Madras High Court
Eswaran vs A.Karthikeyan on 12 December, 2024
C.M.P.No.20938 of 2024 in
C.R.P.(PD)SR.No.121387 of 2024
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 12.12.2024
CORAM :
THE HONOURABLE MR.JUSTICE V. LAKSHMINARAYANAN
C.M.P.No.20938 of 2024 in
C.R.P.(PD)SR.No.121387 of 2024
Eswaran .. Petitioner
Vs
1.A.Karthikeyan
2.A.Mohanapriya
3.K.P.Avinashi Kutty .. Respondents
Prayer in C.M.P.No.20938 of 2024 C.M.P. is filed under Section 151 of
the Code of Civil Procedure to grant leave to file the CRP against the fair
and decretal order dated 06.08.2024 in I.A.No.19 of 2024 in O.S.No.444
of 2014 on the file of the learned Additional Subordinate Judge at
Tiruppur.
https://www.mhc.tn.gov.in/judis
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C.M.P.No.20938 of 2024 in
C.R.P.(PD)SR.No.121387 of 2024
Prayer in C.R.P.(PD)SR.No.121387 of 2024: Civil Revision Petition is
filed under Article 227 of the Constitution of India, against the fair and
decretal order dated 06.08.2024 in I.A.No.19 of 2024 in O.S.No.444 of
2014 on the file of the learned Additional Subordinate Judge at Tiruppur.
For Petitioner : Mr.C.R.Prasanan
For R1 : Mr.G.Ethirajalu
ORDER
This civil revision petition challenges the order passed by the learned Additional Subordinate Judge at Tiruppur in I.A.No.19 of 2024 in O.S.No.444 of 2014 dated 06.08.2024.
2. For the purpose of disposal of this C.M.P., I need not delve deep into the facts of the case. The civil revision petitioner is the 2nd defendant in the suit. The plaintiffs are the children of the 1st defendant. The plaintiffs have initiated a suit for partition. In the said proceedings, summons was served on the 1st and the 2nd defendants. The 1st defendant received the summons, but did not file a written statement. Therefore, he was set exparte. The 2nd defendant received summons and filed a detailed https://www.mhc.tn.gov.in/judis 2/16 C.M.P.No.20938 of 2024 in C.R.P.(PD)SR.No.121387 of 2024 written statement as early as 16.06.2009 stating that he had obtained a decree in O.S.No.278 of 2000, a suit for specific performance of an agreement of sale. This decree had been passed on 12.07.2000. Having suffered the decree, the 1st defendant had encouraged the plaintiffs to present the suit.
3.On these pleadings, issues were framed and the matter went for trial. The trial was also completed with the examination of the plaintiffs and the 2nd defendant. Thereafter, the 1st defendant filed an application in I.A.No.19 of 2024 in O.S.No.444 of 2014 under Order IX Rule 7 of the Code of Civil Procedure. He pleaded that when the case was listed on 12.03.2009, on account of his illness and old age, he was not in a position to appear before the Court. He pleaded that he has valid defence in the suit and filed his written statement along with the application under Order IX Rule 7 of C.P.C. In this application, only the plaintiffs were arrayed as respondents. The civil revision petitioner/2nd defendant was not arrayed as a party. An application was filed to implead the civil revision petitioner in the Order IX Rule 7 application but it was not ordered. https://www.mhc.tn.gov.in/judis 3/16 C.M.P.No.20938 of 2024 in C.R.P.(PD)SR.No.121387 of 2024
4. The learned Trial Judge heard the arguments of the 1st defendant as well as the plaintiffs and proceeded to allow the application imposing a cost of Rs.7,500/- on the 1st defendant. The Court took into consideration that since a chance has to be given to the 1 st defendant to contest the suit and since he has filed the written statement along with an application, it came to be allowed.
5. As the learned Additional Subordinate Judge at Tiruppur felt that the written statement of the 1st defendant ought to be received, he set aside the exparte order. Hence, this revision is at the instance of the 2nd defendant.
6.As the 2nd defendant is a third party to the application, he has preferred C.M.P.No.20938 of 2024 seeking leave of this Court to prefer the revision.
7.When the matter came up on 04.10.2024, I was not inclined to grant leave exparte. I felt that there is an issue on maintainability. Hence, https://www.mhc.tn.gov.in/judis 4/16 C.M.P.No.20938 of 2024 in C.R.P.(PD)SR.No.121387 of 2024 I ordered notice to the respondents in the C.M.P. I also permitted Mr.C.R.Prasanan to serve the notice on the counsel who represents the party in the Court below. Accordingly, notice has been served.
8.Mr.G.Ethirajalu has entered appearance for the 1st respondent/1st plaintiff. Though notice has been served on Mr.S.Chandran, the learned counsel, who appears for the 3rd respondent/1st defendant, none have entered appearance. In so far as the other plaintiff is concerned, she has received summons, she has also not entered appearance. Her counsel, Mr.R.Raghupathy, was also served. Since the service has been completed, I took up the C.M.P. for disposal.
9.In order to get the benefit of granting leave to challenge an order, a person should be an “aggrieved person”. I need not labour much on this aspect as the position of law as it has been settled by a judgment of this Court in K.Ponnalagu Ammal vs. The State of Madras, AIR 1953 Madras 485. A Division Bench of this Court, headed by the Hon'ble Mr.Justice P.V.Rajamannar, held that it is not necessary that a person should be a party to the proceedings in order to challenge an order. If a https://www.mhc.tn.gov.in/judis 5/16 C.M.P.No.20938 of 2024 in C.R.P.(PD)SR.No.121387 of 2024 person is going to be affected by the order passed by a Court, he is entitled to seek for and obtain leave to file an appeal before the higher forums of law. It was also pointed out that for the mere fact, a person is a party to the proceedings, he does not have a right of appeal as against the decree, if he is not going to be affected by the decree. Keeping this principle in mind, I am approaching the facts of the present case.
10.The situation presented to me is setting aside the exparte order passed against one defendant is sought to be received by a co-defendant. There is no dispute that the plaintiffs can be treated as aggrieved persons. The question that I have to answer, is whether a co-defendant can be treated as an aggrieved person. When this position was pointed out to Mr.C.R.Prasanan, he relied upon the following judgments:
(i) Sushil Kumar Chowdhury v. Annada Prasanna Lahiri, AIR 1927 CAL 692;
(ii) Thirumangalath Nelliotan Ammu and others v.
Thirumangalath Nelliotan Govindan & another, AIR 1966 Kerala 294.
(iii) Girija H.Alias Girija Srinivasan v. Anandalakshmi, 2020 https://www.mhc.tn.gov.in/judis 6/16 C.M.P.No.20938 of 2024 in C.R.P.(PD)SR.No.121387 of 2024 AIR CC 1698 (Kerala) = AIR ONLINE 2019 KER 681;
11. Mr.C.R.Prasanan pleads that the term 'opposite party' found under Order IX Rule 14 of the Code of Civil Procedure, not only includes the plaintiff, but would also include a defendant who would be affected by an order setting aside an exparte decree. It is for this proposition, he relies upon these three authorities.
12. I feel none of these authorities would be germane for the purpose of disposal of this petition. This is because the subject matter of interpretation in those proceedings was Order IX Rule 14 of the C.P.C. and Order XLVII Rule 1 of the C.P.C. In so far as Order IX Rule 14 is concerned, the Code demands that an exparte decree must not be set aside unless and until notice is served on the opposite party. The Calcutta High Court and the Kerala High Court interpreted the word 'opposite party' would include a contesting defendant. Hence, I would refer the similarity between Order IX Rule 14 and Order IX Rule 9(2) of C.P.C.
13.In both the situations, if an exparte decree or a dismissal for https://www.mhc.tn.gov.in/judis 7/16 C.M.P.No.20938 of 2024 in C.R.P.(PD)SR.No.121387 of 2024 default is to be set aside, the Code demands that the notice should be given to the opposite party. The purpose for such notice is not too far to see. This is because the plaintiff would have served the defendant and for the lack of appearance of the plaintiff, the suit would have been dismissed for default. The defendant would have been convinced that, the lis that had been initiated as against him, has concluded and would not have taken any further steps, as there is no necessity to do so. If the suit is restored without notice to such a defendant, it will have disastrous consequences. This is because the suit, having been restored and the defendant not being aware of such restoration, would have kept himself from the Court. This would enable the plaintiff to snatch a decree behind the defendant without notice to him. That is why the Code contemplates the notice to the defendant under Order IX Rule 9(2).
14. Similarly, if an exparte decree is passed in favour of the plaintiff and there are several defendants in the said proceedings and one of the defendants seek to set aside the exparte decree, if the decree is set aside and on restoration, the other defendants do not have notice of the said proceedings, it would lead to the same result. This is because the https://www.mhc.tn.gov.in/judis 8/16 C.M.P.No.20938 of 2024 in C.R.P.(PD)SR.No.121387 of 2024 defendant, who filed an application to set aside the exparte decree, would only be interested to protect his interest as against the plaintiff's claim. He would have absolutely no issues, if the plaintiff succeeds in obtaining a decree as against the other defendants.
15. I would also have to point out that, under the first proviso that has been added to Order IX Rule 13 of the Code, if the decree is of such a nature that it cannot be set aside against one defendant alone, then the Court dealing with the application under Order IX Rule 13 is entitled to set aside the exparte decree against all the defendants.
16. Let us visualise the situation as in the present case, where the plaintiff had obtained an exparte decree as against defendants 1 & 2. If the 1st defendant alone had filed an application to set side the exparte decree without setting aside the same as against the 2nd defendant, if the suit were to proceed for trial and the suit were to be dismissed, then it would result to an incongruous situation. There will be a decree for the plaintiff as against the 2nd defendant and the suit would have stood dismissed as against the 1st defendant. No Court is entitled to pass https://www.mhc.tn.gov.in/judis 9/16 C.M.P.No.20938 of 2024 in C.R.P.(PD)SR.No.121387 of 2024 conflicting decrees in the same suit. It is for that purpose, Order IX Rule 9(2) of C.P.C. and Order IX Rule 13 first proviso and Order IX Rule 14 have been incorporated.
17. Apart from this issue, I should also note that the Parliament has not included the word “Order” in Order IX Rule 14 of C.P.C. The Code of Civil Procedure contemplates “orders” and “decrees”. An “order” is a formal expression of a Court which is not a decree. Section 2(14). A “decree” is a formal expression, which conclusively determines the rights and liabilities of parties. See Section 2(2).
18.The Parliament, in its wisdom, which was aware about the difference between a “decree” and an “order”, had carefully engrafted the word “decree” alone in Order IX Rule 14 and not included the word “order”.
19.If I were to agree with Mr.C.R.Prasanan that a co-defendant is also entitled to a notice before an exparte order is passed, then I will be judicially amending Order IX Rule 14 of the Code. I will be creating a https://www.mhc.tn.gov.in/judis 10/16 C.M.P.No.20938 of 2024 in C.R.P.(PD)SR.No.121387 of 2024 new right on a co-defendant. Such a power is not available with the Court. When the statute is clear, it is my duty to interpret it as its stand. I cannot create a new procedure, as that is, entirely within the legislative domain of the Parliament and the State legislature.
20. Under Order IX Rule 7 of the Code, it is for the defendant to convince the Court that he had a “good cause” for his non appearance. Whether the cause is good or not is for the plaintiff to come and state before the Court. The plaintiff can state that the cause, which has been trotted out by the 1st defendant, is fraudulent or not a good one. A co- defendant cannot come before the Court and plead that the reason that has been given by the other defendant is false.
21.It is here, I have to address the genuine grievance that has been raised by Mr.C.R.Prasanan. He points out that the plaintiffs are none else than the children of the 1st defendant and the stand taken by the 1st defendant is tacitly supporting the stand of the plaintiff. Mr.C.R.Prasanan asserts that the 1st defendant is colluding with the plaintiff and the application under Order IX Rule 7 has been filed only in order to ensure https://www.mhc.tn.gov.in/judis 11/16 C.M.P.No.20938 of 2024 in C.R.P.(PD)SR.No.121387 of 2024 that the 2nd defendant, who is the decree holder on account of the previous suit that had been launched by him as against the 1st defendant, is kept at bay. This is the very basis of the defence of the revision petitioner to the suit.
22. I cannot ignore the situation that the plaintiffs might be colluding with the 1st defendant. Collusion is not something unknown in litigation, neither are collusive decrees. For the mere fact that one party is colluding with the other does not mean I have to create a new right which does not exist in a party.
23.The solution is found under Section 137 of the Indian Evidence Act. Under Part 2 of Section 137, the examination of a witness by an adverse party is termed as cross-examination. The very Parliament, which made the Code, also made the Evidence Act. It was cautious to use the word “adverse party”. This implies that, even if the plaintiffs were to collude with the defendants or if the defendants inter se colluding with one another, in both the cases, the plaintiffs and the co-defendant would be an adverse party to a person, who enters the witness box to tender https://www.mhc.tn.gov.in/judis 12/16 C.M.P.No.20938 of 2024 in C.R.P.(PD)SR.No.121387 of 2024 evidence in support of his case. Let me apply this principle to the present situation.
24. The plaintiff seeks for partition and so does the 1 st defendant. The 2nd defendant pleads that by virtue of the decree of the Court in a suit for specific performance, he is entitled for dismissal of the partition suit. This implies that both the plaintiff and the 1st defendant are “adverse parties” to the 2nd defendant. Therefore, the 2nd defendant will be entitled to cross-examine the plaintiffs as well as the 1st defendant, in case they desire to tender the evidence in the suit. It is on record that the plaintiffs have already tendered evidence and they have been cross-examined. The 2nd defendant was examined in chief and has been cross-examined. All that remains to be done is the cross-examination of the 1st defendant, who has filed his written statement along with the Order IX Rule 7 application.
25. Applying Section 137 of the Indian Evidence Act to the present case, the 1st defendant shall file his proof affidavit and shall be cross-examined by the plaintiffs at the first instance. Once the https://www.mhc.tn.gov.in/judis 13/16 C.M.P.No.20938 of 2024 in C.R.P.(PD)SR.No.121387 of 2024 cross-examination by the plaintiffs is completed, the 2nd defendant will be entitled to cross-examine the 1st defendant, on all aspects including any statements that have been made by the 1st defendant during the course of the cross-examination by the plaintiffs.
26. As the suit has reached an advanced stage and has been languishing in Court for the past 20 years, I am inclined to give the following directions to the learned Additional Subordinate Judge at Tiruppur to complete the examination at the earliest:
(i). The learned Additional Subordinate Judge at Tiruppur shall commence the evidence of the 1st defendant on 06.01.2025.
(ii). The evidence of the 1st defendant including the cross-examination by the plaintiffs and the 2nd defendant should be completed by 10.01.2025.
(iii). In case the 2nd defendant feels that he wants to tender any evidence, the Court shall grant him one opportunity to do so. A similar opportunity may also be granted to the plaintiffs.
(iv). In any event, the evidence in the suit and arguments must be completed on or before 31.01.2025.
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(v). The judgment should be pronounced on or before 15.02.2025 and a report must be submitted to this Court in compliance thereof.
27. With the above observations, C.M.P. is dismissed holding a co-defendant is not entitled to maintain a revision as against the order passed under Order IX Rule 7 of C.P.C. in favour of an other defendant. Consequently, C.R.P.(PD)SR.No.121387 of 2024 is rejected.
28. Call this matter on 17.02.2025 “for compliance”.
12.12.2024 Index:Yes/No Speaking order/Non-speaking order Neutral Citation:Yes/No kj To The Additional Subordinate Judge at Tiruppur.
V. LAKSHMINARAYANAN,J.
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