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2011 DIGILAW 3374 (MAD)

Mani v. Thangaraj

2011-07-22

M.VENUGOPAL

body2011
Judgment :- 1. The Petitioner/Respondent/Defendant has filed the present Civil Revision Petition as against the order dated 2.4.2009 in I.A.No.1368 of 2008 in I.A.No.976 of 2006 in O.S.No.367 of 2006 passed by the learned District Munsif, Perambalur. 2. The Trial Court has passed orders in I.A. No.1368 of 2008 on 2.4.2009, dismissing the Petition filed by the Revision Petitioner/Defendant under Order 9 Rule 7 of C.P.C., wherein the Revision Petitioner/Defendant has sought for a relief to set aside an ex-parte Order dated 14.9.2006 in I.A. No.976 of 2006. 3. In I.A. No.976 of 2006, dated 14.9.2006, the Trial Court has passed the following order: “R1, R2 served. Respondent service held sufficient. Called absent. No representation. Set ex-parte. Petition is allowed.” 4. It is the stand of the Revision Petitioner/Petitioner/Defendant that he appeared in the main Suit in O.S. No.367/2006 on 26.9.2008. For filing the Written Statement, the matter was posted to 28.9.2008. The Respondent/Plaintiff filed I.A. No.976/2006 (praying for an injunction) against the Revision Petitioner/Defendant together with the Plaint. The I.A. No.976/2006 was called on 14.9.2006 for his appearance. Due to non-appearance the Revision Petitioner/Petitioner/Defendant, he was set ex-parte in I.A. No.976/2006. 5. It is the further plea of the Revision Petitioner/Defendant that he came to know about the aforesaid facts only when the Respondent/Plaintiff attempted to trespass into the suit property and claimed that he was armed with an injunction order, etc. Further only upon perusing the Court bundle through his Counsel the Revision Petitioner/Defendant came to know about the ex-parte injunction order. Hence the non-appearance of the Revision Petitioner/Defendant was neither willful nor wanton. 6. The Respondent/Plaintiff in his counter had mentioned that after receipt of the notice and the summons from the Court the Revision Petitioner/Defendant failed to appear before the Court on 14.9.2006 and that the LA. No.976/2006 (injunction application) was allowed. As against the ex-parte order of injunction the Revision Petitioner/Defendant in law was entitled to prefer an Appeal before the Appellate Forum. 7. Also, the Revision Petitioner/Defendant through Counsel filed vakalat on 26.9.2006 and took four months time for filing the Written Statement. Finally, he was set ex-parte on 6.2.2007. Without filing the Written Statement, the Revision Petitioner had filed the I.A. No.1368/2008 to set aside the ex-parte Order passed against him in I.A.No.976/2006 on 14.9.2006. 8. 7. Also, the Revision Petitioner/Defendant through Counsel filed vakalat on 26.9.2006 and took four months time for filing the Written Statement. Finally, he was set ex-parte on 6.2.2007. Without filing the Written Statement, the Revision Petitioner had filed the I.A. No.1368/2008 to set aside the ex-parte Order passed against him in I.A.No.976/2006 on 14.9.2006. 8. According to the learned Counsel for the Revision Petitioner/Defendant, there is no 2nd Respondent in I.A. No.976 of 2006 on the file of Trial Court in O.S. No. 367 of 2006. It appears that the main Suit O.S. No.367 of 2006 has been filed on 23.8.2006. The Suit has been slated for the first hearing on 26.9.2006. On 23.8.2006 itself, the Respondent/Plaintiff filed I.A.No.976 of 2006 praying for the relief of temporary injunction in which notice was ordered returnable by 31.8.2006. 9. According to the learned Counsel for the Revision Petitioner/Defendant, the notice in I.A.No.1368 of 2008 has not been served on the Defendant. To lend support his contention, the learned Counsel for the Revision Petitioner/Defendant refers to Page 9 of the typed set of papers wherein on 31.8.2006, it is mentioned that in I.A. No.976/2006, an endorsement has been made to the effect that ‘the Batta has been returned for want of time for service’ and the matter has been directed to be reissued and posted to 14.9.2006. 10. It is the case of the Revision Petitioner/Defendant that the Suit summons and Interlocutory Application notice have been served on the Petitioner/Defendant on the same day fixing two different dates. When the Petitioner/Defendant has admittedly received the suit summons as well as notice in Interlocutory Application though different dates have been specified in respect of the hearing of the same, it is the duty of the Petitioner/Defendant to take note of the different dates of hearing in respect of the main suit as well as the date in Interlocutory Application. But, in the instant case on hand the Petitioner/Defendant suffers from laches in this regard. 11. At this stage, this Court without going into the merits and demerits of the subject matter of the lis involved between the parties opines that the order of the Trial Court in I.A. NO. But, in the instant case on hand the Petitioner/Defendant suffers from laches in this regard. 11. At this stage, this Court without going into the merits and demerits of the subject matter of the lis involved between the parties opines that the order of the Trial Court in I.A. NO. 976 of 2006, dated 14.9.2006 is inter alia to the effect that the Respondent has been called absent and the service held sufficient and because of the no representation, he has been set ex-parte and that the Petition has been allowed, is a cryptic and non-speaking order. The said order is bereft of qualitative and quantitative details. In this connection, it is not out of place for this Court to point out that a Trial Court’s order must be a reasoned one. However, on going through the order, this Court is of the considered view that there is no outline of process of reasoning though the Revision Petitioner/Defendant has been set ex-parte on 14.9.2006. Even in a case of an ex-parte Judgment in the Suit or an ex-parte order in Interlocutory Application, it is the bounden duty of a Court of Law to pass a reasoned and speaking Judgment/order based on available materials on record. An unreasoned order may be just and fair one from the point of view of a person, who has obtained the order in this favour. However, the non-speaking order will affect the concerned person as an aggrieved person. In law any order much less a speaking order without assigning reasons by a Court of law or not even at least traversing upon the respective contentions of the parties is liable to be set aside, inasmuch as the same cannot be allowed to stand a moment’s scrutiny in the eye of law. On this simple ground alone, this Court is inclined to set aside the order in I.A.No.1368 of 2008, dated 2.4.2009, to prevent an aberration of justice and allows the present Civil Revision Petition. In the result, the Civil Revision Petition is allowed leaving the parties to bear their own costs. The order passed by the Trial Court in I.A.No.1368 of 2008 in I.A. No.976 of 2006 in O.S.No.367 of 2006, dated 2.4.2009 is set aside for the reasons assigned by this Court in this Civil Revision Petition. In the result, the Civil Revision Petition is allowed leaving the parties to bear their own costs. The order passed by the Trial Court in I.A.No.1368 of 2008 in I.A. No.976 of 2006 in O.S.No.367 of 2006, dated 2.4.2009 is set aside for the reasons assigned by this Court in this Civil Revision Petition. The I.A. No. 976 of 2006 is directed to be restored to the file of the Trial Court and after restoration of the same, it is open to the Trial Court of pass orders on merits, after providing due opportunities to both parties in the manner known to law and in accordance with law, within a period of three weeks from the date of receipt of a copy of this order. Consequently, connected Miscellaneous Petition is closed.