Madras High Court
Visalakshi vs Umapathy on 19 December, 2014
Author: T. Mathivanan
Bench: T. Mathivanan
IN THE HIGH COURT OF JUDICATURE AT MADRAS DATE:19.12.2014 CORAM THE HONOURABLE MR.JUSTICE T. MATHIVANAN C.R.P.PD.No.4082 of 2013 and M.P.No.1 of 2013 Visalakshi ... Petitioner Versus 1.Umapathy 2.Krishnaveni 3.Minor Prabhu 4.Minor Priya (Minors represented by their guardian 2nd respondent Krishnaveni) 5.Lakshmanan 6.Minor Saranya 7.Akash (Minors represented by their mother guardian Mahalakshmi) 8.Kalaivani 9.Lakshmi 10.Vasuki ..Respondents Prayer: Revision petition is filed against the fair and decretal order, dated 17.7.2013 and made in the suit in O.S.No.147 of 2007 on the file of the learned II Additional Sub Court, Cuddalore. For Petitioner: M/s.P. Mani For Respondent No.10 : Mr.R. Sunil Kumar For Respondent Nos.1 to 9 : No appearance ORDER
The revision petitioner is the first defendant, whereas the respondents 1 to 4 are the plaintiffs in the suit in O.S.NO.147 of 2007 on the file of the learned II Additional Subordinate Judge, Cuddalore. The respondents 5 to 10 herein are the defendants 2 to 7.
2. It is apparent from the records that the respondents 1 to 4 herein have filed the above suit as against the revision petitioner herein being the first defendant as well as against the respondents 5 to 10 seeking the relief of partition and for declaration that the alleged sale deed said to have been executed by the first defendant, viz., the revision petitioner in favour of the 7th defendant in the suit on 28.6.2007 in respect of item No.1 of the suit property as null and void and also for costs.
3. It is also manifested from the records that the revision petitioner being the first defendant and the 7th defendant alone have contested the suit by filing their respective written statements.
4. When the suit was listed for trial proceedings on 5.6.2009, the revision petitioner was not able to appear on account of his ill-health and therefore, an ex parte order came to be passed against her.
5. It is also revealed that the revision petitioner/D1 had filed an application in I.A.No.87 of 2013 under Order IX Rule 7 C.P.C. on 17.6.2013 to set aside the ex parte order, which was passed against him on 5.6.2009. It is, therefore, crystalised that the application seems to have been filed after the lapse of four years.
6. This application was resisted by the first respondent/plaintiff by filing their respective counter statements.
7. After hearing both sides, and on perusal of the records, the learned trial Judge had proceeded to dismiss the application on 17.7.2013 on the ground that the application was barred by limitation as contemplated under Article 137 of the Limitation Act, 1963.
8. Impugning the said order, the revision petitioner/D1 has filed this civil revision.
9. Heard M/s.P. Mani, learned counsel appearing for the petitioner and Mr.R. Sunil Kumar, learned counsel appearing for R10. Despite service of notice, the respondents 1 to 9 have not chosen to appear.
10. The only contention raised by Mr.P. Mani, who is the learned counsel appearing for the revision petitioner/D1, is that no period of limitation has been prescribed under Order 9 Rule 7 C.P.C. to set aside the ex parte order and therefore, Article 137 of the Limitation Act would not be made applicable.
11. On the other hand, Mr.R.Sunil Kumar, learned counsel appearing for the 10th respondent has adverted to that since no limitation has been prescribed under Order 9 Rule 7 C.P.C., Article 137 of the Limitation Act, 1963 being the residuary provision would be very well made applicable and therefore, if the revision petitioner/D1 wanted to file an application to set aside the ex parte order, dated 5.6.2009, he ought to have filed that application on or before 5.6.2012 on which date the period of three years expire. But the revision petitioner/D1 has filed the said application only on 17.6.2013 that too after the lapse of four years and therefore, the application is squarely barred by limitation as contemplated under Article 137 of the Limitation Act and hence, he has urged that the revision petitioner has no competency as the impugned order is within the bounds of Article 137 of the Limitation Act.
12. Mr.P. Mani, learned counsel for the petitioner has relied upon the following decisions in support of his contention.
a. Palani Nathan vs. Devanai Ammal (1989 (2) L.W.63).
b. Kasturi and others vs. Saravanan @ Sakthi Saravanan ((2010) 7 MLJ 802).
c. Rajaji vs. R.Krishnaji (2006-1-L.W.790).
13. On the other hand, Mr.R.Sunil Kumar, learned counsel appearing for R10, in order to fortify his contention has placed reliance upon the following decisions.
a. C.L Cleetus vs. South Indian Bank Ltd. and another (AIR 2007 Kerala 301).
b. Vikas Dedeech vs. Richhook Garments (P) Ltd., (Unreported judgment passed by the Delhi High Court, which was decided on 15.2.2013 in C.R.P.No.33 of 2013). c. V. Daniel and others vs. Annamma (MANU/KE/0205/2012). 14. Article 137 of the Limitation Act, 1963 envisages that any other application for which no period of limitation is provided elsewhere in this division, three years of limitation is prescribed and the period of limitation starts from the date when the right to apply accrues. 15. It is the settled proposition that Article 137 of the Limitation Act, 1963 will apply to any petition or application filed under any Act to a civil court. It is not confined to applications contemplated by or under the Code of Civil Procedure.
16. From the above context, it is thus clear that this Article applies to all petitions and applications and not confined to the applications contemplated by or under the Code of Civil Procedure.
17. It is the settled proposition that Article 137 of the Limitation Act 1963 will apply to any petition or application filed under any Act to a civil court.
18. In Palani Nathan vs. Devanai Ammal (1989 (2) L.W.63), referred to by Mr.P.Mani, the learned Single Judge of this Court has held that there is no limitation for filing a petition under O.9, R.7 C.P.C. Further, the question of filing written statement also does not arise as the first defendant is only adopting the written statement filed by her daughter and she wants to give evidence in support of her case. It cannot be said that the discretion used by the court below in allowing the application under O.9, R.7 C.P.C., is illegal or improper.
19. In the above cited case, it was argued on behalf of the revision petitioner before the learned Single Judge of this Court that an application filed by the first defendant to set aside the ex parte order is not maintainable since it is not filed within 30 days and it is barred by limitation. Further, since the first defendant has not filed written statement and the written statement is only now sought to be filed, in view of Order 8 Rule 10 C.P.C., the petition is not maintainable. On the other hand, the learned counsel for the respondent submits that the suit is still pending, that only an ex parte order was passed against the first defendant for her non-appearance on the date of first hearing that she wants to continue the proceedings already pending and that she did not file any separate written statement, but only adopts the written statement of her daughter which was filed already and wants to take part in the proceedings along with her.
20. After hearing both sides, the learned Single Judge of this Court has observed that for filing an application under O.9, R.7 C.P.C. no limitation is prescribed and that it is open to the Court to condone her absence and set aside the ex parte order and permit her to take part in the proceedings at any stage of the proceedings.
21. In an another decision in Kasturi and others vs. Saravanan @ Sakthi Saravanan, cited above, the learned Single Judge of this Court has endorsed that no limitation is prescribed to set aside the ex parte order passed under Order 9 Rule 7 C.P.C. and therefore, he has held that the Article 137 of the Limitation Act would not be made applicable and he has also referred to some related decisions.
22. In Rajaji vs. R. Krishnaji (2006-1-L.W.790), cited supra, the learned Single of this Court, has made distinction between the Articles 123 and 137 of the Limitation Act.
23. In this connection, she has observed that the prescribed period of limitation for an application under O.9, R.13 C.P.C. for setting aside an ex parte decree is 30 days, but not for an application to set aside an ex parte order, with the result that an application for setting aside the ex parte order shall be governed by the residuary clause contained in Art.137 of the Limitation Act.
24. In Rajaji vs. R. Krishnaji (2006-1-L.W.790), an application to set aside the ex parte order was filed after four months. It was dismissed by the lower court on the ground that the petition was filed beyond 30 days of the order and that the application to set aside the ex parte order ought to have been filed within 30 days from the date of the order and therefore, it is not maintainable.
25. Under these circumstances, the learned Single Judge of this Court has held that the Article 123 speaks of a decree passed ex parte and not an order. The legislature has maintained the difference between Decree and Order and Article 123 shall apply only to ex parte decrees or ex parte orders having the force of decree or order which finally determines the right of the parties.
26. The learned Single Judge has also held that, thus an order passed in a suit, finally determining the rights of the parties shall be a decree, while final order passed on an application shall simply be an order and not a Decree. Thus the word 'Decree' must be given the meaning assigned to it in the Civil Procedure Code. To put it differently, the prescribed period of limitation for an application under Or.9, R.13 C.P.C., for setting aside an ex parte Decree is 30 days, but not for an application to set aside the ex parte order with the result that an application for setting aside an ex parte order, shall be governed by the residuary clause contained in Article 137 of the Limitation Act.
27. In paragraph 20, the learned Judge has observed as under:-
20. The learned counsel appointed to assist the Court has drawn the attention of the Court to the decision reported in AIR 1988 Calcutta 358. This Court's finding that petition filed under Or.9 R.9 would be governed by Art.137 of the Limitation Act is fortified by the decision of the Full Court of the Calcutta High Court which reads :-
"As regards the limitation for filing the aforesaid application for restoration there is no specific provision in the Limitation Act 1963 and therefore such application for restoration would be governed by Art.137 of the Act and be filed within a period of three years as prescribed therein. Although the period of limitation for making an application for restoration of a suit dismissed for default under Or.9 is thirty days from the date of the order of dismissal, the application for restoration of miscellaneous case arising out of such application under Or.9, when such Misc. Case is dismissed for default, is not governed by the provisions of Art.122 of the Limitation Act in view of the fact that expressly in terms of the said Art.122, the miscellaneous case arising out of an application under Or.9 is not attracted."
28. The ratio applied by the learned Single Judge of this Court in Rajaji's case, has also been applied in C.L Cleetus vs. South Indian Bank Ltd. and another (AIR 2007 Kerala 301), wherein the Kerala High Court has observed that, It is true that there is distinction between applications which are filed under Order 9 Rule 13 and those filed under Order 9 Rule 7, in that while the former seeks cancellation of decree finally disposing of suits, the latter seeks cancellation of only orders setting the applicant ex parte, thus preventing him from participating in further proceedings in the suit. It is also true that unlike the applications under Order 9 Rule 13 there is no article in the Limitation Act providing any specific period of limitation for applications under Order 9 Rule 7. Such applications will be governed by Article 137, the residuary article which prescribes a period of three years.
29. The decision in Pilla Reddy and others vs. Thimmaraya Reddy and others ((1997) 1 MLJ 37) stands on a different footing and therefore, it need not be discussed in this case.
30. In an unreported judgment decided on 15.2.2013 by the Delhi High Court in Vikas Dedeech vs. Richlook Garments (P) Ltd., the decisions in Palani Nathan vs. Devanai Ammal (1989 (2) L.W.63), Kasturi and others vs. Saravanan @ Sakthi Saravanan ((2010) 7 MLJ 802), Rajaji vs. R.Krishnaji (2006-1-L.W.790) and C.L Cleetus vs. South Indian Bank Ltd. and another (AIR 2007 Kerala 301) have been referred to.
31. After having gone through the catena of decisions, the learned Single Judge of the Delhi High Court has held that the contention of the learned counsel for the petitioner that the applications under Order IX Rule 7 C.P.C., are governed by Article 137 of the Limitation Act, requires no discussion in view of the legal position as laid down in the above referred decisions.
32. On coming to the instant case on hand, as admubrated supra, the ex parte order, as against the revision petitioner/D1 was passed on 5.6.2009. But the application in I.A.No.87 of 2013 under Order 9, Rule 7 C.P.C., was filed on 7.6.2013, i.e., after the lapse of four years.
33. Admittedly, for filing the application under Order 9, Rule 7 C.P.C., no limitation is prescribed. It does not mean that an application under Order 9, Rule 7 C.P.C., to set aside the ex parte order can be filed at any point of time, i.e., even after several years as has been done in the present case on hand.
34. Since no limitation is prescribed under Order 9 Rule 7 C.P.C., like that of Order 9 Rule 13 as observed in Rajaji's case as well as in Vikas Dedeech's case (Delhi High Court), the provisions under Article 137 being residuary provision alone would be made applicable and therefore, under Article 137 of the Limitation Act, the period of limitation is prescribed as three years and since the application in I.A.No.87 of 2013 has been filed after the period of three years, it is squarely barred by limitation under Article 137 of the Limitation Act, 1963, as rightly concluded by the learned trial Judge, which according to this Court, does not require any interference and therefore, the revision petition deserves to be dismissed.
35. Accordingly, the civil revision petition is dismissed. However, there will be no order as to costs. Connected M.P. is also dismissed.
rnb 19.12.2014 Index:Yes/No. Internet:Yes/No. To The II Additional Sub Court, Cuddalore. T. MATHIVANAN, J. RNB C.R.P.PD.No.4082 of 2013 and M.P.No.1 of 2013 DATE: 19.12.2014