PALANISAMIALIASPALANIAPPAN Vs. P K DAMODARAN DIED

JUDGEMENT

(1.) THE above revision is directed against the order of the I Additional Subordinate Judge, Coimbatore, in C.M.A.No.96 of 1991 confirming the order of the I Additional District Munsif, Coimbatore, in I.A.No.517 of 1900 in O.S.No.1450 of 1973.

(2.) I.A.No.517 of 1980 was filed underO.9, Rule 13, C.P.C. read with Sec.151, C.P.C. and Sec.17 of the Limitation Act, by the judgment debtor.

(3.) MR.T.R.Mani, learned senior counsel for the petitioner took me through the affidavit of the petitioner and the supporting affidavit and contended that the factum of negotiations between the landlord and tenants had been clearly established. The third party had also in his supporting affidavit mentioned that he was informed by the petitioner that the suit against him had been withdrawn. But he was also examined in the evidence as P.W.2. In fact, P.W.2 was related to the respondents. There was no evidence at all on the side of the respondents in this context and hence the Courts below ought to have accepted the case of the petitioner. The findings otherwise by the Courts below are totally unsustainable and without any evidence. The only document filed on the side of the respondents, the service of notice on the petitioner in E.P.No.140 of 1996 was not properly proved in accordance with law by examining any witness. The payment of Rs.1,500 towards sale consideration by the petitioner has not been disputed and there was also no explanation by the respondents for having received the said amount. The execution of the agreement had also not been denied. Therefore, the petitioner had established fraud and also the respondents had not adduced any rebuttal evidence. In this background the evidence clearly established fraud as alleged by the petitioner. On 7.12.1971, the suit notice which had been issued for which a reply was also sent on 23.12.1971. It is pertinent to note that thereafter nothing happened and the suit was filed only on 28.7.1973 and the petitioner had filed appearance on 12.10.1973. In the meantime it was only due to negotiations, and payment of Rs.1,500 which was received by the respondents, the petitioner did not attend the further proceedings in the suit.