Research › Search › Judgment

Madras High Court · body

2012 DIGILAW 4843 (MAD)

K. Kalimuthu Servai v. M. Balamani

2012-11-28

G.RAJASURIA

body2012
Judgment :- This Civil Revision Petition has been focussed to get set aside the order dated 17.09.2009 passed in I.A.No.106 of 2006 in O.S.No.41 of 2006 by the learned District Munsif, Nilakkottai. 2. Heard both sides. 3. The epitome and the long and short of the germane facts absolutely necessary for the disposal of this Civil Revision Petition would run thus: (i) The respondent/plaintiff filed the suit in O.S.No.41 of 2006 seeking the relief of injunction so as to restrain the defendant from objecting the plaintiff in taking water pipe connection across the pathway. (ii) The written statement was filed by revision petitioner/defendant with a counter claim seeking the following relief of declaration of the defendant's exclusive right over the said pathway and for consequential injunction. (iii) For the counter claim filed by the revision petitioner/defendant, the written statement was not filed despite lapse of ninety days, whereupon a Memo was filed by the revision petitioner/defendant informing the Court about the non-filing of the written statement and the counter claim and to pass necessary orders. After giving ample opportunity to the respondent/plaintiff to raise objection if any to the Memo filed and on seeing that the respondent/plaintiff did not file any objection, ultimately, the lower Court passed the order dated 02.11.2006 which is extracted hereunder: "2.11.06: Memo Closed, Counter not filed. Hence, this petition is allowed." (iv) However, it so happened that there was change of incumbency in the Judgeship/Presiding Officer of that Court and the successor in Office passed suo motu the following order on 17.09.2009: "17.9.09: Taken uptoday. On perusal of records it is found that the Defendant filed this written statement along with counter claim and the same was numbered as IA 106/06. Defendant filed as memo on 8.9.06 informed that the plaintiff has not filed written statement in his countercliam. Since the plaintiff has not filed any objection to the said memo, this Court closed the memo on 2.11.06 and Instead of directing the plaintiff to file written statement in counter claim this court allowed the IA.106/06 as if other interim application. Hence the order passed in IA 106/06 on 2.11.06 has tobe recalled for the Interest of Justice. Accordingly recalled. The Respondent/Plaintiff directed to filed written statement in counter claim. Call on 30.9.09." (extracted as such) 4. Hence the order passed in IA 106/06 on 2.11.06 has tobe recalled for the Interest of Justice. Accordingly recalled. The Respondent/Plaintiff directed to filed written statement in counter claim. Call on 30.9.09." (extracted as such) 4. Being aggrieved by and dissatisfied with the said order, this Civil Revision Petition has been filed on various grounds. 5. In the meanwhile, taking advantage of the direction in the impugned order, the respondent/plaintiff filed the written statement to the counter claim without even filing an application for getting the delay condoned in filing such written statement to the counter claim. 6. The learned Counsel for the revision petitioner/defendant by way of hitting the right note, would pyramid his argument, the gist and kernel of it, would run thus: The successor in Office who passed the impugned order dated 17.09.2009, had no jurisdiction to recall the order passed by his predecessor and that too, without any prayer or petition from the plaintiff's side. As such, the order is fraught with illegality warranting interference by this Court so as to set aside the same. 7. Per contra, in a bid to extirpate and torpedo the arguments advanced on the side of the revision petitioner/defendant, the learned Counsel for the respondent/plaintiff would advance his arguments, a thumb nail sketch of the same, would be that the order was passed by the successor Judge because earlier order passed by his predecessor was not in accordance with law and now then, the written statement was also filed to the counter claim of the respondent/plaintiff and wherefore much water has flown under the bridge and it is too late to set the clock back. Accordingly, he would pray for the dismissal of this Civil Revision Petition. 8. The points for consideration are: (i) Whether the impugned order dated 17.09.2009 is tenable one in view of the fact that the successor Judge having recalled the order passed by his predecessor and that too, without any prayer from the plaintiff's side to get the delay condoned in filing the written statement to the counter claim? (ii) Whether the lower Court was justified in numbering the counter claim as I.A? (iii) Whether based on the counter claim without taking any evidence, the lower Court was earlier justified in simply allowing the counter claim? Point Nos.(i) to (iii) 9. (ii) Whether the lower Court was justified in numbering the counter claim as I.A? (iii) Whether based on the counter claim without taking any evidence, the lower Court was earlier justified in simply allowing the counter claim? Point Nos.(i) to (iii) 9. At the outset itself, I would like to refer to the following decisions: (i) Kailash v. Nanhku reported in 2005 (3) CTC 355. (ii) Rani Kusum v. Kanchan Devi reported in (2005) 6 Supreme Court Cases 705. (iii) Salem Advocate Bar Association v. Union of India reported in (2005) 6 Supreme Court Cases 344. (iv) R.N.Jadi & Brothers v. Subhashchandra reported in (2007) 6 Supreme Court Cases 420. (v) Zolba v. Keshao and others reported in (2008) 11 Supreme Court Cases 769. 10. Amere running of the eye over the aforesaid precedents would exemplify and demonstrate that the stipulation contained in Order VIII Rule 1 of the Code of Civil Procedure is not simply for the purpose of ignoring the same and the Courts should take it up seriously and only at the instance of the person bound to file the written statement, time has to be granted on petition being filed and that too for valid reasons. 11. But, a poring over and perusal of the records in this case would display and convey that the lower Court had scant respect for the stipulations as contained under Order VIII Rule 1 of the Code of Civil Procedure and the precedents of the Honourable Apex Court were not at all taken into consideration. It is the duty of every trial Judge to see that the written statement is filed within the time contemplated under law and he cannot expect the plaintiff to bring the laches of the defendant to the notice of this Court about the non-adherence to the time limit under Order VIII Rule 1 of the Code of Civil Procedure. 12. Mutatis mutandis the time limit prescribed for filing the written statement under Order VIII Rule 1 of the Code of Civil Procedure would also be applicable to the written statement to be filed to the counter claim. But, in this case, the lower Court virtually slept over the wheel and allowed grass to grow under its feet and no steps had been taken to pass order at the appropriate time suo motu au fait with law and au curante with the factual scenario. 13. But, in this case, the lower Court virtually slept over the wheel and allowed grass to grow under its feet and no steps had been taken to pass order at the appropriate time suo motu au fait with law and au curante with the factual scenario. 13. It is absolutely not necessary for me, to the risk of repetition and pleonasm, once again to dilate on the procedures to be followed under Order VIII Rule 1 of the Code of Civil Procedure. The Honourable Apex Court in the precedents cited supra, elaborately, blow by blow, detailed and delineated, expressed and expatiated the procedures to be adhered to under Order VIII Rule 1 of the Code of Civil Procedure. As such, the Courts below are mandated to follow the procedures strictly and there should not be any violation to the detriment of the public interest in the dispensation of justice. 14. In this case, despite the factum of the written statement not having been filed to the counter claim of the revision petitioner/defendant, the lower Court gave enormous time to the respondent plaintiff to file objection. Nevertheless, the objection was not filed. Thereafter, the lower Court simply allowed the counter claim which was numbered as I.A., without even taking evidence thereon. 15. As such, the lower Court thought fit to put an end to the right of the respondent/plaintiff to file the written statement to the counter claim. However, holus-bolus and like a bolt from the blue, the successor Judge suo motu as though he is a much more well informed person than his predecessor, recalled the earlier order passed by his predecessor. If at all, the respondent/plaintiff had any grievance, he should have petitioned the Court for getting the delay condoned in filing the written statement to the counter claim. When he himself had not done so, the successor Judge was not justified in passing such order and in my considered opinion, such order is passed in bad taste and it is condemnable. 16. I recollect the following excerpt from the precedent of the Honourable Apex Court in Bharatiya Seva Samaj Trust v. Yogeshbhai Ambalal Patel reported in (2012) 9 Supreme Court Cases 310: "14. It is a settled legal proposition that the court should not set aside the order which appears to be illegal, if its effect is to revive another illegal order. I recollect the following excerpt from the precedent of the Honourable Apex Court in Bharatiya Seva Samaj Trust v. Yogeshbhai Ambalal Patel reported in (2012) 9 Supreme Court Cases 310: "14. It is a settled legal proposition that the court should not set aside the order which appears to be illegal, if its effect is to revive another illegal order. It is for the reason that in such an eventuality the illegality would perpetuate and it would put a premium to the undeserving party/person. (Vide Gadde Venkateswara Rao v. Govt., of A.P. [ AIR 1966 SC 828 ]; Maharaja Chintamani Saran Nath Shahdeo v. State of Bihar [ (1999) 8 SCC 16 : AIR 1999 SC 3609 ]; Mallikarjuna Mudhagal Nagappa v. State of Karnataka [ (2000) 7 SCC 238 : AIR 2000 SC 2976 ]; Chandra Singh v. State of Rajasthan [ (2003) 6 SCC 545 :2003 SCC (L&S) 951: AIR 2003 SC 2889 ] and State of Uttaranchal v. Ajit Singh Bhola [ (2004) 6 SCC 800 .]." Wherefore, it is clear that the successor Judge by his recalling order, approved and encouraged the illegality of the plaintiff. 17. Taking undue advantage of the order passed by the successor Judge, the respondent/plaintiff had a cake walk in filing the written statement to the counter claim ignoring the stipulations as contained in Order VIII Rule 1 of the Code of Civil Procedure. 18. In this case, the respondent/plaintiff without adhering to the procedures simply taking undue advantage of the situation and circumstances, ignored the stipulations as contained under Order VIII Rule 1 of the Code of Civil Procedure. It is, therefore, clear that the fault is on the part of the respondent/plaintiff as well as on the part of the Presiding Officers of the Court who dealt with the matter and I cannot find fault with the revision petitioner/defendant in this factual matrix. 19. Now, much water has flown under the bridge. I also recall the legal maxim "Quod fieri non debet, factum valet." [What ought not to be done, when done, is valid.]. In all cases, such maxim cannot be bulldozed in and applied. The lower Court was also not justified in simply allowing the counter claim without entertaining evidence. 20. Here, I would like to refer to the decision of the Honourable Apex Court in C.N.Ramappa Gowda v. C.C.Chandregowda reported in (2012) 5 Supreme Court Cases 265. In all cases, such maxim cannot be bulldozed in and applied. The lower Court was also not justified in simply allowing the counter claim without entertaining evidence. 20. Here, I would like to refer to the decision of the Honourable Apex Court in C.N.Ramappa Gowda v. C.C.Chandregowda reported in (2012) 5 Supreme Court Cases 265. Certain excerpts from it, would run thus: "25. We find sufficient assistance from the apt observations of this Court extracted hereinabove which has held that the effect of non-filing of the written statement and proceeding to try the suit is clearly to expedite the disposal of the suit and is not penal in nature wherein the defendant has to be penalised for non-filing of the written statement by trying the suit in a mechanical manner by passing a decree. We wish to reiterate that in a case where written statement has not been filed, the court should be a little more cautious in proceeding under Order 8 Rule 10 CPC and before passing a judgment, it must ensure that even if the facts set out in the plaint are treated to have been admitted, a judgment and decree could not possibly be passed without requiring him to prove the facts pleaded in the plaint. * * * * * * * * * * 29. It is a well-acknowledged legal dictum that assertion is no proof and hence, the burden lay on the plaintiff to prove that the property had not been partitioned in the past even if there was no written statement to the contrary or any evidence of rebuttal. The trial Court in our view clearly adopted an erroneous approach by inferring that merely because there was no evidence of denial or rebuttal, the plaintiff's case could be held to have been proved. The trial court, therefore, while accepting the plea of the appellant-plaintiff ought to have recorded reasons even if it were based on ex parte evidence that the plaintiff had succeeded in proving the jointness of the suit property on the basis of which a decree of partition could be passed in his favour." 21. When the respondent/plaintiff himself was keeping quiet, the successor Judge was not justified in simply recalling the earlier order suo motu by passing the impugned order. When the respondent/plaintiff himself was keeping quiet, the successor Judge was not justified in simply recalling the earlier order suo motu by passing the impugned order. As such, in this murky and cloudy situation, I would like to fumigate my mind with the following legal maxims: (i) "Judicis est judicare secundum allegata et probata." [It is the proper role of a judge to decide according to the allegations and proofs.] (ii) "Justitia non est neganda, non differenda." [Justice is not to be denied or delayed.] (iii) "Justitia nemini neganda est." [Justice is to be denied to no one.] 22. I would like to pass the following order, so that justice would not get deferred. Accordingly, Point Nos.(i) to (iii) are answered. 23. Having the aforesaid legal maxims in mind, I would like to resolve the impasse by making the following directions: The respondent/plaintiff shall pay a cost of Rs.1,000/-(Rupees One Thousand only) to the revision petitioner/defendant within a period of one week from this date. Whereupon, the lower Court shall have on its file, the plaint, the counter claim and the written statement filed to the counter claim and if the revision petitioner/defendant so desires, he might be permitted to file reply to the written statement filed to the counter claim. Whereupon, the issues shall be framed properly, if not already framed and the lower Court shall do well to see that the trial is completed within a period of three months from the date of receipt of a copy of this order and judgment delivered on merits. 24. In the course of the arguments, the learned Counsel for the revision petitioner/defendant would echo the cri de coeur of his client to the effect that when this Civil Revision Petition is pending, the respondent/plaintiff did choose to raise construction in the suit property and it was resisted by the revision petitioner/defendant and whereupon a police complaint was lodged by him. 25. Whereas the learned Counsel for the respondent/plaintiff gainsaying and contradicting such allegation would submit to the effect that his client is so poor and not having financial wherewithal to raise any construction or cause any obstruction in the property described in the plaint or in the counter claim. 26. The submission of the learned Counsel for the respondent/plaintiff is recorded and both the parties are hereby mandated to strictly adhere to the status quo as on date. 27. 26. The submission of the learned Counsel for the respondent/plaintiff is recorded and both the parties are hereby mandated to strictly adhere to the status quo as on date. 27. On balance, this Civil Revision Petition is disposed of. Consequently, the connected Miscellaneous Petition is closed. No costs. Notes:(i) Issue Order Copy on 30.11.2012 (ii) Both sides in unison would submit that the cost ordered by this Court was paid and received.