Madras High Court
S. Rajini And Another vs The Idol Of Arulmigu ... on 21 July, 1998
Equivalent citations: 1998(2)CTC567
ORDER
1. The Petitioners have filed the above C.R.P.S.R.No.42039 of 1998 to set aside the judgment and decree in O.S.No.2094 of 1984, dated 8.8.1996. The said C.R.P.S.R.Number was filed on 29.6.1998. The Registry returned the papers to clarify the doubt about the maintainability. The following reasons are given by the Registry:-
(1) It may be stated how C.R.P. under Article 227 of Constitution filed by the petitioners herein, who are not parties in the lower court, without availing appeal remedy in the lower/appellate court, is maintainable in High Court?
(2) It may be stated against which proceedings the C.R.P. has been filed; preamble portion needs correction in this regard;
(3) certified copy of decree and judgment in C.C.No.2094 of 1984 not filed;
(4) certified copy of petition in E.P.No.818 of 1997 not filed;
(5) prayer needs revision in C.M.P.S.R. No.42041 since two proceedings may not be stayed in one stay petition.
2. The learned counsel appearing for the petitioners has clarified the position with respect to the doubts raised by the Registry. Not satisfied with the said clarification, it is posted before the Court to decide about the maintainability of the revision.
3. The first doubt that has been raised by the Registry is, since the petitioners want to set aside the judgment and decree in O.S.No.2094 of 1984, they cannot file the revision without even filing the copy of the same. The learned counsel has submitted that the petitioners are not parties to the said judgment and decree and so they cannot be expected to file the same. Further he has submitted that the petitioners applied for the judgment and decree but, so far, they have not been furnished to them, and, in view of the urgency they have filed the above revision. I am not able to accept both the submissions. It is well settled that without even filing the judgment and decree, they cannot maintain the Revision.
4. The Apex Court has held that it is mandatory on the part of the petitioner to produce the impugned orders when the petitioner is seeking to quash the impugned orders. Without producing the same, writ cannot be issued. The Apex Court in Surinder Singh v. Central Govt., 1986 (4) S.C.C. 670 has held as follows:
"Normally whenever an order of Government or some authority is impugned before the High Court under Article 226 of the Constitution, the copy of the order must be produced before it. In the absence of the impugned order it would not be possible to ascertain the reasons which may have impelled the authority to pass the order. It is therefore improper to quash an order which is not produced before the High Court in a proceeding under Article 226 of the Constitution."
In view of the above settled law the objection that has been raised by the office has to be sustained. Without even producing the copy of the judgment and decree, the petitioners cannot maintain the revision.
5. The petitioners have filed C.M.P.S.R. No.43080 of 1998 to dispense with the certified copy of the judgment and decree. In the affidavit filed in support of the petition it is not even stated that the petitioners have applied for the same and the court below has not furnished the same. Without talcing any steps to get the certified copy of the judgment and decree, which the petitioners want to set aside, the petitioners cannot be allowed to file the above Revision. Further, to appreciate the case of the petitioners, those documents are absolutely necessary. Without producing the same, the correctness of the contentions cannot be looked into.
6. On merits the learned counsel appearing for the petitioners has submitted that the petitioners are the heirs of the deceased defendant Subramania Pillai. He died on 30.1.1985, pending the suit The plaintiff filed an application to implead one son Kadirvelu as his legal heir. Since no objection was raised for the same, that petition was ordered. Subsequently the suit was decreed ex parte. At this stage, the petitioners have filed the above C.R.P.S.R.Number before this Court under Article 227 of the Constitution of India to set aside the said judgment and decree on the ground that without impleading all the legal representatives, the decree has been passed and so it is nullity and it cannot be executed by the plaintiff. It is not the case of the petitioners that they have approached the court below in accordance with the provisions of the Code of Civil Procedure. If really the petitioners feel that the said decree is a nullity and it cannot be executed, they can approach the court below under Section 47 of the C.P.C. For the reasons best known to the petitioners such a procedure is not adopted. The provisions contained under Article 227 of the Constitution of India is not meant to override the provisions under specific enactment and destroy the rights of the parties acquired under valid decree. Accepting such a claim would amount to allowing the process of law subterfuged.
7. Moreover, the suit is decreed after impleading one of the legal heirs of the deceased defendant and no fraud or collusion is alleged. The only objection of the learned counsel is that all the legal heirs of the deceased defendant have not been impleaded. In such circumstances it cannot be said that the said decree is a nullity. It is relevant to mention here that the petitioners have produced the legal heir certificate dated 15.3.1985 which is furnished to the brother of the petitioners, who has been impleaded as the legal representative of the deceased defendant. When this Court put a question to the learned counsel as to how the petitioners got the said certificate, the learned counsel has submitted that the same was given by the brother of the petitioners. Even from the above said fact, the petitioners cannot allege any act of fraud against their brother. The Apex Court while dealing with similar situation in Mohd Sulaiman v. Mohd.Ismail, has held as follows:-
"In either case, where after due enquiry certain persons are impleaded after diligent and bona fide enquiry in the genuine belief that they are the only persons interested in the estate, the whole estate of the deceased will be duly represented by those persons who are bought on the record or impleaded, and the decree wilt be binding upon the entire estate"
The abovesaid decision has been followed in Dolai Maliko v. Krushna Chandra, where in it has been held as follows:-
"This is not to say that where heirs of an appellant are to be brought on record and all of them should not be brought on record and any of them should be deliberately left out. But if by oversight or on account of some doubt as to who are the heirs, any heir of a deceased appellant is left out that in itself would be no reason for holding that the entire estate of the deceased is not represented unless circumstances like fraud or collusion to which we have referred above exist".
Again, in Harihar Prasad V.Balmiki Prasad, , following , the Apex Court has held as follows:-
"As pointed out by this Court in the almost universal consensus of opinion of all the High Courts is that where a plaintiff or an appellant after diligent and bona fide enquiry ascertains who the legal representatives of a deceased defendant or respondent are and brings them on record within the time limited by law, there is no abatement of the suit or appeal, that the impleaded legal representatives sufficiently represent the estate of the deceased and the decision obtained with them on record will bind not merely those impleaded but the entire estate including those not brought on record"
8. The learned counsel has relied on the decision in Annapoorni v. Janai, 1995 (1) LW 141 and submitted that this Court should invoke suo motu power under Article 227 of the Constitution of India to set aside the judgment and decree of the lower court, in view of the fact that the decree suffers from error of law apparent on the fact of record. In the above said decision the plaintiff filed a suit for declaration of her title to the property on the ground that the suit property was purchased from out of her own earnings and the plaintiff is a class I heir under the Hindu Succession Act. That was resisted by the defendant challenging the status of the plaintiff as wife of the deceased. The suit was decreed ex parte and the defendant filed an application to set aside the ex parte decree. That was allowed. Again when the suit was posted for trial the defendant remained ex parte and again the suit was decreed ex parte. A third party filed a suit against the plaintiff and the defendant for declaration of his title to the suit property and recovery of possession. That suit was dismissed long after the disposal of the earlier suit. The plaintiff took execution proceedings for delivery of possession pursuant to the decree obtained by her. That was resisted by the defendant. When the civil revision petition was being heard, a new argument was raised saying that even the defendant who is the mother of the husband of the plaintiff is also class I heir and therefore the decree declaring the plaintiff's exclusive title-cannot be sustained. In view of the undisputed fact, after perusing the records, Srinivasan, J., as he then was held that the defendant is also entitled to one half of the property as class I heir and has declared that one half of the defendant's right in the suit property and directed to pass a final decree on that basis. The learned Judge has rightly exercised the jurisdiction under Article 227 of the Constitution of India in that case in view of the admitted facts. There cannot be any doubt about the principle laid down in the abovesaid decision. The abovesaid decision cannot be made applicable to the case on hand.
9. In view of the above findings, it cannot be said that the decree passed with respect to the property in question by impleading one son alone cannot be said to be nullity. In such circumstances, the question of invoking the jurisdiction under Article 227 of the Constitution either suo motu or at the instance of the petitioners will not be said that the said decree passed by the court below on the face of it is illegal or erroneous or without jurisdiction. The abovesaid discussions are sufficient to dissuade me from extending the indulgence under Article 227 of the Constitution of India in favour of the petitioners.
10. For the foregoing reasons, I am of the view that the C.R.P.S.R.N0.42039 of 1998 is not maintainable both for want of certified copies of the judgment and decree and also on merits, and the same is accordingly rejected No costs. Consequently, C.M.P.S.R. No.42041, 42042 and 43080 of 1998 are also rejected.