11 Sep 2023 11:30 AM GMT
The Kerala High Court has held that even if an ex parte decree is passed in a suit for specific performance, the Court has to take a liberal view to advance justice by condoning the delay of defendant and affording the party an opportunity to defend the suit.Justice P Somarajan observed that a party can be penalized for the delay by imposition of cost but, court should not curtail the...
The Kerala High Court has held that even if an ex parte decree is passed in a suit for specific performance, the Court has to take a liberal view to advance justice by condoning the delay of defendant and affording the party an opportunity to defend the suit.
Justice P Somarajan observed that a party can be penalized for the delay by imposition of cost but, court should not curtail the party's right to defend the suit for specific performance.
“In the matter of condonation of absence of party, especially in a suit for specific performance, the court has to take a liberal view so as to advance justice and not to defeat, unless the negligence is so grave to the extent of outweighing the benefit that can be obtained by the party by prosecuting or defending the suit. It is permissible to penalize the party in terms of money for the laches, not by curtailing the valuable right to proceed with the suit or to defend the suit, especially in the matter of specific performance.”
In a suit for specific performance of sale, an ex parte decree was passed. It was challenged by the original defendant in appeal along with an application for condonation of delay of 1026 days. The appeal was dismissed by the first appellate court and revision was preferred before the High Court.
The Court held that while passing an order in a suit for specific performance, the Court has to address the readiness and willingness of the party to perform his part under Section 16 of the Specific Relief Act. The Court must also exercise its discretion whilst granting compensation under Section 20 of the Act. Section 20 deals with the discretion of the court in granting specific performance and denying specific performance. The Court observed that the decision of the trial court as well the appellate court did not consider these aspects.
“Necessarily, a judgment in a suit for specific performance of the contract must reflect all the relevant aspects, especially the discretion to be exercised under Section 20 of the Act, even though the defendant remained ex parte. That cardinal principle was not adhered to by the trial court as well as the first appellate court. In fact, the decree passed by the trial court and the judgment thereof suffers material defects.”
On the basis of the above observations, the Court condoned the delay by imposing a cost of rupees ten thousand rupees on the original defendant. Revision petition was allowed and suit for specific performance was restored.
Counsel for the revision petitioner: Advocates R. Harishankar and Parvathy Nair
Counsel for the respondent: Advocates Rajesh Sivaramankutty and K.Vijina
Citation: 2023 LiveLaw (Ker) 468
Case name: Vasu v. Narayanan
Case number: CRP No. 336 Of 2021
Click Here To Read/Download The Order