Madras High Court
Varada Reddiar And Anr. vs Jayachandran And Ors. on 7 February, 1996
Equivalent citations: 1996(2)CTC611, (1996)IMLJ629
ORDER Subramani, J.
1. This revision petition is by two strangers who are not parties to the suit, but who feel aggrieved by the ex parte judgment made in O.S. No. 619 of 1991 on 24.9.1991, by the learned District Munsif, Tirukoilur.
2. Respondents 1 and 2 herein filed the said suit against the third respondent herein. The third respondent is the Trustee of two Temples mentioned in the plaint. The suit property also belongs to the Temple. Respondents 1 and 2 claimed themselves as lessees under the Temple for the period 1.6.1991 to 30.6.1992. They said that plaint A and B Schedule items are in their possession on the basis of the lease, which was to expire on 30.6.1992. They filed the suit on the basis that the third respondent herein was about to terminate their lease and reaction the property even before the expiry of the period. They wanted to restrain the Temples from conducting any auction either on 24.7.1991 or on any other date, and that their possession should not be disturbed.
3. It is seen that even though the third respondent herein (defendant-temple) was served with summons, no one represented the Temple, nor entered appearance through counsel. Finally an ex parte decree was passed. The relevant portion of the decree reads thus;
4. By virtue of the decree, the third respondent was prohibited from auctioning or leasing out the property either on 24.7.1991 or an any other date. That means, there was a permanent bar or prohibition against the Temple from leasing out the properties even though the plaintiffs has claimed injunction only upto 30.6.1992. It seems, the Temple wanted to lease out the property subsequently, and the petitioners were interested in taking the same on lease. But, at that time, some contempt application was moved by respondents 1 and 2 herein on the allegation that the petitioners herein are attempting to trespass into the property, with the active assistance of the third respondent herein. It was at that time, the present civil revision petition was filed under Article 227 of the Constitution of India.
5. Before this revision petition was admitted, leave was granted for moving this revision, and notice was also served on the respondents.
6. I have heard learned counsel on both sides.
7. I have already said that the claim of respondents 1 and 2 was only upto 30.6.1992, and even they wanted a decree prohibiting the Temple from disturbing their possession only till the expiry of their term of lease, since they apprehended that they might be dispossessed before the expiry of the term, and they thought that some action might be taken on 24.7.1991. A copy of the plaint is also made available among the typed set of papers. A reading of the plaint makes it clear that even the plaintiffs did not claim any right matchless a permanent right over the plaint mentioned property against the Temple. But, simply because the Temple remained ex parte, a decree was drafted in such a way that the Temple was permanently prohibited from leasing out its properties.
8. Even though the defendant was exparte in the suit, there was a duty on the part of the Court below to apply its mind before granting the decree. By virtue of the decree, we find that some right has been given to the plaintiffs in the suit which even they did not ask for. Once a decree is obtained, the respondents 1 and 2 herein (Plaintiffs) have exploited the same to their benefit.
9. In this connection, it is better to follow a decision of the Court reported in Annapoornni v. Janaki 1991 (1) LW 141. When the revision petition came up for hearing, SrinivasanJ. treated it as a suo motu revision petition, by exercising powers under Article 227 of the Constitution of India.
10. That was a case where a daughter-in-law filed a suit against the mother-in-law, claiming to be a legal heir of her husband. She claimed that she is the absolute owner of the property, though the mother also had an equal share as an heir to her son. The mother did not contest the matter, and ultimately a decree was passed in favour of the plaintiff. Execution proceedings were taken. It was at that time, a question came up for consideration whether the decree is legally valid. The learned Judge said thus:-
When this Court finds that a decree suffers from an error of law apparent on the face of the record owing to non- application of mind of the Court, to the relevant principles of law, this Court cannot keep silent and allow the decree to be in force, particularly, when it causes grave injustice. There can be no doubt whatever that under the Hindu Succession Act, certain persons are designated as Class I heirs and all of them are entitled to succeed to the estate of the deceased Hindu There is no earthly reason for depriving the mother of the deceased, of her legitimate share in the estate which in this case happens to be a moiety.
This is a typical case of miscarriage of justice which should be rectified the moment it comes to the notice of the Court. It is only for that reason, I am exercising my powers under Section 115 of the Code of Civil Procedure and Article 227 of the Constitution of India.
The case on hand is also similar. A decree which is beyond the scope of the suit has been granted, thereby depriving certain Temples of their properties. A wrongful gain has been obtained by the plaintiffs, respondents 1 and 2 herein. The decree passed by the Court below has resulted in miscarriage of justice. Therefore, this is a fit case where I have to exercise my powers under Article 227 of the Constitution of India. Accordingly by exercising my powers under Section 115, C.P.C. and Art. 227 of the Constitution, I modify the decree passed by the Court below as follows:
The decree of the Court below will be read as if injunction was there restraining the defendant (third respondent herein) for conducting auction on 24.7.1991 or any other date till 30.6.1992, and the defendant was entitled to auction or lease out the properties after the said period.
11. The Civil Revision Petition is allowed as indicated above. No costs.