Madras High Court
Revision vs V.Sobhana Kumar on 18 July, 2023
C.R.P.(MD).Nos.1794 and 1795 of 2017
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED : 18.07.2023
CORAM:
THE HONOURABLE MR.JUSTICE C.KUMARAPPAN
C.R.P.(NPD)(MD)Nos.1794 and 1795 of 2017
and
C.M.P(MD) No.9582 of 2017 in C.R.P(MD) No.1795 of 2017
C.R.P(MD) No. 1794 of 2017:
D.Vimala Shanthi
... Revision Petitioner/Petitioner/
Respondent
-vs-
V.Sobhana Kumar ... Respondent/Respondent/Petitioner
PRAYER: Civil Revision Petition is filed under Article 227 of the
Constitution of India, against the return order passed in Unnumbered
I.A.No.Nil of 2016 in I.D.O.P.No.30 of 2015, dated 22.06.2017, on the file of
the learned District Judge, Kanyakumari at Nagercoil.
For Petitioner : Mr.C.Kishore
For Respondent : Mr.K.P.Krishnadoss
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C.R.P.(MD).Nos.1794 and 1795 of 2017
C.R.P(MD) No. 1795 of 2017:
D.Vimala Shanthi
... Revision Petitioner/Petitioner/
Respondent
-vs-
V.Sobhana Kumar ... Respondent/Respondent/Petitioner
PRAYER: Civil Revision Petition is filed under Article 227 of the
Constitution of India, against the return order passed in Unnumbered
I.A.No.Nil of 2016 in I.D.O.P.No.30 of 2015, dated 22.06.2017, on the file of
the learned District Judge, Kanyakumari at Nagercoil.
For Petitioner : Mr.C.Kishore
For Respondent : Mr.K.P.Krishnadoss
COMMON ORDER
The present Civil Revision Petitions have been filed by the petitioner under Article 227 of the Constitution of India, to set aside the return order passed in Unnumbered I.A.Nos.Nil of 2016 in I.D.O.P.No.30 of 2015, dated 22.06.2017, on the file of the learned District Judge, Kanyakumari at Nagercoil.
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2. The revision petitioner is the petitioner/respondent before the trial Court. She filed this Civil Revision Petition against the unnumbered Section 5 of Limitation Act application and an unnumbered Order 9 Rule 13 of C.P.C. application.
3. For the sake of convenience, the parties will be referred to as per the litigative status before the trial Court.
4. It appears that the petitioner/husband has filed an application for the relief to dissolve the marriage solemnized on 26.08.1993. While the application was pending, the learned trial Judge has passed an order on 08.08.2016, after set the respondent/wife exparte and ultimately, granted the relief of divorce to the petitioner/husband. Against the said order, the respondent/wife has filed an application to set aside the exparte decree along with the delay condonation application. However, both the applications have not been numbered and have been returned as per the following endorsements:
“Returned on 18.01.2017:
“This Court has disposed off the cases by considering the case records and evidence on had 3/16 https://www.mhc.tn.gov.in/judis C.R.P.(MD).Nos.1794 and 1795 of 2017 pronounced considered Judgment on merits, How this petitioner is entertainable. Time one month”.
Thereafter represented on 13.02.2017 and the same was further returned on 16.02.2017:
“(1) How this petition is maintainable. (2) Any rulings in the supporting of the representation may be submitted. Time one month” and thereafter, represented on 15.03.2017 and the same was also returned on 22.06.2017:
“(1) Previous defects not rectified (2) Addl. Fly sheet to be attached. Time one month”.
Against the above return in unnumbered I.A.Nos.Nil of 2016, the instant Revision petitions have been filed.
5. The learned counsel for the petitioner/wife would submit that the very order passed by the learned trial Judge is contrary to the provisions of Order 17 Rule 2 of C.P.C, and also would submit that the revision petitioner/wife has not filed a counter statement and that she has not cross
-examined the petitioner's evidence. At this juncture, the trial Court cannot pass an order on merits. Therefore, the very return without numbering the 4/16 https://www.mhc.tn.gov.in/judis C.R.P.(MD).Nos.1794 and 1795 of 2017 Section 5 application and under Order 9 Rule 13 of C.P.C application is illegal. Hence, he prayed to allow these applications.
6. In support of his submission, the learned counsel for the petitioner has relied upon the judgment of this Court reported in 2010 (1) MWN (Civil) 612 (Muneeswari vs. Vanmathi) and Paragraph Nos.20, 21 and 22 are extracted as follows:
“20. From the above decisions, it is clear that for warranting the Application under Order 17, Rule 3 of C.P.C., it is essential that the Court could proceed only when the parties were present, meaning thereby, all the parties of the suit. Otherwise, if the parties were not present, the Court could proceed only under Order 17, Rule 2, Order 17, Rule 2 of CPC provides that on the failure of any or both of the parties to appear on the adjourned date of hearing, two alternative courses are open to the Court viz., the first one is to dismiss the Suit for default, if the plaintiff is absent of decree the Suit ex parte in case of absence of the defendant. The second course is instead of following any of the above courses contemplated by Order 9, the Court may pass such other order as it thinks fit.5/16
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21. It is relevant to point out that before amendment of Order 17, Rule 3 in 1976, this Rule did not make any distinction in the absence or presence of the party on the adjourned date of hearing and could proceed with the case forthwith if the party had defaulted in carrying out the purpose for which the adjournment had been granted to it. However, after the amendment, the position is quite distinct and Court can proceed under Order 17, Rule 3 only if the parties are present, but if the parties or any of them is absent, the Court has no option but to act under Order 17, Rule 2 of C.P.C.
22. Hence, in the present case, where the plaintiff was absent on the adjourned date hearing and no evidence of the plaintiff or substantial part thereof had been recorded, in view of the settled position of law, the Suit has to be dismissed in default by invoking the provisions of Order 17, Rule 2 and not by resorting to Order7, Rule 3 of C.P.C.
7. The learned counsel for the petitioner has also relied upon the judgment of this Court reported in 2014 (4) L.W. 193 (Vijaya and others Vs. Ranganathan and others) and Paragraph No.17 is extracted as follows:
17. Having regard to the judgments relied upon by 6/16 https://www.mhc.tn.gov.in/judis C.R.P.(MD).Nos.1794 and 1795 of 2017 the learned counsel for the appellants and the submissions made by the learned counsel on either side, I am of the considered view that it is understandable that since the fourth defendant is working in the army, he cannot avail leave as and when he wishes. Therefore, the non appearance of the fourth defendant at time of trial is understandable. Even in that event, the trial court could have set him exparte and an exparte decree could have been passed, instead of deciding the matter on merits under order 17 Rule 2 C.P.C.”
8. The learned counsel for the petitioner has further relied upon the judgment of this Court reported in 2013 (1) L.W 737 ( Arunachalam Vs. Valliyappan) and Paragraph Nos.3 and 12 are extracted as follows:
“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:
The revision petitioner being the plaintiff filed the suit in O.S.No.66 of 2007 for mandatory injunction and perpetual injunction. The written statement was filed resisting the suit. Whereupon, the issues were framed. On the side of the plaintiff, the evidence was adduced and the plaintiff's witnesses were cross-examined by the defendant. However, when the matter was posted 7/16 https://www.mhc.tn.gov.in/judis C.R.P.(MD).Nos.1794 and 1795 of 2017 for the defendant's side, no evidence was let in and for that matter, neither the Advocate for the defendant nor the party appeared. Thereafter, the lower Court proceeded to decide the matter order XVII Rule 2 of the Code of Civil Procedure. Whereupon the defendant filed the application under Section 5 of the Limitation Act to get the delay condoned in filing an application under Order IX Rule 13 of the Code of Civil Procedure. The counter affidavit was also filed resisting the application filed under Section 5 of the Limitation Act, Whereupon the lower Court condoned the delay.
12. The aforecited precedent of the Honourable Apex Court is the recent decision governing the field.
A mere running of the eye over it would clearly indicate and exemplify that if a decree is passed without recording evidence at least partly, of the absentee party, the question of treating it as the one passed under Order XVII Rule 2 of the Code of Civil Procedure, does not arise and it is deemed to be an exparte decree only and such a decree can be got set aside on petitioning the same trial Court.”
9. Per contra, the learned counsel appearing for the respondent would submit that since the learned trial Judge has passed an order on merits, the 8/16 https://www.mhc.tn.gov.in/judis C.R.P.(MD).Nos.1794 and 1795 of 2017 only remedy available to the petitioner/wife is under Section 96 of C.P.C., and not to file an application to set aside the exparte decree. Hence, he prayed to dismiss the applications.
10. This Court has given anxious consideration to the submissions of the learned counsel on either side.
11. Before embarking into the facts of the case, in order to understand the case more effectively, it is relevant extract Order XVII Rule 2 of CP.C, the same is as under:
Order XVII – ADJOURNMENTS
1.....
“2. Procedure if parties fail to appear on day fixed.- provides that where, on any day to which the hearing of the suit is adjourned, the parties or any of them fail to appear, the Court may proceed to dispose of the suit in one of the modes directed in that behalf by Order 9 C.P.C or make such other order as it thinks fit”. [Explanation.- Where the evidence or a substantial portion of the evidence of any party has already been 9/16 https://www.mhc.tn.gov.in/judis C.R.P.(MD).Nos.1794 and 1795 of 2017 recorded and such party fails to appear on any day to which the hearing of the suit is adjourned, the Court may, it its discretion, proceed with the case as if such party were present.]”
12. As per the above Section, if any of the parties fails to appear on any given day, the Court may proceed to dispose of the suit in one of the modes directed by Order IX of C.P.C.
13. However, in the explanation to Order XVII Rule 2 of C.P.C, it has been stated that if the substantial portion of the evidence of any parties has already been recorded and in that occasion, any of the parties fails to appear, then the Court can proceed as per its discretion either on merits or by way of ex parte. At this juncture, it is relevant to extract Order IX Rule 13 of C.P.C Order IX – Appearance of parties and consequence of Non-appearance:
“.........13. Setting aside decree ex parte against defendant. -- In any case in which a decree is passed ex parte against a defendant, he may apply to the Court by which the decree was passed for an order to set it aside; and if he satisfies the Court that 10/16 https://www.mhc.tn.gov.in/judis C.R.P.(MD).Nos.1794 and 1795 of 2017 the summons was not duly served,or that he was prevented by any sufficient cause from appearing when the suit was called on for hearing, the Court shall make an order setting aside the decree as against him upon such terms as to costs, payment into Court or otherwise as it thinks fit, and shall appoint a day for proceeding with the suit;
Provided that where the decree is of such a nature that it cannot be set aside as against such defendant only it may be set aside as against all or any of the other defendants also:
[Provided further that no Court shall set aside a decree passed ex parte merely on the ground that there has been an irregularity in the service of summons, if it is satisfied that the defendant had notice of the date of hearing and had sufficient time to appear and answer the plaintiff's claim] [Explanation.- Where there has been an appeal against a decree passed ex parte under this rule, and the appeal has been disposed of on any ground other than the ground that the appellant has withdrawn the appeal, no application shall lie under this rule for setting aside that ex parte decree.” 11/16 https://www.mhc.tn.gov.in/judis C.R.P.(MD).Nos.1794 and 1795 of 2017 From the conjoint reading of Order IX Rule 13 r/w Order XVII Rule 2, it is germane that, whenever the defendant was not participated in trial and absent, no decree on merits could be passed.
14. Further while perusing judgments relied by the learned counsel for the petitioner, it would emerge that for the absence of the parties and when the evidence was not recorded, the trial Court should have disposed the matter as per Order 17 Rule 2 of C.P.C., and not on merits.
15. In order to decide the issue on hand, it is relevant to extract the observation of the learned trial Judge in the order of I.D.O.P.No.30 of 2015. The learned Judge has recorded in paragraph No.7 as follows:
“7. In spite of several chances, the respondent had not filed counter. Therefore, she was set exparte. The fact that the respondent remained exparte would go to show that the respondent admits the contention of the petition and she has no valid defence to rebut the same. That is why, she had remained exparte and left it at that. That shows the respondent had no respect for the petitioner and she had by her act consented for the divorce. That is the only presumption available to this 12/16 https://www.mhc.tn.gov.in/judis C.R.P.(MD).Nos.1794 and 1795 of 2017 Court, District Court, Kanniyakumari at Nagercoil, the matrimonial Court under the Indian Divorce Act in the facts and circumstances of this case as gathered from the evidence of the petitioner and based on records under Ex.P.1 to P3. This presumption is available to the Court under Section 114 of the Indian Evidence Act, which is a strong presumption based on materials before the Court. Therefore, this Court is satisfied that the petitioner had proved his contention regarding desertion and cruelty. Therefore, the petitioner is entitled to the relief of dissolution of marriage between the petitioner and respondent dated 26.08.1993. the point for consideration -1 is answered in favour of the petitioner and against the respondent.”
16. Therefore, from the above observation, it is very much clear that only at the stage of filing of the counter statement, the respondent/wife was set ex parte. However, the trial Court proceeded with the case on merits, which is absolutely illegal, in the back drop of the above facts, law and precedent. Thus, the very submissions of the learned counsel for the respondent that only remedy available to the revision petitioner is under Section 96 of C.P.C. is contrary to Order XVII Rule 2 r/w Order IX Rule 13 of C.P.C.
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17. Therefore, this Court is of the firm view that the very return endorsement made by the Court below is liable to be interfered with. Therefore, the Court below is directed to number the Section 5 application and dispose of the case according to law. Further subject to the orders passed in the Section 5 application, the Court below is directed to number the another unnumbered application to set aside the exparte decree.
18. Considering the pendency of the issue since 2015, the trial Court is expected to dispose of the petition as expeditiously as possible.
19. In the result, both the Civil Revision Petitions stand allowed. There shall be no order as to costs. Consequently, the connected Miscellaneous Petition is closed.
18.07.2023
NCC : Yes/No
Index : Yes / No
Internet : Yes / No
ebsi
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To
1. The District Judge,
Kanyakumari,
Nagercoil.
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C.R.P.(MD).Nos.1794 and 1795 of 2017
C.KUMARAPPAN,J.
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