Madras High Court
N.Maheswari vs Mariappan on 24 September, 2012
Author: S.Rajeswaran
Bench: S.Rajeswaran
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 24.09.2012
CORAM
THE HONOURABLE MR.JUSTICE S.RAJESWARAN
C.R.P.(NPD)No.3487 of 2011
and
M.P.No.1 of 2011
N.Maheswari ... Petitioner
Vs.
1.Mariappan
2.Lakshmipathi
3.Elumalai ... Respondents
Prayer : Civil Revision Petition is filed under Article 227 of the Constitution of India, against the Judgment and Decree in O.S.No.3 of 2002 dated 18.06.2007 on the file of the learned District Munsiff at Chengalpet decreeing the suit as prayed for.
For Petitioner : Mr.R.Srinivas
For Respondents : No Appearance
*****
ORDER
This Civil Revision Petition has been filed under Article 227 of the Constitution of India, praying to set aside the judgment and decree in O.S.No.3 of 2002 on the file of the District Munsif Court, Chengalpattu. The main contention of the revision petitioner, who is a third party to the suit proceedings, is that the Trial Court decreed the suit mechanically without application of mind resulting in grave injustice being caused to the revision petitioner herein. Therefore, she applied for leave for filing the Civil Revision Petition and after obtaining leave, the above Civil Revision Petition has been filed for the aforesaid relief.
2.Normally, this Court will not entertain any Civil Revision Petition under Article 227 of the Constitution of India against a judgment and decree passed in a suit, as the aggrieved party could very well maintain a fully-fledged First Appeal to the Appellate Court. However, considering the nature of the case and the peculiarity of the judgment passed by the Trial Court, I consider this revision petition as an extraordinary one and consequently proceed to dispose off the same.
3.O.S.No.3 of 2002 was filed by one Mariappan, who is the first respondent herein, for a declaration, declaring his title to the suit properties and for a permanent injunction restraining the defendants from in any manner interfering with the plaintiff's possession and enjoyment of the suit properties. The suit property is situated in 23, Vengadamangalam Village, Guduvancherry Firka, Chengalpattu Taluk and comprised in old S.No.91/6 of an extent of 2.42 Ac. Kist. The first defendant in the suit is one Lakshmipathi, the second defendant herein and the second defendant in the suit is one Elumalai, the third respondent herein. The revision petitioner herein / a third party purchased the suit property from the second defendant in the suit / the third respondent herein.
4.The case of the plaintiff in O.S.No.3 of 2002 is that, the suit properties were originally owned by his wife Nesamani and it was situated in S.No.91/E measuring an extent of Ac. 2.42 cents. The plaintiff's wife purchased the property from one Deivayani Ammal under an oral sale. The plaintiff's wife has been in possession of the suit properties since 1980, cultivating the land and by paying kists and other charges. In any event, by her continuous possession and enjoyment for more than the statutory period, the plaintiff's wife has also prescribed her title. Since her possession was sought to be disturbed by 1) Deivayani Ammal, 2) Lakshmipathy and 3) Ramakrishnan Pillai, she filed a suit in O.S.No.430 of 1989 on the file of the District Munsiff Court, Chengalpattu, for a permanent injunction. Though the suit was dismissed, she succeeded in the appeal filed in A.S.No.67 of 1990 on the file of the District Munsiff Court, Chengalpattu. After obtaining a decree for permanent injunction on 29.01.1991, in A.S.No.67 of 1990, the plaintiff's wife applied for grant of patta on 18.06.1996. On 19.03.1997, the Tahsildhar, Chengalpattu informed that the decree obtained by her is only for a permanent injunction and therefore, unless the title is declared by the Court the patta could not be issued to her. To her surprise, she was further informed that S.No.91/6 has been sub-divided into 91/6A, 91/6B2 and 91/6B1 and items 1 and 2 of the suit property have been in the name of the second defendant / Elumalai and item No.3 has been in the name of the first Defendant / Lakshmipathy. According to the plaintiff, the defendants have no title nor possession. The second defendant is claiming that he has purchased the property, but, the same was made subsequent to the decree obtained by his wife. His wife Nesamani executed two settlement deeds in favour of the plaintiff settling the suit property. By virtue of the settlement deeds, the plaintiff has become the owner and he is now in possession of the same. Therefore, the suit in O.S.No.3 of 2002 has been filed for the aforesaid relief.
5.The first defendant remained ex-parte and the second defendant / Elumalai alone contested the suit by filing a written statement. In the written statement filed by the second defendant, it is stated that neither the plaintiff nor his wife has any title or possession over the suit property. The alleged oral purchase by the plaintiff's wife is false and concocted and in any event oral sale is invalid under the provisions of the Transfer of Property Act and Registration Act. It was further pointed out by the second defendant that he is not a party to the suit filed in O.S.No.430 of 1989 and A.S.No.67 of 1990. Title cannot be sought for by the plaintiff's wife by virtue of a decree of permanent injunction. Hence, the revenue authorities rightly rejected her claim for patta. The alleged settlement deeds are sham and invalid and that would not bind the second defendant. When the plaintiff's wife herself has no title nor possession, she cannot settle the same on the plaintiff. It is further stated by the second defendant that he is the absolute and exclusive owner of S.No.91/6 with specified boundaries. He had purchased the same on 10.02.1986 for a valuable consideration and the same was duly registered. Eversince the date of purchase the second defendant has been in possession of the said item which has been subsequently divided into S.No.91/6A and 91/6B2, which are the suit items 1 and 2. Patta and the other revenue records were also transferred in the name of the second defendant after due enquiry. It is further stated that his purchase is much prior to the filing of the suit by the plaintiff's wife. However, in O.S.No.430 of 1989, the second defendant's vendor Ramakrishna Pillai was arrayed as a party when Ramakrishna Pillai had sold the property to the second defendant on 10.02.1986 itself and thus, at the time of filing of the suit in O.S.No.430 of 1989, Ramakrishna Pillai had no title nor interest over the suit items 1 and 2. However, the suit was filed against unnecessary parties and obtained a decree on the basis of which all the subsequent activities have taken place which are all illegal and are unsustainable. Hence the second defendant prayed for the dismissal of the suit.
6.On 28.08.1986, the plaintiff was examined in chief through affidavit and Ex.A1 to A4 which are certified copies of the documents and the Decree in A.S.No.67/90, Registered Settlement Deed dated 17.03.1998, Registered Settlement dated 11.03.1998 and order of the Tahsildhar dated 11.03.1997 were all marked on the side of the plaintiff. On 02.09.2006, very curiously, the plaintiff informed the Court that he is not pressing the suit against the second defendant, even though the second defendant is claiming title over the items 1 and 2 of the suit schedule property and denying the title of the plaintiff and the plaintiff's wife. The learned Judge proceeded to pass a judgment on 18.06.2007, in which, she clearly recorded that the first defendant called absent and he was set ex-parte and the plaintiff has not pressed the suit against the second defendant. The learned Judge has framed three issues which are as follows:
1) Whether the plaintiff is entitled for the relief of declaration as prayed for?;
2) Whether the plaintiff is entitled for the relief of permanent injunction as prayed for?; and
3) To what other relief?
7.Having framed the above said three issues, the Learned Judge very curiously passed the judgment in three lines against both the defendants which are as follows:
"Heard; Judgment pronounced; Heard; Perused; Satisfied; Claim proved; In the result, suit is decreed as prayed for; No costs."
8.Aggrieved by the above said three-line judgment, the revision petitioner who is a third party to the suit proceedings and who purchased item Nos.1 and 2 of the suit property from the second defendant N.Elumalai on 23.11.2004, filed the above revision petition assailing the judgment and decree as illegal and has been passed without reference to the Code of Civil Procedure.
9.Heard the learned counsel appearing for the revision petitioner and there is no representation on the side of the first respondent. With regard to the other respondents, even though they have been served and their names appear in the list non represents them.
10.I am in entire agreement with the submissions made by the learned counsel appearing for the revision petitioner that this is an extraordinary case, in which, this Court has to exercise its power under Article 227 of the Constitution of India, as for the first time, I have come across such a judgment that has been passed by the trial Court in O.S.No.3 of 2002. I am appalled and disgusted with the way the trial Court disposed off the suit and though I would like to say more, judicial restraint requires this Court from saying much more without giving notice to the presiding officer.
11.Obviously, the trial Court knows that the suit itself has not been pressed against the defendant No.2 and it is the first defendant who was set ex-parte, which means, no decree could be passed against the second defendant and the suit is to be treated as dismissed in so far as the second defendant is concerned. In so far as the defendant No.1 is concerned, even though he remained ex-parte, a duty is cast upon the trial Court to frame necessary issues and to give a judgment on the basis of the evidence adduced by answering those issues. The Court cannot simply pass a judgment and decree as prayed for without giving any reasons, just because the defendant remained ex-parte. In fact, the onus is more on the part of the trial Court when defendant / defendants remain ex-parte, as the trial Court has to go through the plaintiff's evidence, his claim, etc. to find out whether the plaintiff has proved his case. Merely because there is no contest, as the defendant does not appear, it does not mean that the plaintiff has proved his case in entirety. In so far as the case in hand is concerned, it is a typical example of mis-carriage of justice as the trial Court after framing three issues, did not discuss anything with regard to those issues by evaluating the evidence and simply decreed the suit in a slip-shod manner, that too, against the second defendant also when the plaintiff himself admits that he has not pressed the suit against the second defendant.
12.When such a judgment has been passed by the trial Court, this Court cannot close its eyes and direct the revision petitioner to go to the Appellate Court when the judgment and decree is apparently on the face of it illegal. Hence, I have no hesitation in exercising the powers under Article 227 of the Constitution of India in interfering with the judgment passed by the trial Court and the same is set aside as illegal and opposed to the provisions of C.P.C.
13.In the result, the Civil Revision Petition is allowed and O.S.No.3 of 2002 is dismissed in so far as the second defendant / the third respondent herein is concerned, as the matter has reached its finality as against the second defendant / third respondent herein. In so far as the first defendant is concerned, the matter is to be remanded to the trial Court to pass a judgment after adducing evidence and answering the three issues framed by the trial Court. As already observed by me, just because the first defendant remained ex-parte, it does not mean that the plaintiff has proved his case as against the first defendant. Therefore, the trial Court has to re-consider the claim of the plaintiff against the first defendant on the basis of the evidence adduced and after deciding the issues framed by the trial Court.
14.In the result, the Civil Revision Petition is allowed and O.S.No.3 of 2002 is remanded for fresh consideration in so far as the first defendant / second respondent herein is concerned. In so far as the second defendant is concerned, as the plaintiff / first respondent herein himself has not pressed the suit against him, the same is dismissed against the second defendant / third respondent herein. No costs.
24.09.2012 vs Note:Issue order copy on 11.12.2012.
Index :Yes/No Internet :Yes/No To The District Munsif Court, Chengalpattu.
S.RAJESWARAN. J.
vs C.R.P.(NPD)No.3487 of 2011 and M.P.No.1 of 2011 24.09.2012