Madras High Court
Valleeswari vs Kamalakannan on 21 January, 2010
Equivalent citations: AIR 2010 (NOC) 765 (MAD.), 2010 AIHC (NOC) 909 (MAD.)
IN THE HIGH COURT OF JUDICATURE AT MADRAS
Dated : 21.01.2010
Coram
The Honourable Mr. Justice M.JEYAPAUL
C.R.P.(PD) No.3288 of 2009 and M.P.No.1 of 2009
Valleeswari ... Petitioner
Vs.
1. Kamalakannan
2. Kalavathy ... Respondents
This Civil Revision Petition has been filed under Article 227 of the Constitution of India against the order dated 11.08.2009 passed by the Subordinate Court, Madurantakam in I.A.No.225 of 2005 in O.S.No.42 of 2004.
For Petitioner : Mr.A.Prabhakaran for
Mr.J.Pothiraj
For Respondent-1 : Mr.K.Bhaskar
For Respondent-2 : Mr.P.Murthy
*****
O R D E R
The first defendant aggrieved by the permission granted to the second defendant to participate in the trial proceedings under Order 9 Rule 7 of C.P.C. prefers the present Civil Revision petition. Quite interestingly, the plaintiff in fact supports the case of the second defendant whose plea for participation in the trial proceeding was accepted by the trial court.
2. In a suit for Specific performance laid by the second respondent herein, the petitioner herein and the first respondent were arrayed as parties. The second defendant who is the first respondent herein remains ex-parte on 28.12.2005. The fact remains that an ex-parte decree passed as against the second defendant. Yet another defendant is contesting the suit filed by the plaintiff. Of course, after a lapse of about four and half years, the second defendant woke up and filed a petition invoking the provision under Order 9 Rule 7 C.P.C. praying to set aside the ex-parte order passed as against him on the sole ground that on account of his age, he could not make his appearance before the trial court. The first defendant who is the revision petitioner herein very strenuously contested the said application on the ground that no good reason as contemplated under Order 9 Rule 7 C.P.C. assigned by the second defendant. Secondly, it was contended that the delay of about four and half years occasioned in filing the petition was not properly explained. Thirdly, it was contended that the second defendant was not at all a necessary party to the suit.
3. The trial court having adverted to the reason assigned by the second defendant chose to allow the petition filed under Order 9 Rule 7 of C.P.C.
4. The learned counsel appearing for the petitioner/ first defendant would submit that the first respondent/second defendant was only 50 years old at the time when the petition was filed seeking to set aside the ex-parte order. Referring to Order 9 Rule 7 C.P.C., the learned counsel appearing for the first defendant would vehemently submit that unless good reason is assigned, the Court cannot entertain a petition filed under order 9 Rule 7 C.P.C. His further submission is that no convincing reason is assigned for the delay of about four and half years in filing the petition to set aside the ex-parte order passed as against the second defendant. Therefore, he would submit that the second defendant has come forward with the present petition only to drag on the proceedings sailing completely with the plaintiff. Therefore, the revision petition may be allowed.
5. The learned counsel appearing for the first respondent/ second defendant would contend that the affidavit filed by the second defendant would disclose that he was 60 years old at the time when the petition was filed by him. It is his contention that in fact the second defendant was 70 years old, but he had by oversight stated his age as 60 years in the affidavit. Even assuming for the sake of arguments that the reason assigned by the second defendant was not good enough to entertain the petition under Order 9 Rule 7 C.P.C., still the Court in the interest of justice can permit the second defendant to participate in the trial proceedings when the trial is pending adjudication. There is no limitation to file a petition under Order 9 Rule 7 C.P.C. It is his last submission that the question whether the second defendant is a necessary party to the suit filed by the plaintiff for Specific performance will have to be determined by the trial court and not by the revisional Court. Therefore, he would submit that the trial court has rightly allowed the petition filed by the second defendant.
6. Very strangely, the plaintiff also supports the case of the second defendant. The learned counsel appearing for the second respondent/ plaintiff would submit that even if the reason assigned by the second defendant to set aside the ex-parte order passed as against him is not convincing, the second defendant cannot be shown the doors as the trial proceedings in fact are pending before the trial court. The question of limitation is alien to Order 9 Rule 7 C.P.C., it is contended.
7. True it is that the second defendant has come out with a very vague reason in the petition filed under Order 9 Rule 7 C.P.C. that on account of his advancing age, he could not appear and defend the suit. But, at any rate, there is no proof for the submission made by the learned counsel appearing for the revision petitioner that the age of the second defendant was only 50 years at the time when the petition was filed. The Court will have to go by the affidavit sworn to by the second defendant to the effect that he was 60 years old at the time when the petition was filed. At any rate, the age of the petitioner cannot be a reason for non defending the suit laid by the plaintiff. No convincing reason has been assigned to the effect that his age crippled him from making appearance before the court in order to defend the suit laid by the plaintiff as rightly contended by the revision petitioner.
8. The question that surfaces for consideration is whether an Order 9 Rule 7 C.P.C. should be construed liberally in order to permit a party who remains ex-parte during pendency of the suit to participate in the trial proceedings. The second question which arises for determination is whether there is any limitation for filing a petition under Order 9 Rule 7 C.P.C.
9. Order 9 Rule 7 C.P.C. would read that when the defendant appears and assigns good cause for his previous non appearance when the case has been posted for further hearing, his answer should be heard and he should be permitted to participate in the trial proceedings.
10. The learned counsel appearing for the second defendant rightly makes out a difference in the rigors of Order 9 Rule 13 C.P.C. and the liberal constriction which is warranted under Order 9 Rule 7 C.P.C. It is a case where the proceedings are still pending adjudication. But after the termination of the lis, the plaintiff or the defendant invokes the provision under Order 9 Rule 7 or Order 9 Rule 13 C.P.C. as the case may be-When the suit is terminated and the party concerned knocks at the doors of this Court to set aside the decree passed or to restore the suit which was dismissed for default, a rigorous test would be applied to weigh the veracity of the reason given for the non appearance of the party concerned. Considering the fact that the suit is pending adjudication and no prejudice will be caused to the other side, the petition filed under Order 9 Rule 7 C.P.C. is liberally construed.
11. The Honourable Supreme Court in Sangram Singh Vs Election Tribunal, Kotah and another reported in A.I.R. 1955 S.C. 425 has categorically held as follows:
"28. Then comes R.7 which provides that if at an adjourned hearing' the defendant appears and shows good cause for his "previous non-appearance", he can be heard in answer to the suit.
"as if he had appeared on the day fixed for his appearance."
This cannot be read to mean, as it has been by some learned Judges, that he cannot be allowed to appear at all if he does not show good cause. All it means is that he cannot be relegated to the position he would have occupied if he had appeared."
Participation by the defendant in the trial proceedings cannot be denied even if he does not show any good cause, it has been held by the Honourable Supreme Court in the aforesaid case.
12. This Court in N.Ramanathan and another Vs Meenakshi- sundaram reported in 2001(4) C.T.C. 8 has held that even if the defendant is not in a position to substantiate the reason assigned for his non appearance, his right to participate in the pending trial proceedings cannot be denied. Though the second defendant has come out with some weak reasons for not attending the hearings before the trial court, the Court finds that it would be unjust in the light of the aforesaid ratios to deny his right to participate in the trial proceedings which is pending adjudication.
13. It is true that there has been a delay of about four and half years in filing the petition by the second defendant under Order 9 Rule 7 C.P.C. This Court in Palani Nathan Vs Devannai Ammal reported in 1987(II) M.L.J. 259 has held that for filing an application under Order 9, Rule 7, C.P.C. no limitation is prescribed and it is open to the Court to condone the absence of the defendant and set aside the ex-parte order passed as against him and permit him to take part in the proceedings at any stage of the proceedings.
14. As regard the stage of the proceedings at which the petition under Order 9 Rule 7 C.P.C. could be filed, the Honourable Supreme Court in Bhanu Kumar Jain Vs Archana Kumar and another reported in 2005(1) C.T.C. 368 was pleased to hold as follows:
"16. Order 9, Rule 7 of the Code postulates an application for allowing a defendant to be heard in answer to the suit when an order posting a suit for ex parte hearing was passed only in the event, the suit had not been heard as in a case where hearing of the suit was complete and the Court had adjourned a suit for pronouncing the judgment, an application under Order 9, Rule 7 would not be maintainable."
Only at the stage when the matter has been posted for judgment after completing the trial proceedings, an application under Order 9 Rule 7 C.P.C. cannot be maintained, it has been ruled by the Honourable Supreme Court.
15. With regard to the plea that the second defendant is not a necessary party to the suit, the Court finds that the trial court will have to decide it during the trial proceedings as to whether the second defendant is a proper and necessary party. The question as to whether the second defendant is a necessary party or not cannot be decided in an application filed by the defendant who remains ex-parte seeking permission to participate in the trial proceedings.
16. After all, the trial proceedings are pending before the trial court. Not much hardship will be caused to the plaintiff if the second defendant is permitted to participate in the trial proceedings. As rightly pointed out by the learned counsel appearing for the second defendant, if the permission sought for by the second defendant to participate in the trial proceedings under Order 9 Rule 7 is rejected, the trial court can at best pass an ex-parte decree as against the second defendant. The said proceedings will give scope for the second defendant to invoke provisions under Order 9, Rule 13 C.P.C. There is every scope for such multiplicity of proceedings, if the right to participate in the trial proceedings made by the second defendant is negatived.
17. For all these reasons, I find that there is no substance in the revision petition filed by the first defendant. Therefore, the revision petition fails and stands dismissed. There is no order as to cost. Connected miscellaneous petition is also dismissed.
vaan To The Subordinate Court, Madurantakam