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2003 DIGILAW 1065 (MAD)

V. Guganeswari v. A. Shahul Hameed

2003-07-15

FAKKIR MOHAMED IBRAHIM KALIFULLA

body2003
Judgment :- 1. The challenge in this revision is to the orders of the Courts below in refusing to set aside the decree dated 22.2.1996 on the footing that it was an appealable decree and that the application under Order IX Rule 13 CPC was not maintainable. 2. On a perusal of the judgment and decree dated 22.2.1996, I am unable to accept the said reasoning of the Courts Below. It is true that in the judgment and decree dated 22.2.1996, it is stated that issues had already been framed for trial, that PW.4 was ready for examination, and that the cross-examination of PW.1 was not proceeded with, as the counsel for the defendants was not willing. So saying, the trial Court, merely by stating that PW.1 had already been examined in Chief, that Exs A1 to A7 had been marked, held that the claim made in the suit was proved, and granted the decree. Merely on that basis, it cannot be held that triable issues involved in the suit were found to have been established in favour of the respondent/plaintiff in order to hold that the judgment came to be rendered on merits and therefore, the same cannot be construed as an ex-parte decree to invoke Order IX, Rule 13 CPC. In this respect, the judgment of the Honourable Supreme Court reported in 2003 (2) CTC 242 = 2003 3 L.W 489 ( B. Janakiramaiah Chetty v. A.K. Parthasarathi and Ors. ) was cited and this is apposite in all respects. Paras 11 & 12 of the said judgment can be usefully referred to for our present purpose: “11. In an instant case, the judgment of the Court was in the following terms: “Suit for recovery of a sum of Rs. 10,00,000 being the damages caused on account of arrest and detention illegally by the defendants on 18.4.1989 and for costs. After filing of written statement by the defendant the following issues were settled for trial: 1. Whether on 18.4.1989 at 10.00 a.m. The 1st defendant and his staff whisked away the plaintiff in a high handed manner, while he was in his shop? 2. Whether the plaintiff was tortured by 1st and 2nd defendants? 3. Whether the learned Advocate Commissioner Chittoor found the plaintiff in Bhagayam P.S.? 4. Whether 1st defendant denied the quality of changes and Courts of A.P.? 5. 2. Whether the plaintiff was tortured by 1st and 2nd defendants? 3. Whether the learned Advocate Commissioner Chittoor found the plaintiff in Bhagayam P.S.? 4. Whether 1st defendant denied the quality of changes and Courts of A.P.? 5. Whether the plaintiff is entitled for damages as prayed for? 6. To what relief? Additional issues reframed on 1.12.1997: 1. Whether this Court has no jurisdiction to try this suit? 2. To what relief? D.1 to D.3 called absent. No presentation for the defendants. Suit is decreed with costs, together with interest at 6% per annum from the date of suit till realization.” 12. This clearly has imprints of an ex parte adjudication and not of a decision on merits. There is not even any indication as to what evidence was evaluated and/or whether the merits were tested.” 3. In view of categoric pronouncement of the Honourable Supreme Court and as I am convinced that the judgment and decree dated 22.2.1996 made in O.S. No. 6621 of 1988 cannot be construed as one passed on merits, the petitioners were fully entitled to maintain the present Application in I.A. No. 5209 of 1996 filed under Order IX, Rule 13 CPC inasmuch as the judgement and decree dated 22.2.1996 was only an ex parte decree. On a perusal of the affidavit filed in support of I.A. No. 5209 of 1996, I find that the petitioners had genuine difficulties for not proceeding with the trial of the suit on the date on which it was posted for hearing. 4. In such circumstances, since the application came to be filed within 7 days viz., on 29.2.1996 itself and the reasons being bona fide, the petitioners application deserves to be allowed. Accordingly, while setting aside the orders impugned in this revision, the petitioners application in I.A. No. 5209 of 1996 shall stand allowed and the suit shall be restored to file to be decided on merits. This revision petition is allowed. Since the suit is of the year 1988, the trial court shall proceed with the trial of the suit expeditiously and dispose of the same within a period of four months from the date of receipt of copy of this order. No costs. Consequently CMP No. 728 of 2003 is closed.