Research › Search › Judgment

Madras High Court · body

2014 DIGILAW 263 (MAD)

V. Lakshmi v. R. Veerabathiran

2014-02-04

P.R.SHIVAKUMAR

body2014
Judgment : 1. The defendant in O.S.No.430 of 2010 on the file of the Additional District Munsif, Poonamallee is the petitioner in the present revision. The respondent, who filed the suit as plaintiff for permanent injunction, is none other than the husband of the revision petitioner. The suit was filed by him for permanent injunction not to alienate the suit property in favour of any third party. 2. It is not in dispute that the suit property stands in the name of the revision petitioner/defendant. Along with the plaint, the respondent/plaintiff filed an application for interim injunction which was taken on file as I.A.No.525 of 2013. Though the trial Court ordered summons to be served on the revision petitioner/defendant by 23.12.2010 and the trial Court ordered notice in the injunction application returnable by 23.12.2010, it also permitted the respondent herein/plaintiff to serve notice privately. The respondent herein, on the hearing date, chose to file an affidavit of service enclosing a postal acknowledgment in proof of service of private notice in the injunction application. Accepting the same to be proof of due service of notice in the injunction application, the learned trial Judge chose to post the injunction application on 27.01.2011 for enquiry after setting the respondent therein ex-parte. Without verifying whether summons in the suit was served on the defendant, the learned trial Judge chose to set the defendant ex-parte by order dated 23.12.2010 and adjourned the matter to 27.01.2011 for ex-parte evidence. On 27.01.2011, at the request of the plaintiff, both the suit and the application were adjourned to 03.02.2011. On 03.02.2011, proof affidavit of the plaintiff was received and the documents referred to in the proof affidavit were marked as Exs.A.1 to A.5 and the learned trial Judge pronounced an ex-parte judgment granting the decree as prayed for with costs. Simultaneously, the learned trial Judge chose to pass an order in the injunction application granting injunction and allowing the said application. 3. Simultaneously, the learned trial Judge chose to pass an order in the injunction application granting injunction and allowing the said application. 3. Under the said circumstances, the defendant in the said suit, who is the present revision petitioner, chose to file an application under Order 9, Rule 13 C.P.C. to set aside the ex-parte decree dated 03.02.2011 along with an application under Section 5 of the Limitation Act to condone the delay in filing the application under Order 9, Rule 13 C.P.C. It had been contended in the supporting affidavit that no summon was served on the defendant and the application was filed in time after the petitioner got knowledge of the decree and that and even then, by way of abundant caution, the defendant was advised to file the application to condone the delay in filing the application to set aside the ex-parte decree. 4. The learned trial Judge, who heard the application filed under Section 5 of the Limitation Act which was taken on file as I.A.No.525 of 2013, chose to dismiss the same by order dated 26.08.2013 holding that the petitioner had notice of the pendency of the case in December 2010 itself and that the inordinate delay in filing the application to set aside the ex-parte decree stood unexplained. Impugning the said order, the defendant has filed the present revision on various grounds set out in the memorandum of grounds of revision. 5. The respondent has entered appearance through counsel. This Court, after admitting the Civil Revision Petition, issued notice to the trial Court for submission of the records for consideration in this Civil Revision Petition. Accordingly, the records of the original suit submitted by the trial Court are available for the consideration of this Court. 6. The arguments advanced by Mr.AR.L.Sundaresan, learned Senior Counsel arguing on behalf of the counsel on record for the petitioner and by Mr.R.Venkatavaradhan, learned counsel for the respondent are heard. The materials available on record are also perused. 7. Admittedly, the revision petitioner is the wife of the respondent herein and the suit property had been purchased in the name of the revision petitioner. The records relating to the suit property as on today stand in the name of the revision petitioner. The materials available on record are also perused. 7. Admittedly, the revision petitioner is the wife of the respondent herein and the suit property had been purchased in the name of the revision petitioner. The records relating to the suit property as on today stand in the name of the revision petitioner. Claiming that the respondent herein provided the funds for the sale consideration for the purchase made by the revision petitioner, the respondent filed the above suit for a bare injunction with the following prayer:- "A permanent injunction restraining the defendants, their Men, Agents, Servants, any other person or persons in any manner from alienating the suit schedule property mentioned in the schedule hereunder, clandestinely by hook or crook for a throw away price in favour of a third party, with a view to deprive the right, title and interest of the plaintiff". 8. With such a prayer the plaint was filed and along with the plaint, an application for interim injunction was filed. No doubt, the trial Court, while ordering summons in the suit, directed service of notice through Court and post in the injunction application and at the same time, gave permission to the plaintiff to serve notice in the injunction application privately and file proof. A permission given to the applicant/plaintiff to serve the notice privately shall not be taken as a substitute for the service of notice through Court. It shall be in addition to service of notice through Court. The fact remains that the batta paid by the plaintiff for service of summons in the suit and service of notice in the injunction application was returned pointing out certain defects. However, the plaintiff was able to produce a postal acknowledgment card evidencing service of notice in the injunction application privately. The learned trial Judge, could have, at the best, accepted the affidavit of service evidencing private service of notice for the grant of interim injunction. After granting such injunction, the trial Court could have very well noticed the fact that batta memo filed by the plaintiff for service of notice in the injunction application and for service of summons in the suit had been returned and ought to have postponed the hearing of the suit as well as the injunction application to a future date for effecting due service of notice and summons. 9. 9. As rightly contended by the learned Senior Counsel for the revision petitioner, the procedure adopted by the learned trial Judge to set the defendant ex-parte without ascertaining the service of notice and service of summons through Court is defective. If the trial Judge had passed an ad-interim order of attachment on the date on which affidavit of service was filed in the injunction application and posted the said application and the suit to a future date awaiting service of notice and summons in case batta had not been returned or directing service of notice and summons on payment of batta if batta had not been paid or representation of the batta memo in case the batta memo filed already had been returned, the trial Court order could be justified. Surprisingly, no interim order came to be passed. On the other hand, the application was directed to be called along with the suit. At the helm of the affairs, the procedure adopted by the learned trial Judge in setting the defendant ex-parte is totally erroneous. It did not ascertain whether any copy of the plaint was served on the defendant. The copy of the notice produced along with the affidavit of service does not contain details of the relief sought for in the suit. A private notice in the interlocutory application cannot be taken as due service of summons. When the first batta itself has been returned pointing out defects and no fresh summons were issued, the trial Court could not have ventured to pass an order setting the defendant ex-parte in the suit. Having done such a mistake, the learned trial Judge failed to avail the opportunity given when an application under Section 5 of the Limitation Act came to be filed to condone the delay in filing the application under Order 9, Rule 13 C.P.C. On the contrary, the learned trial Judge chose to impute knowledge of the pendency of the suit to the defendant and citing the same as the ground, the learned trial Judge dismissed the application filed under Section 5 of the Limitation Act. 10. This Court, after going through the entire records, is of the considered view that there is material irregularity and illegal exercise of jurisdiction in passing the impugned order of the trial Court. The said order deserves to be interfered with. 11. 10. This Court, after going through the entire records, is of the considered view that there is material irregularity and illegal exercise of jurisdiction in passing the impugned order of the trial Court. The said order deserves to be interfered with. 11. In the result, the Civil Revision Petition is allowed and the order dated 26.08.2013 made in I.A.No.525 of 2013 is set aside. However, there shall be no order as to costs. 12. The learned counsel for the respondent submits that the respondent is prepared to say no objection for allowing the application filed under Order 9, Rule 13 C.P.C. and that necessary direction for the early disposal of the case may be issued to the trial Court. Accordingly, the trial Court is directed to number the application filed under Order 9, Rule 13 C.P.C. and pass an order within a week, after receipt of records from this Court. In case consent is given for allowing such an application, the consent shall be acted upon and orders setting aside the ex-parte decree shall be passed without causing delay. Thereafter, the trial Court shall make an endeavor to dispose of the suit as expeditiously as possible.