MARIMUTHU UDAYAR AND ORS Vs. RAJAMANICKAM

JUDGEMENT

(1.) Since all these proceedings are between the same parties, they can be disposed of together.

(2.) The respondent who is the same in all these cases, filed a suit O.S. No. 339 of 1974on the file of the Sub-Court, Salem, against five defendants for specific performance of an agreement of sale of certain immovable property, or in the alternative for return of the advance paid by him as also the damages for breach of the contract. The said suit was being resisted by all the defendants. When the suit was ripe for trial, defendants 1 and 2 filed an application under Section 4 of Tamil Nadu Act X of 1975 for stay of the suit on the ground that they are entitled to the benefits of the said Act, and therefore, the suit ought to be stayed till the currency of the said Act. That application was opposed by the plaintiff on the ground that the suit being one for specific performance of an agreement for sale or in the alternative for the return of the advance paid as well as damages for breach of contract cannot be stayed under the provisions of Section 4 of that Act, as the suit is not for recovery of debt as defined in the said Act. The Court below accepted the stand taken by the plaintiff that the suit is not for recovery of a debt due by a person entitled to the benefits of the said Act, and therefore, held that it cannot be stayed under Section 4. Against the said order of the lower Court rejecting their applications for stay, defendants 1 and 2 have filed C.R.P. No. 1604 of 1976.

(3.) Subsequent to the dismissal of the applications for stay on 30th October, 1975, the suit was posted for trial on 6th December, 1975. On that day none of the defendants or their counsel were present in Court. The Court, therefore, adjourned the suit finally for trial, to 8th December, 1975. On that day also the defendants and their counsel were absent. The Court, therefore, decreed the suit ex parte. Subsequently, defendants 1 and 2 filed I.A. No. 20 of 1976 to set aside that ex parte decree, and defendants 3 to 5 filed I.A. No. 21 of 1976 for the same purpose. The case of defendants 1 and 2 was that on the date of the trial, their counsel went to Tiruchy to attend some marriage, and therefore he could not be present in Court for the trial of the suit. They did not, however, give any explanation as to why they could not be present in Court. Defendants 3 to 5 in their application for setting aside the ex parte decree have stated that they had noted the date of the trial wrongly as 16th December, 1975 instead of 6th December, 1975, that because of that mistake they could not be present in Court on 8th December, 1975, and that their non-appearance in Court on the date of the trial was purely due to an accidental mistake. The lower Court felt that the explanation, given by the defendants 1 and 2 on the one hand, and defendants 3 to 5 on the other, were not quite convincing; but nonetheless, they had to be given an opportunity to take part in the trial of the suit. In that view, the lower Court set aside the ex parte decree passed in the suit on condition that the two sets of defendants should pay a sum of Rs. 1,000 each towards the suit claim and also deposit costs of the suit into the trial Court on or before 1st April, 1976 and directed that in default of compliance, the petitions to set aside the ex parte decree would stand dismissed. Aggrieved against the order of the lower Court imposing the above conditions for setting aside the ex parte decree in the suit, the said two sets of defendants have filed C.M.A. Nos. 235 and 236 of 1976.