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2020 DIGILAW 1495 (MAD)

Ramachandran v. Balakrishnan

2020-09-14

R.SUBRAMANIAN

body2020
ORDER : R. Subramanian, J. This matter is taken up for hearing through Video-Conferencing. 1. The defendants 2, 5 and 6 in OS No. 2 of 2008 are the petitioners. The suit was laid by the first respondent/plaintiff, seeking partition and separate possession of his 1/5th share in the suit properties. 2. Certain alienations and certain gratuitous transfers made by the first defendant were also impugned in the suit. It appears from the records that the suit was decreed ex parte on 17.07.2009, an application for final decree was filed in IA No. 196 of 2012. The petitioners herein filed the instant Application in IA No. 39 of 2013 seeking condonation of delay of 1216 days in seeking to set aside the ex parte decree. 3. The reasons set out for the delay is that the parties are governed by the Customary Hindu Law, as in vogue in Pondicherry and therefore, a suit for partition itself is not maintainable. It was also contended that the second defendant, who is the deponent and father of the minor defendants 2 and 3, though, had engaged a counsel, the said counsel did not inform him of the proceedings in the suit. Only after receipt of the notice in the final decree proceedings he came to know about the ex parte decree that was passed in the suit on 17.07.2009. Therefore, according to him, there was no negligence on his part in prosecuting the proceedings and it is the communication gap between him and his counsel that has resulted in these delay. 4. This application was resisted by the plaintiff contending that there is no explanation, as to why, the deponent did not meet his counsel to file a written statement or to give him further instructions. In the absence of any explanation for not meeting the counsel between 16.04.2008 to 17.07.2009, it cannot be said that the delay has been properly or sufficiently explained. It is also stated that the petitioners had engaged one Mr. Ganapathi as their counsel in the final decree proceedings and they have been taking time for filing counter. The petition should have been filed at least within 30 days from the date of receipt of the notice in the final decree proceedings. The petition which is actually filed on 15.12.2012 is hopelessly barred by limitation and there is no sufficient reason assigned for condonation of delay. 5. The petition should have been filed at least within 30 days from the date of receipt of the notice in the final decree proceedings. The petition which is actually filed on 15.12.2012 is hopelessly barred by limitation and there is no sufficient reason assigned for condonation of delay. 5. The Trial Court upon a consideration of the reasons assigned in the affidavit filed in support of the application held that though the petitioners were served in the final decree proceedings on 12.04.2012 they have chosen to file an application to set aside the ex parte preliminary decree only on 15.12.2012. Therefore, the reasons assigned cannot be treated as sufficient cause under Section 5 of the Limitation Act. The learned Trial Judge also pointed out that the petitioners having entered appearance in the suit on 11.03.2008, have not filed a written statement till 17.07.2009. Therefore, the learned Trial Judge concluded that the petitioners have not explained the delay properly and dismissed the application. Though the learned Trial Judge had decided the Section 5 Application, in the opening paragraph of the order, it is stated that the application has been filed under Order 9 Rule 13 meaning thereby an application to set aside an ex parte decree. 6. In view of such statement having been made in the order of the Trial Court, the petitioners herein had filed a Civil Miscellaneous Appeal in CMA No. 23 of 2016 on the file of the Principal District Judge, Villupuram, under Order 43 Rule 1(d) of the Code of Civil Procedure. It is not seen from the judgment of the learned Principal District Judge made in CMA No. 23 of 2016 that any objection was raised regarding the maintainability of the appeal. The learned Principal District Judge went on to decide the Appeal on merits. Concurring with the findings of the learned Trial Judge, the learned Principal District Judge dismissed the Appeal, hence the Revision. 7. I have heard Mr. K.S. Vaithianathan, learned counsel appearing for M/s. K. Chandrasekaran, for the petitioners and Mr. V. Lakshminarayanan, learned counsel appearing for Mr. V. Raghavachari, for the first respondent/plaintiff. 8. Mr. K.S. Vaithianathan, learned counsel appearing for the petitioners would vehemently contend that the petitioners are assigned a reasonable cause for their non-appearance on 17.07.2009 viz. the date on which the ex parte decree was passed and also for the delay. V. Lakshminarayanan, learned counsel appearing for Mr. V. Raghavachari, for the first respondent/plaintiff. 8. Mr. K.S. Vaithianathan, learned counsel appearing for the petitioners would vehemently contend that the petitioners are assigned a reasonable cause for their non-appearance on 17.07.2009 viz. the date on which the ex parte decree was passed and also for the delay. Therefore, according to him, the Courts below were not right in dismissing the application for condonation of delay. 9. Contending contra, Mr. V. Lakshminarayanan, learned counsel appearing for the first respondent/plaintiff, would submit that there is no explanation whatsoever for the delay, he would also submit that the reasons given are usual, run of the mill, reasons blaming the counsel, who appeared at that stage. The very fact that the petitioners have not chosen to instruct their counsel between 11.03.2008 and 17.07.2009 viz., the date on which they entered appearance and the ex parte decree respectively would show that there were negligent in prosecuting the suit. He would also point out that though the petitioners were served with notice in the final decree proceedings on 12.04.2012, they have chosen to file the application for setting aside the ex parte decree along with application for condonation of delay only on 15.12.2012. He would also point out that there is no explanation for the delay between 12.04.2012 and 15.12.2012. 10. Apart from the above contentions on merits, Mr. K.S. Vaithianathan, learned counsel appearing for the petitioners, would draw my attention to the judgment in the suit dated 17.07.2009 and contend that the said judgment is not a judgment within the meaning of Order 41 Rule 31 of the Code of Civil Procedure. He would also invite my attention to the judgment of the Division Bench of this Court in M/s. Meenakshisundaram Textiles v. M/s. Valliammal Textiles Ltd., reported in 2011 (3) LW 80 , to contend that the judgment itself is defective, inasmuch as, not even the plaintiff's evidence has been recorded. Therefore, according to him, the ex parte judgment and decree will have to be set aside. In response to the said submission Mr. V. Lakshminarayanan, learned counsel appearing for the first respondent/plaintiff, would contend that unless the delay is condoned, it is not open to the petitioners to raise the issue regarding the validity or otherwise in the judgment in question. 11. I have considered the rival submissions. 12. In response to the said submission Mr. V. Lakshminarayanan, learned counsel appearing for the first respondent/plaintiff, would contend that unless the delay is condoned, it is not open to the petitioners to raise the issue regarding the validity or otherwise in the judgment in question. 11. I have considered the rival submissions. 12. There seems to be a total flaw in the procedure adopted by the Courts below. Unfortunately, the learned Trial Judge viz., The IInd Additional Sub Judge, Villupuram, disposed of an application under Section 5 of the Limitation Act, as if it is an Application under Order 9 Rule 13 of the Code of Civil Procedure. Knowingly or unknowingly, the petitioners also preferred an Appeal against the said order before the District Court instead of a Revision, before this Court. Even before the Appellate Court, the question regarding maintainability of the Appeal was not raised. The Appeal was argued and the learned Principal District Judge also disposed of the Appeal, as if it is one against an order made in an Application under Order 9 Rule 13, though the learned Principal District Judge had considered the reasons for the delay in the course of the order. The manner in which the proceedings have been conducted shows that neither the lawyers nor the Presiding Officers have bestowed any attention to the scope of the proceedings before them. 13. It is fundamental principal of law that an order passed in a Section 5 Application is not an appealable order but a revisable order. Therefore, the very appeal before the learned Principal District Judge was not maintainable. Unfortunately, both the learned Principal District Judge and the counsel for the respondents overlooked the fact that what was decided by the Trial Court was an application under Section 5 of the Limitation Act, though it has been stated that it is an application under Order 9 Rule 13 of the Code of Civil Procedure in the fair order of the Trial Court. If I am to reject this revision on the ground that the Appeal before the Appellate Court itself was not maintainable, it will cause severe prejudice to the petitioners as the mistake was that of the Court and not the petitioners. If I am to reject this revision on the ground that the Appeal before the Appellate Court itself was not maintainable, it will cause severe prejudice to the petitioners as the mistake was that of the Court and not the petitioners. Since this Revision has been filed under Article 227 of the Constitution of India, I treat this revision as one filed against the order of the Trial Court made in IA No. 39 of 2013 and proceed to dispose it on merits. 14. Of course the reasons for the delay are not very satisfactory, the petitioners, in my considered opinion, have not made out a sufficient cause for condonation of delay. As rightly pointed out by Mr. V. Lakshminarayanan, learned counsel appearing for the first respondent/plaintiff, the delay between 12.04.2012 and 15.12.2012 has not at all been explained. Similarly the conduct of the petitioners is not choosing to instruct their counsels between 16.04.2008 to 17.07.2009, viz. the date on which they entered appearance in the suit and the date of the ex parte decree also leaves no room for doubt that the petitioners have been negligent in defending the suit. 15. However, the second point of Mr. K.S. Vaithianathan, learned counsel appearing for the petitioners, regarding the manner in which the suit came to be disposed of deserves consideration. The ex parte judgment that has been rendered in the suit has been produced and it reads as follows: xxxxxxxxxxxxx A perusal of the above judgment shows that it is an example of how a judgment should not be written. I could see total non application of mind on the part of the learned Subordinate Judge. All requirements of law have been thrown to the winds. 16. A Division Bench of this Court in M/s. Meenakshisundaram Textiles v. M/s. Valliammal Textiles Ltd., reported in 2011 (3) LW 80 , has pointed out that even an ex parte judgment must contain bare minimum facts, the point for determination, the evidence adduced and the application of those facts and evidence for deciding the issue. A judgment which does not contain the above would not qualify to be called a judgment. While considering the scope of the definition of the judgment under Section 2(9) of the Code of Civil Procedure read with Order 20 Rule 6(a), the Division Bench has held as follows: "10. A judgment which does not contain the above would not qualify to be called a judgment. While considering the scope of the definition of the judgment under Section 2(9) of the Code of Civil Procedure read with Order 20 Rule 6(a), the Division Bench has held as follows: "10. Judgment not containing the bare minimum facts, the point for determination, the evidence adduced and the application of those facts and evidence for deciding the issue would not qualify it to call as "judgment". 11. When the defendant is set ex parte , the burden is heavy on the Court, as it would not have the advantage of defence. Therefore, the Court should be extra careful in such cases and they should consider the pleadings and evidence and should arrive at a finding as to whether the plaintiff has made out a case for a decree. 12. The "judgment" should contain the brief summary of the facts, the evidence produced by the plaintiff in support of his claim and the reasoning of the learned Judge either for decreeing the suit or its dismissal. The Civil Procedure Code does not say that the Court is bound to grant a decree in case the defendant is absent. The practice of writing a judgment indicating that the defendant was ex parte and as such the claim was proved and the suit was decreed, deserves to be Condemned." (Emphasis Supplied) 17. The appeal before the Division Bench was one against an order refusing to set aside an ex parte decree filed under Order 43 Rule 1 (d) of the Code of Civil Procedure. The Division Bench went on to set aside the judgment and decree solely on the ground that it is not in conformity with the provisions of the Code of Civil Procedure. The Division Bench had also concluded that such judgments and decrees which show total non-application of mind on the part of the Trial Court will have to be set aside. 18. I therefore, have no hesitation to invoke the powers under Article 227 of the Constitution of India, to set aside the judgment and decree dated 17.07.2009 made in the suit viz., OS No. 2 of 2008 on the file of the IInd Additional Sub Court, Villupuram. The Civil Revision Petition is therefore allowed. Consequently, the connected miscellaneous petition is closed. 19. The Civil Revision Petition is therefore allowed. Consequently, the connected miscellaneous petition is closed. 19. The petitioners shall, however, compensate the first respondent/plaintiff for the delay that had occurred, as they have also contributed to the delay, apart from the Courts below and the counsels on record for the parties. The petitioners are therefore directed to pay a cost of Rs. 25,000/- to the first respondent/plaintiff on or before 12.10.2020. Costs shall be paid to the counsel appearing for the first respondent/plaintiff in this court. 20. The suit will stand restored, the petitioners herein viz., defendants 2, 5 and 6 shall file their written statement within a period of 30 days from 12.10.2020. Upon such filing of the written statement, the learned Trial Judge is directed to frame appropriate issues and proceed to dispose of the suit in accordance with law. The learned IInd Additional Subordinate Judge, Villupuram is directed to give priority to the suit, since the suit itself is of the year 2008.