Madras High Court
N. Ramanathan And Another vs Meenakshisundaram on 8 August, 2001
Author: V. Kanagaraj
Bench: V. Kanagaraj
ORDER
1. Both the above civil revision petitions have been filed by one and the same parties, viz., the 11th and 12 defendants in the suit, as against the sole plaintiff and these defendants No. 11 and 12 have filed two applications before the lower court the first one in I.A. No. 641 of 1998 in the pending suit in O.S. No. 104 of 1995 and the second one in I.A. No. 655 of 1998 on the file of the Court of Subordinate Judge, Devakottai.
2. I.A. No. 641 of 1998 has been filed by defendants No. 11 and 12 under Order 9, Rule 7, C.P.C. seeking to set aside the ex parte order dated 9.9.1997 and the other I.A. No.655 of 1998 has been filed under Section 151, C.P.C. seeking to appoint some other advocate commissioner to inspect the suit property and to file a report with plan, in the place of the advocate commissioner already appointed by the court. The lower court has passed individual orders in both those applications and since both the applications have been filed by one and the same parties to the suit against the same plaintiff and since being forming part of the same suit, both the above civil revision petitions are heard together and this common order is passed.
3. The petitioners would file their first application in I.A. No.641 of 1998 on averments such as that he is a resident of Madurai town and that he had already appeared before the court in person in the above suit; that since he is working at Madurai, he requested one of his friends at Karaikudi to follow-up the matter and inform him of the developments; that since that friend did not communicate him the developments of the case, the petitioners, who are the 11th and 12th defendants had been set ex parte on 9-9-1997; that their absence was neither wilful nor wanton and on such grounds, they would pray to set aside the ex parte order passed by the lower court.
4. This application would be opposed on the part of the respondents before the lower court on a short counter filed with averments such as that the petitioners were aware of the proceedings of the case and in order to cause unnecessary delay and inconvenience to the respondent, they have filed the the petition and that the petitioners would be in no way affected if the petition was not allowed. Only on these two grounds alleged, the respondent would pray to the dismiss the application.
5. Based on these pleadings, the lower court would pass an order dismissing the application with costs on grounds that for the allegations that the petitioner has relied on his friend to inform him of the position and developments of the case and that he failed to inform the same and since the petitioner is a resident of Madurai. he was not aware of the proceedings etc., have not been proved by proper evidence either oral or documentary; that in spite of receipt of summons on 9.9.1997, the petitioners have not responded 10 the later proceedings for about an year and the reasons assigned for such a long delay are also not substantiated, nor reliable, and therefore, would ultimately arrive at the conclusion to dismiss the application with costs.
6. It is an application filed under Order 9, Rule 7, C.P.C. which contemplates that the defendant on his appearance assigns good cause for his previous non-appearance, he may, upon such terms as the Court directs as to costs or otherwise, be heard in answer to the suit as if he had appeared on the day, fixed for his appearance. Rule is clear to the effect that on such terms of costs imposed, the petition could be allowed, since it is a suit pending thereby meaning that it is unreasonable on the part of the court to reject the plea of such a petition being filed by one of the defendants or some of defendants, since it is unreasonable to obstruct the defendant from participating in the very suit proceedings, where his valuable rights are involved, and therefore, as concluded by many upper forms of law that even in the event that such petitioners are not able to substantiate the reasons assigned on their part for their non-appearance in the past, they could be punished only on such terms as costs being saddled on them, but not denying their right to contest the very suit in which their valuable rights get involved.
7. On the above general honest thought, the lower court should have allowed the appeal on heavy costs, instead of denying the opportunity for the petitioners to defend the case, wherein their valuable rights are involved. Moreover, the denial of such opportunity just for the simple reason that such petitioners are slack in their appearance, especially in realisation of their fault when they come forward to continue the proceedings, they must be given opportunity to be heard in the suit, thus giving effect to the principles of natural justice. Even though they were at a stage, set ex parte in the pending suit, the only way to punish such parties is to saddle them with heavy costs, but not with denial of opportunity to contest the very suit.
8. In view of the above observations, this court, so far as it is concerned with C.RP. No. 2856 of 1999 is of the opinion to allow the revision petition, setting aside the order passed by the lower court in dismissing the application filed by the petitioners under Order 9, Rule 7, C.P.C.
9. So far as the other C.R.P. No. 2857 of 1999 is concerned, the petitioners have prayed therein for the appointment of some other Commissioner, instead of one who has already been appointed by the court. It seems that the court has already appointed one R. Sundrasrinivasan as the advocate commissioner. The petitioners would submit that the said advocate appointed as the Commissioner by the lower court, has been the junior in the office of Sri R. Rajagopalan, who prepared the very suit, and therefore, it is not fair and proper to appoint the said advocate as the Commissioner, in this matter. Moreover, in spite of clear instructions imparted by the court to issue, notice to all the parties to the suit concerned and to inspect the suit property in their presence and submit the report and plan. On such observations made, the learned Commissioner appointed by the court had not given any notice to all the parties concerned, but had inspected the suit property, which the petitioner came to know only on 31.10-1998 i.e. the date on which the case was again posted.
10. The further averments are that the petitioner has paid the necessary court-fee along with the separate memo, for getting his 1/6th share in the suit properties, and hence, it is just and proper to appoint some other advocate commissioner in this proceeding of alloting 1/6th share in the suit property, lest he would be subjected to irreparable loss and hardship and in the said process, no prejudice is caused to the other side also. On such grounds, the petitioners have sought for a different Commissioner to be appointed in the place of one who had already been appointed by the court for inspecting the suit property and to file his report with plan.
11. However, no counter seems to have been filed, nor one made available on record.
12. Based on the above pleadings in the application, the lower court having remarked that the other I.A. filed by the petitioner in Interlocutory Application No. 641 of 1998 seeking to set aside the ex parte order dated 9.9.1997 made against them had already been dismissed and in such a situation, the petitioners have come forward to file this application to appoint some other Commissioner in the place of one who has already been appointed for determining the final decree proceedings, on inspection; that since the other application to set aside the ex parte order passed against them itself having been already dismissed, this application has no reason to be allowed, and therefore, on such grounds would dismiss this application also.
13. On the contrary, the question raised on the part of the respondent is thought provoking and the allegations made on the part of the petitioner to the effect that the Commissioner already appointed by the court is the junior in the office of an advocate, viz., R. Rajagopalan, who drafted the very plaint, and therefore, it is not fair and proper to appoint the junior counsel of the plaintiffs lawyer as the Commissioner, stands unchallenged since there is no counter or counter arguments seem to have been filed or advanced on the part of the other side and only citing the dismissal of the application filed by the petitioner in I.A. No. 641 of 1998 to set aside the ex parte order, the lower court, without assigning any other reason much less in a tangible manner for the main allegation levelled against the Commissioner by the petitioner, has bluntly decided the above application dismissing the same with costs, thereby revealing that the allegations made by the petitioners against the Commissioner coming to be proved to be true and in these circumstances, it is always desirable on the part of the court below to think of appointing a new Commissioner in the place of one already appointed. Therefore, this order passed by the lower court since being absolutely bereft of any merit, the same cannot be sustained in law. However, it is desirable that the lower court appoints a new advocate commissioner, on payment of the Commissioner's fee, etc., by the petitioners to allay the fear and apprehension of the petitioner.
In result
(i) both the above civil revision petitions succeed and they are allowed;
(ii) the fair and decretal orders dated 10.12.1998 respectively made in I.A. Nos. 641 and 655 of 1998 in O.S. No. 104 of 1995 by the Court of Subordinate Judge, Devakottai, are hereby set aside;
(iii) so far as C.R.P.No.2856 of 1999 is concerned, since the petitioners have caused much inconvenience to the respondent by absenting for nearly one year it is appropriate to allow the application with costs of Rs. 750, which shall be paid by the petitioners in favour of the respondent, within thirty days from the date of receipt of a copy of this order by the lower court, lest this order shall automatically get cancelled;
(iv) so far as C.R.P. No. 2857 of 1999 is concerned, the lower court is directed to appoint a new advocate commissioner- in the place of one who has already been appointed by the lower court, of course, on payment of Commissioner's fee, etc. by the petitioners, as fixed by the court.
(v) however, in the circumstances of the case, there shall be no order as to costs in C.R.P. No. 2857 of 1999.
Consequently, C.M.P. No. 16120 of 1999 is closed.