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Madras High Court · body

2009 DIGILAW 5198 (MAD)

Rakkiya Gounder & Others v. Arukkaniammal

2009-11-30

M.VENUGOPAL

body2009
Judgment :- The revision petitioners/appellants/defendants have filed this present civil revision petition as against the Judgment dated 12. 2009 in C.M.A.No.20 of 2008 passed by the learned First Additional Subordinate Judge, Erode confirming the fair and decretal order dated 4. 2008 in I.A.No.384 of 2008 in O.S.No.817 of 2005 passed by the learned Principal District Munsif, Erode. 2. The revision petitioners/appellants have preferred C.M.A.No.20 of 2008 on the file of the learned First Additional Subordinate Judge, Erode and the first appellate authority has passed Judgment on 12. 2009 inter alia stating that no case has been made out to interfere with the order dated 4. 2008 passed by the trial Court in I.A.No.384 of 2008 in O.S.No.817 of 2005. .3. The trial Court, while passing orders in I.A.No.384 of 2008 on 4. 2008 has inter alia opined that the main suit has been posted in the list on 8. 2006 and that P.W.1 has been examined and on 8. 2006 and that P.W.1 has been examined and on 8. 2006, I.A.No.994 of 2006 has been filed by the revision petitioners to set aside the earlier exparte order dated 11. 2006 and the same has been allowed on 19. 2006 and again the case has been posted for trial on 29. 2006 and at that stage, I.A.No.1240 of 2006 has been filed praying for permission of the Court to file additional written statement on behalf of the revision petitioners and the same has been allowed and again the matter has been posted for enquiry on 21. 2007 and later the matter since been adjourned to 22. 2007, 22. 2007, 22. 2007, 3. 32007, 13. 2007 and on 20.3.2007 in I.A.300 of 2007, an Advocate Commissioner has been appointed and he has filed a report on 26. 2007 and Exs P1 to P3 have been marked and in the suit, an exparte decree has been passed. 4. Continuing further, I.A.No.875 of 2007 has been filed to set aside an Exparte Decree and the matter has been adjourned for enquiry on 19. 2007, 19. 2007,19. 2007,19. 2007 and numerous opportunities have been provided to cross examine P.W.1 and since P.W.1 has not been cross examined, the Advocate Commissioners report has been filed and later C.R.P.NO.3394 of 2007 has been filed and allowed and on 12. 2007, C.R.P.No.3395 of 2007 has been dismissed and from 112. 2007 till 31. 2007, 19. 2007,19. 2007,19. 2007 and numerous opportunities have been provided to cross examine P.W.1 and since P.W.1 has not been cross examined, the Advocate Commissioners report has been filed and later C.R.P.NO.3394 of 2007 has been filed and allowed and on 12. 2007, C.R.P.No.3395 of 2007 has been dismissed and from 112. 2007 till 31. 2008, no endeavour has been made to cross examine P.W.1 on the side of the revision petitioners and also that no one appeared on behalf of the revision petitioners/defendants and finally a preliminary Decree has been passed, after setting aside the defendants as exparte. Further, the trial Court has observed that the reason assigned on behalf of the revision petitioners that though the petitioners have been ready to cross examine P.W.1 since the Advocate Commissioner has been engaged in his personal matter, P.W.1 cannot be cross examined, is not an acceptable one and resultantly dismissed the application without costs. .5. In this revision petition, the learned counsel appearing for the revision petitioners/defendants submits that both the Courts below have failed to appreciate that the application to set aside an exparte decree has been projected in time and that the revision petitioners/defendants ought to be provided with an opportunity to contest the matter on merits and the suit filed by the respondent/plaintiff is one for partition and separate possession and the suit in respect of the share of the first revision petitioner/first defendants deceased son and as a matter of fact, the trial Court should have exercised its discretion and power as per Order 17 Rule 3 of CPC and indeed the first revision petitioner is aged about 84 years and the second and third revision petitioners are legal representatives of the deceased son of the first revision petitioner and they were prevented by sufficient cause from appearing before the Court on 31. 2008 and therefore prays for allowing the revision petition in the interest of justice. 6. In response, the learned counsel appearing for the respondent/plaintiff submits that in the main suit, to cross examine P.W.1, numerous adjournments were granted from 29. 2007 till 31. 2008 and finally even on 31. 2008 and therefore prays for allowing the revision petition in the interest of justice. 6. In response, the learned counsel appearing for the respondent/plaintiff submits that in the main suit, to cross examine P.W.1, numerous adjournments were granted from 29. 2007 till 31. 2008 and finally even on 31. 2008, when the matter has been posted, on behalf of the revision petitioners/defendants have not been prepared to cross examine P.W.1 and therefore, an exparte decree has been passed by the trial Court in a realistic fashion and pursuant to the passing of the preliminary decree, I.A.No.278 of 2008 has been filed praying for passing of the final decree and only to drag on the proceedings, the revision petitioners have projected I.A.No.384 of 2008 with an ulterior motive, both the parties have approached the subject in a proper prospective and passed Judgment and decree on merits which need not be interfered with by this Court sitting in a revision. 7. It is useful to refer to the affidavit filed by the first revision petitioner in I.A.No.384 of 2008 before the trial Court inter alia mentioning that on 1. 2008, their counsel has cross examined the plaintiff and the same has been posted to 1. 2008 for further cross examination of the plaintiff and due to personal inconvenience of the Advocate Commissioner, the revision petitioners counsel has not been in a position to complete the cross examination of the plaintiff (P.W.1)and really speaking, the revision petitioners have ready and willing to complete the cross examination of P.W.1 and to proceed with the conduct of the trial, but however, the trial Court has passed an exparte decree in the suit on 31. 2008 and that the revision petitioners/defendants are neither negligent nor careless in prosecuting their case and therefore has prayed for to set aside the exparte decree dated 31. 2008. .8. In the counter filed on behalf of the respondent/plaintiff, it is categorically mentioned that the trial Court has appointed an Advocate Commissioner for cross examining the plaintiff as P.W.1 and the plaintiff has been examined as P.W.1 in June 2006 and Exs P1 to P3 have been marked in the presence of Advocate Commissioner and the petitioners or their counsel have not cross examined and posted on 16. 2007 and 26. 2007 respectively for cross examination of P.W.1. On 26. 2007 and 26. 2007 respectively for cross examination of P.W.1. On 26. 2007, the petitioners have been set exparte and the suit has been decreed and later in I.A.No.875 of 2007 has been filed by the revision petitioners to set aside the exparte decree and the same has been allowed on payment of costs and subsequently, the trial Court has reissued warrant to the Commissioner for examining P.W.1/plaintiff and later C.R.P.No.3394 of 2007 has been filed before this Court against the order in the memo passed by this Court and the same has been dismissed by this Court at the stage of admission and from 29. 2007 till 31. 2008 for the purpose of cross examination of P.W.1, the matter has been posted but the revision petitioners have not been ready and willing to cross examine the respondent/plaintiff and resultantly, the trial Court has been left with no option but to call the petitioners/defendants absent and set them exparte and the suit has been decreed on 31. 2008 and only when a final decree application has been projected and the same has been posted to 23. 2008, at that stage, the revision petitioners have projected I.A.No.384 of 2008 with a malafide intention to protract the proceedings. 9. Admittedly, it is not in dispute that the respondent/plaintiff as P.W.1 has been partly cross examined on the side of the revision petitioners/defendants in the presence of Advocate Commissioner. Unfortunately, some how or other for cross examination of P.W.1, the matter has been pending before the trial Court on numerous occasions and left with no option, the trial Court has been finally perforced to set the revision petitioners/defendants set exparte on 31. 2008. As far as the present case is concerned, the respondent/plaintiff is around 78 years and equally, the first revision petitioner/first defendant is also aged about 84, as informed by the learned counsel appearing for the revision petitioners/defendants. .10. A scrutiny of the averment made in I.A.No.384 of 2008 filed by the first revision petitioner/first defendant speaks of the inconvenience of the Commissioner to be the reason for the revision petitioners/defendants counsel in not able to complete the cross examination of P.W.1. .10. A scrutiny of the averment made in I.A.No.384 of 2008 filed by the first revision petitioner/first defendant speaks of the inconvenience of the Commissioner to be the reason for the revision petitioners/defendants counsel in not able to complete the cross examination of P.W.1. At this juncture, the learned counsel for the revision petitioners/defendants contends that a Court of Law is to adopt a liberal, meaningful and purposeful approach in interpreting the term "sufficient cause" and while doing so, a Court of Law shall not adopt a pedantic approach, instead it should approach the matter in issue in a pragmatic common sense approach and if an exparte decree in issue is not set aside then a meritorious matter will be thrown at the threshold and the cause of justice will be defeated. 11. In short, the substance of the contention put forward by the learned counsel for the revision petitioners/defendants is that technical considerations over rides the deliverance of substantial justice in the processual system of jurisprudence. However, per contra, the learned counsel for the respondent/plaintiff submits that because of the in action on the part of the revision petitioners/defendants in not diligently making an endeavour to cross examine P.W.1, the valuable right accrued to respondent/plaintiff cannot be so easily be displaced by a Court of Law in a cavalier fashion and rights accrued to the party cannot be so easily be disturbed. 12. On a careful consideration of the respective contentions and also taking note of the fact that numerous opportunities have been provided to the revision petitioners/defendants to cross examine P.W.1 in the presence of the Advocate Commissioner and since the Court of Law is not suppose to exercise its power to legalise injustice on technical grounds and also bearing in mind, an important principle that substantial justice will have to be delivered to the parties, by resorting to a justice oriented approach, this Court on the basis of Equity, FairPlay, Good Conscience and even as a matter of prudence, allows this civil revision petition by setting aside the Judgment dated 12. 2009 in C.M.A.No.20 of 2008 passed by the learned First Additional Subordinate Judge, Erode confirming the fair and decretal order dated 4. 2009 in C.M.A.No.20 of 2008 passed by the learned First Additional Subordinate Judge, Erode confirming the fair and decretal order dated 4. 2008 in I.A.No.384 of 2008 in O.S.No.817 of 2005 passed by the learned Principal District Munsif, Erode and also resultantly directs the trial Court to ensure that P.W.1 is cross examined in the presence of Advocate Commissioner on the side of the revision petitioners/defendants, within a period of three weeks from the date of receipt of a copy of this order and also to take further proceedings in the matter in issue after providing due opportunities to the parties concerned. 13. In the result, this revision petition is allowed and the Judgment dated 12. 2009 in C.M.A.No.20 of 2008 passed by the learned First Additional Subordinate Judge, Erode confirming the fair and decretal order dated 4. 2008 in I.A.No.384 of 2008 in O.S.No.817 of 2005 passed by the learned Principal District Munsif, Erode is set aside by this Court for the reasons assigned in this revision and the trial Court is directed to ensure that P.W.1 is cross examined in the presence of an Advocate Commissioner on the side of the revision petitioners/defendants within a period of three weeks here from and also to take further proceedings in the matter in issue after providing due opportunities to the parties concerned and also dispose of the main suit in any event within a period of three months from the date of receipt of a copy of this order and report compliance to this Court with out fail. The parties are directed to lend a helping hand to the trial Court in regard to the completion of proceedings in the main suit within the time fixed by this Court. Consequently, connected M.P.No.1 of 2009 is closed.