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2010 DIGILAW 4770 (MAD)

Venkatasubba Reddiar v. Arunachala Reddiar

2010-10-28

S.PALANIVELU

body2010
Judgment :- 1. The petitioners are the plaintiffs in O.S.No.76 of 1998 on the file of Additional Sub Court, Tindivanam. The suit is for partition. An exparte preliminary decree was passed on 10.4.2006. Thereafter, they filed I.A.No.373 of 2008 for appointment of an Advocate Commissioner to divide the properties as per the preliminary decree and to deliver the divided properties in their favour. When the application was pending, the respondent/defendant filed a petition in I.A.No.156 of 2006 to set aside the exparte preliminary decree. The plaintiffs filed their counter. Since the respondent did not take steps to implead the legal heirs of respondents 11, 13, 14, 18 and 28 and have not paid batta for respondents 3 to 8, the above said petition was dismissed by the Court on 28.11.2007. 2. The respondent, thereafter, filed an application in I.A.No.152 of 2008 to set aside the dismissal of I.A.No.156 of 2006 under Order IX, Rule 4, CPC and the same was allowed without notice to these petitioners. Likewise, the petitioners were not given notice in the interlocutory application for setting aside the exparte decree. Again, without notice to these petitioners, the final decree proceedings was closed. 3. The petitioners, therefore, filed an application to recall the orders in I.A.No.156 of 2006 dated 03.7.2009, I.A.No.152 of 2008 dated 18.6.2009 and I.A.No.290 of 2009 dated 24.8.2009. The learned Additional Sub Judge has rejected the application, without taking it on file, by observing that the Court, in order to render justice and since the suit is of old one, had inadvertently allowed the applications on exonerating respondents 3 to 28 on the endorsement made by the counsel for the respondent, which is not illegal or flaw on the part of the Court, without imposing any costs and without asking other respondent counsel as to allowing the application, thereby, restoring the original suit and therefore, rejected the said application for recalling the orders passed in three I.As., as infructuous. 4. The learned counsel for the petitioner would very much assail the order challenged before this Court by stating that it is mandatory on the part of the Court to direct notice to these petitioners and without ordering notice, allowing the applications is not proper. 4. The learned counsel for the petitioner would very much assail the order challenged before this Court by stating that it is mandatory on the part of the Court to direct notice to these petitioners and without ordering notice, allowing the applications is not proper. He further states that even though there is any procedural irregularity on the part of the petitioners in filing a single application for recalling the orders passed in three petitions, justice cannot be denied to them. 5. Per contra, the learned counsel for the respondent would submit that there is no irregularity or illegality committed by the Court below and the order challenged before this Court can be justified in all aspects. 6. The learned counsel for the petitioner, in support of his contention, placed reliance on the decision of mine in Thangavelpillai v. Periyasamy Udayar [ (2008) 6 MLJ 901 ], wherein I have dealt with the importance of giving notice to the other side when an I.A. is filed under Order IX Rule 9 CPC, which reads as under: "It has been made clear that even though Order 9 Rule 4 of C.P.C. has not provided for the issuance of notice to the other side, the Court is burdened with the duty of ordering notice to the respondent. Ignoring the said principle is a glaring violation of well settled principles. The submission put forth on behalf of the petitioner could not be negated without examinationn of relevant provisions. I find considerable force in the arguments of learned counsel for the petitioner. The order impugned does not indicate adherence to law. Since this Court has found that it is very much necessary to issue notice in the application filed under Section Order 9 Rule of C.P.C., because the petitioner did not get any notice from the Court, the order of rejection passed by the Court is illegal. In such view of the matter, the delay has to be necessarily condoned and it is hereby condoned." I have also followed an earlier decision of this Court in K.Narayanaswamy v. Sundari [(1980) 1 MLJ 278] in the above decision. 7. In my considered view, the Court below should have ordered notice to the petitioners in each of the petitions. Further, before closing the final decree proceedings, the petitioners should have been put on notice. 7. In my considered view, the Court below should have ordered notice to the petitioners in each of the petitions. Further, before closing the final decree proceedings, the petitioners should have been put on notice. In view of absence of notice to the petitioners, there could be no justification on the part of the Court below to pass the impugned order rejecting the petitions. 8. I am of the view that it is not proper on the part of this Court to mould the relief prayed by the petitioners to recall the orders passed in three I.As., in a single application, as they should have filed separate applications to set aside the order passed in each of the I.As., and to restore the final decree proceedings. Hence, the petitioners are directed to file three applications to set aside the orders in I.A.Nos.156 of 2006, 152 of 2008 and 290 of 2009 and the Court below shall dispose of such applications, within three weeks from the date of numbering of such applications. The civil revision petition is disposed of with the aforesaid directions. There shall be no order as to costs. Consequently, M.P.No.1 of 2009 is closed.