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2007 DIGILAW 451 (MAD)

Narayanaswamy Naidu and Another v. Ramamoorthy

2007-02-03

K.VENKATARAMAN

body2007
Judgment : K. VENKATARAMAN, J. Defendants 3 and 4 in O.S. No. 352 of 1987 on the file of the District Munsif, Cuddalore who are respondents 3 and 4 in A.S. No. 164 of 1990 before the Principal Subordinate Judge, Cuddalore are the appellants before this Court. 2. The respondent in this appeal has filed O.S. No. 352 of 1987 on the file of the District Munsif, Cuddalore against the Assistant Director of Survey and Land Records, Cuddalore, Executive Officer, Vadalur Panchayat, the appellants herein and one Radhakrishnan Naidu for the following reliefs: i) set aside the order of the 1st defendant dated 30.4.1984 and determine all boundaries of Survey Nos. 559, 560/1 and 560/5 by means of a decree with reference to the measurements as found in the old Field Measurement book; ii) order costs of the suit; and iii) grant such other relief as may be just, proper and necessary. 3. The said suit has been dismissed by the learned District Munsif, Cuddalore against which the respondent herein preferred an appeal in A.S. No. 164 of 1990 before the Principal Subordinate Judge, Cuddalore. In the said appeal, notice has been dispensed with in respect of respondents 2 to 5 on an Application preferred by the respondent herein in I.A. No. 204 of 1990 dated 30.10.1990. Thereafter, the appeal was allowed, whereby the appellate Court has set aside the order of the first defendant dated 30.4.1980 and also granted a relief of possession as against respondents 2 to 4 in the said appeal. 4. Later, defendants 3 and 4 in the said suit who are respondents 3 and 4 in the above referred appeal have filed application in I.A. No. 221 of 1998 in A.S. No. 164 of 1990 to set aside the judgment and decree passed on 27.2.1991 and for rehearing of the appeal in A. S. No. 164 of 1990. The said application has been dismissed by the learned Subordinate Judge, Cuddalore on 21.12.2000 and the present appeal has been filed against the said order. 5. Mr. The said application has been dismissed by the learned Subordinate Judge, Cuddalore on 21.12.2000 and the present appeal has been filed against the said order. 5. Mr. V. Lakshminarayanan, learned counsel appearing for the appellants has submitted that: a) In O.S. No. 352 of 1987 before the District Munsif, Cuddalore, summons were not served on the appellants and hence, notice should not have been dispensed with in A.S. No. 164 of 1990; b) though the respondent, being the plaintiff in O.S. No. 352 of 1987, has sought for a prayer to set aside the order dated 30.4.1984 and determine all boundaries of Survey Nos. 559, 560/1 and, 560/5 by means of decree with reference to measurements and the said suit was dismissed, the appellate Court has granted a prayer for possession which has not been sought for by the respondent viz., the plaintiff in O.S. No. 352 of 1987; c) The appellate Court should not have dispensed with notices to the appellants herein in view of Order 41Rule 14(4) C.P.C. According to the learned counsel, notice could be dispensed with in any proceeding incidental to an appeal and not in the main appeal itself; d) The appellate Court should not have dispensed with notice to the appellants herein when it has granted the relief of possession which will adversely affect the appellants herein especially when such a relief has not been sought for in the suit in O.S. No. 352 of 1987 on the file of the District Munsif, Cuddalore; e) The Madras Amendment will not prevail over the amendment made in C.P.C., in 1976 and Order 41Rule 14(4) C.P.C., as amended alone has to be taken into consideration while dispensing with notice to the respondents in the said appeal. 6. 6. Per contra, the learned counsel appearing for the respondent has contended, that: a) Since the appellants in this appeal have remained ex parte before the Court below, notice has been dispensed with in the appeal in A.S. No. 164 of 1990 before the Sub-Court, Cuddalore; b) Even though a specific prayer for possession has not been included in the prayer to the plaint in O.S. No. 352 of 1987, there are averments in the plaint to that effect and also Court- fee has been paid for the relief of possession and hence, it cannot be stated that the respondent herein, being plaintiff in O.S. No, 352 of 1987 on the file of the District Munsif, Cuddalore, is not entitled for a relief of possession; c) In view of the Madras Amendment, Order 41, Rule 14 notice has been dispensed with for the appellants herein before the appellate Court and hence, there is no necessity for rehearing the appeal. 7. I have heard the counsel for the appellants as well as the respondent. 8. In this matter, the Registry has been directed to call for the entire records before the Court below to find out whether summons have been served to the appellants in O.S. No. 352 of 1987, but, unfortunately, the entire records seam to have been destroyed and hence, it is not possible for this Court to find out whether summons have been served to the appellants or not. In the affidavit filed in support of the Application for requiring the appeal to be re-heard, the appellants have come forward with a plea that summons have not been served to them in the suit. But, in the counter to the said Application, the respondent herein has stated that summons have been served to the appellants herein. In view of the fact that the records are not before this Court, it could not be said whether summons have been served on the appellants or not. But, at the same time, it could be decided as to whether notice can be dispensed with to the appellants in A.S. No. 164 of 1990 before the Sub-Court, Cuddalore. As could be seen from the judgment rendered in A.S. No. 164 of 1990, notice seems to have been dispensed with to respondents 2 to 5 in the said appeal viz., appellants herein and also the others in the said appeal. As could be seen from the judgment rendered in A.S. No. 164 of 1990, notice seems to have been dispensed with to respondents 2 to 5 in the said appeal viz., appellants herein and also the others in the said appeal. It seems that the respondent herein has filed I.A. No. 204 of 1990 for dispensing with notice for respondents 2 to 5 in the said appeal and the same seems to have been ordered on 30.10.1990. 9. The appellate Court, especially while granting a relief against the respondents, that is to say, granting a relief of recovery of possession against the respondents in the said appeal, ought to have taken care to see to it that the respondents have been served with the notice in the said appeal. Especially when the respondent herein, who was the plaintiff in O.S. No. 352 of 1987, has not sought for any relief of recovery of possession, the appellate Court should have taken care in sending notice to respondents 2 to 5 in the said appeal. But, unfortunately the appellate Court has not done so. 10. The learned counsel for the appellants has cited a decision in L. Sooraiah v. L. Somaraju (1988) 1 ALT 4 . That is a case where 7th defendant in O.S. No. 110 of 1971 before the trial Court remained ex parte and he has been impleaded as 6th respondent in A.S. No. 947 of 1978 before the High Court of Andhra Pradesh. Notice has been dispensed with for 6th respondent in view of Order 41Rule 14C.P.C., as amended in Madras Act and adopted in Andhra Pradesh. Notice has been dispensed with for 6th respondent in view of Order 41Rule 14C.P.C., as amended in Madras Act and adopted in Andhra Pradesh. After the disposal of the appeal, a Review Application has been preferred wherein it has been pointed out that even though Order 41Rule 14 C.P.C., was amended in Madras and that was adopted in Andhra Pradesh permitting the appellants to dispense with notice in the appeal in case where the respondent who was a defendant in the lower Court has remained ex parte, in view of the fact that Order 41Rule 14 (4) C.P.C., clearly says that notice can be dispensed with only in any proceeding incidental to an appeal, but, not in the main appeal and considering the said position, the Review Application has been allowed, citing the said judgment, the learned counsel for the appellants would vehemently contend that notice should not have been dispensed with in respect of respondents 2 to 5 in the said appeal. Thus, according to the learned counsel for the appellants, only in any proceeding incidental to an appeal, notice can be dispensed with and not in the main appeal. 11. I am able to see force in the said contention of the learned counsel for the appellants. In the case on hand, the appellate Court has granted a relief of possession as against the appellants and others even though such a prayer has not been sought for in the suit. Hence, it is all the more, the appellate Court should have issued notice to the appellants herein before granting such relief. 12. The learned counsel for the appellants has drawn my attention to another judgment Bacha Rowther v. Chidambaram AIR (32) 1945 Mad. Hence, it is all the more, the appellate Court should have issued notice to the appellants herein before granting such relief. 12. The learned counsel for the appellants has drawn my attention to another judgment Bacha Rowther v. Chidambaram AIR (32) 1945 Mad. 86 : (1944) 2 MLJ 338 wherein it has been held as follows: “In our opinion, when an appeal is filed and the only respondents to that appeal are persons who have allowed the proceedings in the trial Court to go on ex parte, it is undesirable to apply the proviso to Rule 14 of Order 41, Civil Procedure Code without an attempt to serve at least one of those respondents.” Yet another decision that has been relied on by the learned counsel for the appellants is that A ravindakshan v. Sukumaran A ravindakshan v. Sukumaran A ravindakshan v. Sukumaran 2005 (1) KLT 107 wherein in the head notes, it has been stated that: “The Code of Civil Procedure prior to its amendment by the Amending Act of 1976 contained a Chapter Order 37 in the First Schedule to it. It enables Summary Suits to be filed. In exercise of the power conferred by Section 122 and other enabling provisions in the Code, this Order 37 was omitted prospectively by Notification in the Kerala Gazette No. 23 dated 9.6.1959. Thereafter so far as the Courts in Kerala, were concerned, the procedure in Summary Suits was not available. Thereafter, the Parliament in its wisdom passed and brought into force the Code of Civil Procedure (Amendment) Act, 1976, which, amongst other things, substituted an entire and new Order 37 and Rules therein having force throughout India. The statement of objects and reasons for this substitution by a new Order 37 is stated in Clause 87(i). The provisions of Order 37 and the Rules therein substituted by the Amendment Act of 1976 is in force in Kerala and have not been annulled so far. The Amendment Act, 1976 extends to the whole of India, which includes Kerala also. The provisions of Order 37 and the Rules therein substituted by the Amendment Act of 1976 is in force in Kerala and have not been annulled so far. The Amendment Act, 1976 extends to the whole of India, which includes Kerala also. Therefore, the new Order 37 is also in force in Kerala after the Amendment Act of 1976 came into force on 1.2.1977.” The other judgment that has been cited by the learned counsel for the appellant is Palanisamy v. State of Tamil Nadu AIR 1986 SC 589 : Palanisamy v. State of Tamil Nadu (1986) 1 SCC 615 wherein it has been held that: “ 11. Now reverting to Section 97(1) of the Amending Act, the High Court was in error in holding that because no amendment had been made to Rule 72 by the Amending Act, Section 97(1) had no effect on the Rule as it was in force in the State of Uttar Pradesh before the commencement of the Amending Act. As observed earlier, the effect of Section 97(1) is that all local amendments made to any of the provisions of the Code either by a State Legislature or by a High Court which were inconsistent with the Code as amended by the Amending Act stood repealed irrespective of the fact whether the corresponding provision in the Code had been amended or modified by the Amending Act and that was subject only to what was found in sub-section (2) of Section 97. Sub-section (3) of Section 97 provides that save as otherwise provided in sub-section (2) the provisions of the Code as amended by the Amending Act shall apply to every suit, proceeding, appeal or application pending at the commencement of the Amending Act or instituted or filed after such commencement notwithstanding the fact that the right or cause of action in pursuance of which such suit, proceeding, appeal or application is instituted or filed had been acquired or had accrued before such commencement. Sub-section (3) of Section 97 sets at rest doubts, if any, by making the Code as amended by the Amending Act applicable to all proceedings referred to therein subject to subsection (2) of Section 97. 12. Sub-section (3) of Section 97 sets at rest doubts, if any, by making the Code as amended by the Amending Act applicable to all proceedings referred to therein subject to subsection (2) of Section 97. 12. The High Court was therefore in error in holding that the amended Rule 72 of Order 21 which was in force in the State of Uttar Pradesh prior to 1.2.1977 continued to be in force after that date and that the Court sale held in which the decree-holder had purchased the property without the express permission of the executing Court was unassailable under sub-rule (3) of Rule 72.” 13. The above said judgments will clearly show that the legal position after Amendment of 1976 is that notice in a proceeding incidental to an appeal can be dispensed with and not in the main appeal itself. It is no longer now permissible to dispense with notice in the main appeal before the appellate Court in respect of defendants or respondents who have remained ex parte in the Court below, though such notice can be dispensed with in a proceeding incidental to the appeal. In other words, after amendment, it is not open to the appellate Court to dispense with notice as far as hearing of main appeal is concerned in respect of the respondents who, as defendants remained ex parte before the Court below. 14. In view of the fact that the Sub-Judge, Cuddalore has granted a relief of possession against the appellants herein who were respondents 3 and 4 in A.S. No. 164 of 1990 which has not been prayed by the appellants therein and in view of the settled proposition of law as set out in the judgments referred to above, the order made in I.A. No. 221 of 1998 in A.S. No. 164 of 1990 dated 21.12.2000 is liable to be set aside. The appellate Court should have considered the application that has been filed by the appellants herein in I.A. No. 221 of 1998 in A.S. No. 164 of 1990 for rehearing of the appeal. The appellate Court has not considered, in proper perspective, the application that has been filed by the appellants in I.A. No. 221 of 1998 in A.S. No. 164 of 1990. The appellate Court has not considered, in proper perspective, the application that has been filed by the appellants in I.A. No. 221 of 1998 in A.S. No. 164 of 1990. Hence, the order passed in I.A. No. 221 of 1998 in A.S. No. 164 of 1990 by the Sub-Court, Cuddalore on 21.12.2000 is liable to be set aside and accordingly, set aside. 15. The learned Subordinate Judge, Cuddalore is directed to re-hear the appeal in A.S. No. 164 of 1990 after serving notice to the appellant therein and also to the respondents therein informing about the hearing of the appeal. I deem it necessary to direct the learned Judge to complete all the formalities of issuing notice to the appellant as well as respondents within a short span of time and dispose of the appeal as expeditiously as possible preferably on or before 27.4.2007. 16. The civil miscellaneous appeal stands allowed. However, there is no order as to costs. The connected miscellaneous petition is closed.