D.BABU Vs. K.A.DINACHANDRAN

JUDGEMENT

(1.) Plaintiff is the revision petitioner. The plaintiff filed the suit for declaration that he was not competent to enter into any contract between 1998 and 2008 and consequently, the sale deed executed by him in favour of defendants 1 and 2 cannot be acted upon and for injunction. In that suit, defendants 1 and 2 remained ex parte and the third defendant viz., the third respondent herein filed a statement and when the case is ripe for trial, the revision petitioner/plaintiff filed application under Order 16 Rule 14 of the Code of Civil Procedure to issue summons through Court to defendants 1 and 2 for their appearance for examination and to produce the sale deed dated 21.10.2004 registered as document No. 5253 of 2004 on the file of the Sub Registrar, Konnur. That application was dismissed and aggrieved by the same, this revision is filed.

(2.) Learned counsel for the revision petitioner submitted that the petitioner is entitled to summon defendants 1 and 2 who remained absent to give evidence and only by examining them, the revision petitioner can prove his case that the document executed in favour of defendants 1 and 2 was not valid and defendants 1 and 2 will not get any title to the suit property. He also relied upon the judgment in V.K. Periasamy alias Perianna Gounder v. D. Rajan, 2001 AIR(Mad) 410 in support of his contention. He also relied upon the judgment in Sri Awadh Kishore Singh and Another v. Sri Brij Bihari Singh and Others, 1993 AIR(Pat) 122

(3.) According to me, the Court below has rightly dismissed the application. It is seen from the averments in the plaint that the revision petitioner was an alcoholic between 1998 and 2008 and taking advantage of his position, defendants 1 and 2 induced him to convey the suit property in their names and no consideration was passed and the sale deed dated 21.10.2004 is not a valid sale deed. It is further stated that defendants 1 and 2 also availed loan from the third defendant bank based on the sale deed executed by the plaintiff. Therefore, as rightly contended by the third defendant before the Court below, the issue to be decided in the suit is whether the plaintiff was competent to enter into any contract during the period between 1998 and 2008 and whether consideration was passed or not. Therefore, the duty is cast upon the plaintiff to prove that he was not in a position to enter into any contract as he was an alcoholic at that time and he would not know what he was doing and that was taken advantage of by defendants 1 and 2 and got the document.