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2012 DIGILAW 3221 (MAD)

Ponnayammal v. S. Subramaniam

2012-07-23

G.RAJASURIA

body2012
Judgment :- 1. This civil revision petition is focussed as against the order dated 05.08.2010 passed by the learned Subordinate Judge, Perundurai in I.A.No.450 of 2009 in O.S.No.745 of 1994 (Renumbered as O.S.No.523 of 2009). 2. Heard both sides. 3. A summation and summarisation of the relevant facts, absolutely necessary for the disposal of this petition would run thus: a) The respondent herein filed the suit seeking the following reliefs: To pass a - (a) preliminary decree directing the division of the suit property into 2 equal shares and to allot the western portion of the suit property to the plaintiff under equity and put the plaintiff in separate possession; (b) in the event of failure of the defendants to comply with the preliminary decree to appoint a commissioner to effect partition; (c) a decree of permanent injunction restraining defendants their henchmen not to interfere with the peaceful possession and enjoyment of western portion of the suit property under the enjoyment of the plaintiff till partition is completed; (d) directing the defendants to pay the costs of the suit. (extracted as such) Originally the deceased Marappa Gounder and deceased Chinnappa Gounder happened to be the defendants. During their life time, preliminary decree was passed exparte as under: Preliminary decree "1. It is ordered that the suit property be and same is hereby divided into 2 equal shares and to allot the western portion of the suit property to the plaintiff. 2. It is ordered that the commissioner is appointed for division of the suit property. 3. It is ordered that the defendants is restraining by means of permanent injunction and enjoyment of western portion of the suit property under the enjoyment of the plaintiff till partition is completed; 4. That the defendant/s do pay to the plaintiff a sum of Rs.785/-being the costs of the suit." (extracted as such) Subsequently, Marappa Gounder died and Chinnappa Gounder also died. The plaintiff filed the application seeking a final decree. In that the legal heirs of Marappa Gounder and Chinnappa Gounder were added. On receipt of the notice in the final decree proceedings, the legal heirs of Marappa Gounder instructed their advocate to get the exparte preliminary decree set aside; whereupon there was a delay to the tune of more than 9 years and odd. After hearing both sides, the lower court dismissed the said application. On receipt of the notice in the final decree proceedings, the legal heirs of Marappa Gounder instructed their advocate to get the exparte preliminary decree set aside; whereupon there was a delay to the tune of more than 9 years and odd. After hearing both sides, the lower court dismissed the said application. b) Being aggrieved by and dissatisfied with the same, this revision has been focussed on various grounds. 4. The learned counsel for the revision petitioners would echo the cri de coeur of his client to the effect that the preliminary decree itself is ex facie and prima facie non-est in the eye of law and this court by way of its inherent jurisdiction can set aside the same. However for the purpose of formally complying with the procedures the petitioners filed the necessary application to get set aside the exparte preliminary decree before the lower court. Without properly appreciating the same, the court below simply dismissed the said application, warranting interference in this revision. 5. Whereas the learned counsel for the respondent would try to extirpate and torpedo the arguments and pleas of the learned counsel for the revision petitioner by pointing out that the said Marappa Gounder during his life time itself was in receipt of suit summons and when such is the position even by phantasmagorical thoughts it cannot be labelled or dubbed as though the preliminary decree was passed without summons or notice. The legal heirs can only step into the shoes of the deceased and that they cannot try to disown the omissions and commissions of their predecessor-in-title. The predecessor-in-title, viz., Marappa Gounder despite receipt of summons did not participate in the case and in such a case, the legal heirs of Marappa Gounder cannot try to project as though they had no knowledge about the proceedings. 6. The points for consideration are as under: 1. Whether the delay is only 75 days or actually 9 years and odd in getting the delay condoned in filing the application under Order IX Rule 13 of CPC? 2. Whether ex facie and prima facie, the exparte preliminary decree is tenable in the eye of law? 7. 6. The points for consideration are as under: 1. Whether the delay is only 75 days or actually 9 years and odd in getting the delay condoned in filing the application under Order IX Rule 13 of CPC? 2. Whether ex facie and prima facie, the exparte preliminary decree is tenable in the eye of law? 7. The whole kit and caboodle of facts and figures as put forth on both sides would display and demonstrate that the parties are not disputing in regard to the shares are concerned, to which they are entitled to; but the only grievance of the revision petitioners, being the legal heirs of the deceased Marappa Gounder, is to the effect that the western portion of the suit property has been allotted to the respondent/plaintiff as prayed for, which is something anathema to justice and fair play and the preliminary decree should not contain such direction and only in the final decree proceedings after considering the pro et contra, the court should pass final decree allotting the specific portions, to which the parties are entitled to. As such, if that much portion of the preliminary decree allotting western portion to the plaintiff is deleted, the revision petitioners would be satisfied for which, the learned counsel for the respondent also would submit that regarding allotment of the portions are concerned the matter might be relegated to the court dealing with the final decree application and equity can be worked out there. 8. Hence, in this view of the aforesaid submissions, I am of the view that unnecessarily the parties need not be driven to the extent of facing once again de novo trial. 9. Accordingly, in para No.1 of the operative portion of the preliminary decree the following words " to allot western portion of the suit property" shall stand deleted and it shall be replaced by the following "two equal shares and to allot one such share to the plaintiff". 10. In view of the fact that the delay occasioned because of the revision petitioners, a cost of Rs.5,000/- (Rupees five thousand only) is ordered to be paid by the revision petitioners to the respondent within 15 days from this date. 11. 10. In view of the fact that the delay occasioned because of the revision petitioners, a cost of Rs.5,000/- (Rupees five thousand only) is ordered to be paid by the revision petitioners to the respondent within 15 days from this date. 11. By way of disambiguating the ambiguity if any in the order stated above, the parties are at liberty to argue before the court concerned seized of the final decree petition as to which portions they are to be allotted and get suitable orders in the final decree. The lower court shall do well to see that within the period of three months from the date of receipt of this order, the final decree application shall be disposed of. 12. With the above direction, this civil revision petition is disposed of. No costs. Consequently, the connected miscellaneous petition is closed.