A PERUMAL Vs. R JAYARAMAN

JUDGEMENT

(1.) Application No. 89 of 1985 was originally filed by the plaintiff in the suit C.S. 139/83 namely Minor Perumal represented by his guardian and next friend his mother A. Rajeswari (since declared as major) against the defendants in the suit for setting aside the order dated 22-11-84 in C.S. 139/83 dismissing the suit, and for restoration of the suit to the file of the Original Side of this Court. Application No. 1739/86 is filed by the first defendant in the suit C.S. 139/83 to dismiss the Application No. 89/85 on the ground that it is not maintainable. Since both the applications are connected, both are taken up together for disposal and the parties are referred to as per their rank in Application No. 89 of 1985.

(2.) The facts of the case are briefly as follows :- The applicant filed the suit C.S. 139/83 for specific performance on the basis of an agreement by which the first respondent/first defendant agreed to sell the suit property to the applicant for a sale price of Rs. 1,10,000/-. In December, 1983, a consent memo was filed into Court signed by the applicant and the defendants in the suit, containing the following salient features :-

(3.) In the affidavit filed in support of the application No. 89 of 85 it has been averred as follows :- On 22-11-1984, one Srinivasan, clerk of Mr. Subbiah, Advocate, came to the house of the applicant next friend and told her that another O.P. case filed by her was coming for hearing in the City Civil Court and that the Advocate asked him to get the signatures of the applicant in two papers since the signatures were required in respect of the said O.P. case. When she told him that her husband was not in town, he mentioned that the signatures are urgently required on that day and that the said O.P. will be dismissed unless the applicant signs the papers as required. The applicant's next friend believed the words of the clerk and put her signatures in the two papers brought. She did not know the contents and she cannot read English or Tamil. She cannot write in English or Tamil but can put only her signature in Tamil. She told her husband what had happened when he returned after a week. Thereupon he contacted Mr. Subbiah, Advocate, who told him that he had sent the clerk to obtain the signatures referred to above for the O.P. matter in the City Civil Court. It was the husband of the applicant's next friend who had engaged the counsel on her behalf. The applicant's next friend had not seen or met Mr. Subbiah in the case or the other Advocate Mr. Srinivasalu who entered appearance. The husband of the applicant's next friend informed her that his usual counsel Mr. Subbiah suggested the name of Mr. Srinivasalu, saying that he could not appear in the matter but that he would be in full charge of the case. On 20-12-1984, the applicant's next friend came to know through her husband that the suit has been dismissed. She was greatly shocked when she heard that the suit was dismissed. Her husband had also told her that he had met Mr. Subbiah, Advocate, and had asked him about the dismissal of the suit. The Advocate told him that the applicant's next friend had received the amount and put the signatures to which her husband replied that this statement was not at all correct, as no amount was indeed received and that this statement was contrary to what he had conveyed earlier when he had stated that the signatures were with reference to the O.P. matter. The statement of the Advocate that the applicant's next friend had received the amount and put her signature is false. The applicant's next friend never received any amount. On 20-12-1984 she came to know through her husband that the suit property had been sold by the first respondent to a third party.