Madras High Court
Baskar vs Jeeva @ Jeevayan on 17 December, 2014
Author: P.R.Shivakumar
Bench: P.R.Shivakumar
IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 17.12.2014 CORAM: THE HON'BLE MR.JUSTICE P.R.SHIVAKUMAR CRP (PD) No.1234 of 2012 and M.P.No.1 of 2012 Baskar ... Petitioner Vs. Jeeva @ Jeevayan ... Respondents PRAYER: Revision Petition filed under Article 227 of the Constitution of India, against the order and decreetal order dated 19.01.2012 passed in I.A.No.1809 of 2011 in O.S.No.166 of 1979 by the Principal District Munsif, Gingee. For Petitioner : Mr.M.Murali Dharan For Respondent : Mr.G.Ravi ORDER
Heard.
2. This Civil Revision Petition has been filed under Article 227 of the Constitution of India, challenging the order of the Principal District Munsif, Gingee, dated 19.01.2012 made in I.A.No.1809 of 2011 in O.S.No.166 of 1979.
3. The above said suit was filed totally against 15 defendants including the respondent herein, for declaration of title in respect of the plaint 'B' schedule properties and for partition and separate possession in respect of plaint 'A' schedule properties. The respondent figures as defendant No.8 in the suit. Admittedly, summons were not served on him and only substituted service by effecting publication was made. Pursuant to substituted service by publication, the respondent was found absent on 13.12.1979 and an order setting him ex parte came to be passed. Even though such an order setting him ex parte was passed on 13.12.1979 till 01.11.2011, the date on which, the respondent came forward to file an application under Order 9 Rule 7 of C.P.C. to set aside the ex parte order and to permit him to fully participate in the proceedings, the suit had been kept pending and not even preliminary decree came to be passed. Under such circumstances, claiming absence of knowledge regarding the pendency of the suit and contending that on the day before the filing of the petition he got the knowledge that the suit filed by the petitioner was pending and immediately he took steps to file the petition under Order 9 Rule 7 C.P.C., the respondent filed the petition in I.A.No.1809 of 2011.
4. The revision petitioner, who is the plaintiff in the suit, would have very well conceded the same and prayed for imposing a condition that the respondent should file written statement within a stipulated time. However, probably due to enormous time gap between the date on which the respondent was set ex parte and the date on which the petition under Order 9 Rule 7 of C.P.C. came to be filed, he chose to resist the petition. It was also contended by the learned counsel for the revision petitioner that since no specific period of limitation was prescribed for application under Order 9 Rule 7 C.P.C., Article 137 of the Limitation Act would be attracted and that since the petition was not filed within three years from the date of passing of the order setting him ex parte, the petition was liable to be dismissed as barred by limitation. The learned trial Judge, after considering the rival submissions, rejected the above contentions raised by the revision petitioner/plaintiff, accepted the reasons assigned by the respondent herein for his absence on the date of hearing leading to the passing of an order setting him ex parte and for his belated approach to the Court with an application under Order 9 Rule 7 C.P.C. Accordingly, by order dated 19.01.2012, the learned trial Judge allowed the petition and set aside the order dated 13.02.1979 setting him ex parte in the above said suit and thereby permitted him to take part fully in the proceedings.
5. Order 9 Rule 6 (1)(a) C.P.C. provides that the Court may make an order that the suit shall be heard ex parte if it is proved that the summons on the defendant was duly served. Such a decision to hear ex parte is subject to power of the Court to set aside the same. Order 9 Rule 7 C.P.C. does not contemplate the filing of a petition to set aside the order passed in a suit to the effect that the suit be heard an ex parte. It simply states that when the court has adjourned the hearing of the suit ex parte, and the defendant, at or before such hearing, appears and assigns good cause for his previous non-appearance, the Court may direct upon such terms as to costs or otherwise, that he may be heard in answer to the suit as if he had appeared on the day fixed for his appearance. The said proviso has been interpreted in a number of decisions in the following manner.
(i) An application under Order 9 Rule 7 C.P.C. shall be need only if the defendant wants status quo ante in respect of the proceedings to be restored; and
(ii) If he does not want the status quo ante to be restored and he wants to take part from the date on which he enters appearance, even without such an application, he can participate in the proceedings as of right.
6. In this case, though there is enormous delay, the suit has not attained finality till the respondent entered appearance and filed the application under Order 9 Rule 7 C.P.C. Strictly speaking, he cannot be prevented from taking part in the proceedings from the date of appearance, namely, the date of filing the said petition. As the suit had not attained finality either by passing of an interim decree or preliminary decree or final decree, the petition filed by him under Order 9 Rule 7 C.P.C. would not be rejected as belated or one filed beyond the period of limitation. Since summons had not been served directly and only substituted service was effected by paper publication, even after passing of an ex parte decree, the Judgment Debtor can file a petition under Order 9 Rule 13 of C.P.C. to set aside the ex parte decree.
7. It shall be pertinent to note that even after passing of ex parte decree, the defendant can file an application under Order 9 Rule 13 C.P.C. to set aside the ex parte decree besides having a right to file an appeal against the ex parte decree without even seeking an order setting aside the ex parte decree. The fact that summons was not duly served is also said to be one of the valid reasons for setting aside ex parte decree. In this case, as pointed out supra, no decree has been passed and hence, the respondent would not be prevented from taking part in the proceedings from the date on which he entered appearance. However, besides citing the fact that summons was not duly served on him and on the other hand, it was served by substituted service by effecting publication while he was away from the suit village, he has assigned valid reasons for his non-appearance from the date of first hearing of the suit till the date of his filing an application under Order 9 Rule 7 C.P.C. The learned trial Judge accepted the genuineness of the reasons assigned by the respondent and allowed the petition, by the order which is impugned in the present revision. This Court does not find any infirmity or illegality in the order passed by the trial court.
8. In the result, this Civil Revision Petition is dismissed. However, in view of long pendency of the case, this Court directs that the respondent shall file his written statement, if not filed earlier, within three weeks from the date of receipt of a copy of this order in the trial Court. The trial Judge shall make an endeavour to dispose of the suit within four months from the date of receipt of a copy of this order. No costs. Consequently, the connected Miscellaneous Petition is closed.
17.12.2014
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Index : Yes / No.
Internet : Yes / No.
To
The Principal District Munsif,
Gingee.
P.R.SHIVAKUMAR, J.
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CRP (PD) No.1234 of 2012
17.12.2014