 9 cents of land for a total consideration of Rs. 15,50,000/- allegedly entered into between the plaintiff and the first defendant. There was also an alternate prayer for return of the advance amount of Rs. 5,00,000/- allegedly paid by the plaintiff to the first defendant on the date of agreement. The first defendant totally denied the execution of the agreement and also the receipt of any amount as advance pursuant thereto in the written statement filed in the suit. The specific case of the first defendant was that blank signed papers given by him to the plaintiff while availing a loan of Rs. 5,00,000/- had been misused to fabricate the agreement for sale.

(2.) Neither the plaintiff nor his power of attorney holder was present in court when the suit was called on for hearing and an application put in by counsel to remove the suit from the list for trial was rejected. The first defendant thereupon filed a statement to the effect that a decree for Rs. 5,00,000/- can be passed against him being the loan availed of from the plaintiff. The court below accepted this statement and passed a decree for an amount of Rs. 5,00,000/- against the first defendant in favour of the plaintiff with interest thereon at 9% per annum. The short question that arises for consideration is as to whether the court below was justified in passing such a decree when no part of the plaint claim had been admitted by the first defendant.

(3.) I heard Mr. T. Krishnanunni, Senior Advocate on behalf of the petitioner/plaintiff and Mrs. Prabha R Menon, Advocate on behalf of the first respondent/first defendant.