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2010 DIGILAW 1572 (MAD)

Swaminathan v. Mangayarkarasi (Decd. ) & Others

2010-04-06

M.VENUGOPAL

body2010
Judgment :- 1. The revision petitioner/petitioner/defendant has projected this Civil Revision Petition before this Court as against the order dated 28.08.2009 in I.A.No.9542 of 2009 in O.S.No.7745 of 1985 passed by the learned III Assistant Judge, City Civil Court, Chennai. 2. Thetrial Court while passing orders in I.A.No.9542 of 2009 in O.S.No.7745 of 1985 on 28.08.2009 as among other things observed that ".....Accordingly respondents took out an application for impleadment in the Final Decree proceedings and the same was allowed. As against the said order, the petitioner filed C.R.P.No.4172 of 2008 and the same was dismissed. So the impleadment was confirmed by the Honble High Court. So the present petition filed by the petitioner is unwarranted and misleading" and resultantly dismissed the application with cost of Rs.500/- to be paid to the respondents. 3. Against the order in I.A.No.9542 of 2009 in O.S.No.7745 of 1985 passed by the learned III Assistant Judge, City Civil Court, the revision petitioner/petitioner/defendant has preferred this Civil Revision Petition. 4. The learned counsel for the Revision Petitioner submits that the order of the trial Court in I.A.No.9542 of 2009 dated 28.08.2009 in dismissing the application by a single line observing that "the petition filed by the petitioner is unwarranted and misleading" is not a valid one in the eye of law because of the simple fact that the said order is not a reasoned one and further the said order has been passed without considering the averments made by the Revision Petitioner in his affidavit in I.A.No.9542 of 2009. 5. Continuing further, the learned counsel for the Revision Petitioner/defendant contends that the eighth respondent was not a party to O.S.No.7745 of 1985 and indeed he was not a party to the Preliminary Decree proceedings and as such, the approach of the trial Court in straight away impleading the eighth respondent to the Final Decree proceedings in O.S.No.7745 of 1985 is contrary to Law. 6. 6. That apart, it is the contention of the Revision Petitioner/Defendant that when once the eighth respondent himself declared that the Revision Petitioner/Defendant alone is the sole and absolute owner of the suit property, which is at the stage of passing of a Final Decree, the eighth respondent, who is not a party to the suit as well as to the Preliminary Decree cannot be allowed to make a claim pertaining suit property, when the earlier C.R.P.No.3937 of 2007 filed by him was dismissed on 24.04.2008. .7. The sum and substance of the contention of the Revision Petitioner/Defendant is that when the eighth respondent was not a party to the suit as well as to the Preliminary Decree and when he had given up his claim over the suit property, the same could not be permitted to be reagitated in the present suit without seeking to withdraw/Recall his memo of compromise dated 111. 1986 filed in C.M.A.No.70 of 1986 in O.S.No.7745 of 1985. 8. Accordingto the learned counsel for the Revision Petitioner/Defendant, the above aspects have not been adverted to or appreciated by the trial Court in a proper perspective, which has resulted in miscarriage of justice and therefore prays for allowing the Civil Revision Petition to prevent an aberration of justice. 9. Per contra, the learned Senior Counsel for the eighth respondent submits that the eighth respondent was made a party to the suit in O.S.No.7745 of 1985 and that he has filed his written statement and on the basis of the written statement, the petitioner had filed an interlocutory application to withdraw the eighth respondents name from the suit and that a Preliminary Decree was passed and an appeal was filed against the Judgement and Decree passed in O.S.No.7745 of 1985 and A.S.No.821 of 1988 filed by the Revision Petitioner/Defendant as appellant was partly allowed by this Court on 04.08.2003 by modifying the Judgment and Decree of the trial Court made in O.S.No.7745 of 1985 dated 23.03.1988 and the Preliminary Decree for partition of the plaintiffs half share passed by the trial Court was modified as 1/6th share etc., 10. Moreover, it is the contention of the learned Senior Counsel appearing for the eighth respondent that the eighth respondent had filed an application in I.A.No.141 of 2007 in O.S.No.7745 of 1985 on the file of the learned III Assistant Judge, City Civil Court, Chennai under Order I Rule 10 and Section 151 of the Civil Procedure Code seeking permission of the Court to implead him as second defendant in the suit and the same was dismissed by the trial Court on 06.09.2007 holding that the eighth respondent need not be impleaded as defendant in the suit. 11. As against the said order of dismissal in I.A.No.141 of 2007 in O.S.No.7745 of 1985 dated 06.09.2007, the eighth respondent filed a Civil Revision Petition in C.R.P.(NPD) No.3937 of 2007 before this Court and this Court on 24.04.2008 has opined that an opportunity must be given to the Revision Petitioner (eighth respondent herein) to vent out his grievance in I.A.No.12753 of 1988, the Final Decree proceedings in O.S.No.7745 of 1985 after filing necessary application to get himself impleaded in the said Final Decree proceedings in lieu of the Judgment in A.S.No.821 of 1988 of this Court etc., 12. In C.R.P.(NPD) No.3937 of 2007, the revision petitioner in C.R.P.(NPD) No.3011 of 2009, who figured as the 6th respondent/first defendant was given an opportunity to raise all his objections open to him in the application to be filed by the eighth respondent herein (revision petitioner in C.R.P.NPD. No.3937 of 2007) in Final Decree proceedings in I.A.No.12753 of 1988 in O.S.No.7745 of 1985 pending before the learned III Assistant Judge, City Civil Court, Chennai within a week from the date of reopening viz., on or before 13.06.2008 and consequently the Civil Revision Petition was dismissed without costs. .13. No.3937 of 2007) in Final Decree proceedings in I.A.No.12753 of 1988 in O.S.No.7745 of 1985 pending before the learned III Assistant Judge, City Civil Court, Chennai within a week from the date of reopening viz., on or before 13.06.2008 and consequently the Civil Revision Petition was dismissed without costs. .13. At this stage, it is useful to refer to the revision petitioners affidavit in I.A.No.9542 of 2009 before the trial Court wherein the Revision Petitioner/Defendant has inter alia stated that in regard to the impleading of the eighth respondent directly to the Final Decree proceedings, there are two orders of this Court one in C.R.P.No.3937 of 2007 filed against the dismissal of I.A.No.141 of 2007 refusing to implead the eighth respondent as a party to the Final Decree proceedings and the second one in C.R.P.No.4172 of 2008 filed against the order in I.A.No.7909 of 2008 directing to implead the eighth respondent as a party in the Final Decree proceedings and as such, the trial Court is to consider the dismissal of C.R.P.No.3937 2007 by an order dated 24.04.2008 while considering the dismissal of C.R.P.No.4172 of 2008 by an order dated 07.01.2009 by this Court without reference to the suit as well as to the Preliminary Decree proceedings. 14. It is not out of place for this Court to pertinently point out that I.A.No.9542 of 2009 before the trial Court has been filed by the present revision petitioner under Section 151 of the Civil Procedure Code. 115. In the counter to I.A.No.9542 of 2009, the eighth respondent has among other things stated that in regard to his impleading though the application was dismissed by this Court, a similar application impleading him in the Final Decree proceedings was filed by him as per the observations made by this Court in C.R.P.No.3937 of 2007 and the same was allowed and as against the said order, the revision petitioner filed C.R.P.No.4172 of 2008 and the same was dismissed by this Court and therefore the order passed by this Court impleading him holds good as long as the order passed in C.R.P.No.4172 of 2008 remains unchallenged. 116. The learned counsel for the Revision Petitioner/Defendant cites the decision of the Honble Supreme Court reported in A.I.R. 2007 Supreme Court 1363 at 1364 (Union of India v. Jai Prakash Singh, wherein at paragraph No.7 it is observed as follows:- "Reasons introduce clarity in an order. 116. The learned counsel for the Revision Petitioner/Defendant cites the decision of the Honble Supreme Court reported in A.I.R. 2007 Supreme Court 1363 at 1364 (Union of India v. Jai Prakash Singh, wherein at paragraph No.7 it is observed as follows:- "Reasons introduce clarity in an order. On plainest consideration of justice, the High Court ought to have set forth its reasons, howsoever brief, in its order indicative of an application of its mind, all the more when its order is amenable to further avenue of challenge. The absence of reasons has rendered the High Court’s judgment not sustainable. Even in respect of administrative order Lord Denning, M.R. in Breen v. Amalgamated Engg. Union1 observed: (All ER p. 1154h) ‘The giving of reasons is one of the fundamentals of good administration.’ In Alexander Machinery (Dudley) Ltd. v. Crabtree2 it was observed: ‘Failure to give reasons amounts to denial of justice. Reasons are live links between the mind of the decision-taker to the controversy in question and the decision or conclusion arrived at.’ Reasons substitute subjectivity by objectivity. The emphasis on recording reasons is that if the decision reveals the ‘inscrutable face of the sphinx’, it can, by its silence, render it virtually impossible for the courts to perform their appellate function or exercise the power of judicial review in adjudging the validity of the decision. Right to reason is an indispensable part of a sound judicial system, reasons at least sufficient to indicate an application of mind to the matter before court. Another rationale is that the affected party can know why the decision has gone against him. One of the salutary requirements of natural justice is spelling out reasons for the order made, in other words, a speaking out. The ‘inscrutable face of a sphinx’ is ordinarily incongruous with a judicial or quasi-judicial performance.” 17. He also relies on the decision of the Honble Supreme Court reported in A.I.R. 2009 Supreme Court 1089 (S.Satnam Singh & Others Vs. Surender Kaur and another), wherein it is laid down as follows:- ."Property can be added in the list of properties after a preliminary decree is passed in a partition suit. He also relies on the decision of the Honble Supreme Court reported in A.I.R. 2009 Supreme Court 1089 (S.Satnam Singh & Others Vs. Surender Kaur and another), wherein it is laid down as follows:- ."Property can be added in the list of properties after a preliminary decree is passed in a partition suit. It is true that a decree, whether preliminary or final, is formal expression of an adjudication which, so far as records, the Court expressing it, conclusively determines the rights of the parties with regard to all or any of the matters in controversy in the suit. The Court, therefore, may not have a suo motu power to amend a decree but the same would not mean that the Court cannot rectify a mistake. If a property was subject matter of pleadings and the Court did not frame an issue which it ought to have done, it can, at a later stage, when pointed out, may amend the decree. The power of amendment, in a case of this nature, would not only be dependent upon the power of the Court but also the principle that a Court shall always be ready and willing to rectify the mistake it has committed. Indisputably, Section 97 provides for an appeal against preliminary decree but the said provision, would not be a bar to file an application for amendment of a decree." 18. The contention of the learned counsel for the Revision Petitioner is that the trial Courts order in dismissing the I.A.No.9542 of 2009 on 28.08.2009 by a single line employing the words unwarranted and misleading or inscrutable face of a sphinx and clearly opposed to the principles of natural justice. 19. It is quite apt for this Court to make a relevant mention that the term Natural Justice has not been defined anywhere. In essence Natural Justice is the natural sense of what is right or wrong. It stands for Justice according to conscience. In a Justice Delivery system, with an Justice oriented approach a Court of Law is bound to hear both sides completely and comprehensively and render a finding in regard to the controversy by passing a speaking full fledged reasoned order for imparting Justice to prevent an aberration of Justice. 20. It stands for Justice according to conscience. In a Justice Delivery system, with an Justice oriented approach a Court of Law is bound to hear both sides completely and comprehensively and render a finding in regard to the controversy by passing a speaking full fledged reasoned order for imparting Justice to prevent an aberration of Justice. 20. Assigning proper reasons while dismissing an application by a Court of law are the fundamentals of a sound Judicial system and atleast an out line of process of reasoning must be sufficient to indicate an application of mind by a Court of Law in the matter in issue. Suffice it for this Court to point out that the reasons replace the concept of subjectivity by objectivity. In short, the reasons are the live links between the mind of the decision decree to the controversy in question and the conclusion arrived at in the considered opinion of this Court. Needless to remind that an unreasoned order may be just, but may not appear to be so to the individual affected. Per contra, a reasoned order will have the appearance of Justice. .21. As far as the present case is concerned, on going through the order passed by the trial Court in I.A.No.9542 of 2009, this Court opines that though it is not a speaking order yet the dismissal of the application is a correct one and in this connection, this Court opines that it is palatable for a trial Court to ascribe at least an out line of reasoning by dealing with the averments or counter averments and to come to a conclusion in the near future so that there may not be any room for grievance/complaint from any quarters much less from the litigants point of view as to the adherence of the Principles of Natural Justice. 22. 22. On a careful consideration of respective contentions and over all assessment of the facts and circumstances of the case in an integral fashion, which floats on the surface, this Court comes to an inevitable conclusion that the order passed by this Court impleading the eighth respondent in the Final Decree proceedings will holds good inasmuch as the same has become conclusive and final by means of an order passed in C.R.P.No.4172 of 2008 and moreover it is for the trial Court to act within the parameters of law and in accordance with law and by any means the parties cannot dictate terms to a Court of Law. Further, they cannot lay down any Tailor made procedure to be followed by a Court of law while dispensing justice in our processual system of jurisprudence. Viewed in that perspective, the I.A.No.9542 of 2009 filed by the Revision Petitioner before the trial Court under Section 151 of the Civil Procedure Code is a redundant, surplusage and an otiose one and consequently, the Civil Revision Petition fails. 23. In the result, the Civil Revision Petition is dismissed and having regard to the facts and circumstances of the case, the parties are directed to bear their own costs. Consequently, the connected miscellaneous petition is also dismissed.