Madras High Court
G.Selvam vs Kasthuri (Deceased) on 10 July, 2015
RESERVED ON : 26.06.2015
DELIVERED ON : 10.07.2015
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 10 .07.2015
CORAM
THE HONOURABLE THIRU JUSTICE M. DURAISWAMY
C.R.P.(PD)No.2984 of 2013 &
M.P.Nos. 1 of 2013, 5 of 2014 and 1 & 2 of 2015
1.G.Selvam
2.Kalavathi
3.Vasanthi
4.Suguna
5.Sumathy ... Petitioners
vs
1.Kasthuri (deceased)
2.Vanarani
3.Sumathi
4.Sudha
5.Jagan
6.Anjugam
7.Jagathish
8.Sagirakha
9.Manogari
R3 to R9 brought on record as LRs of
deceased R1 vide order of court dated
2.9.2014 made in M.P.Nos. 1 to 3/2014 in
C.R.P.(PD)No.2984 of 2013
10.Venu
R10 brought on record as LR of
deceased R1 vide order of court dated
19.11.2014 made in M.P.Nos.4/2014 in
C.R.P.(PD)No.2984 of 2013 ... Respondents
Civil Revision Petition filed under Article 227 of the Constitution of India, against the judgment and decree in O.S.No.752 of 1989 on the file of the District Munsif Court, Poonamallee, dated 28.01.1998.
For petitioner in M.P.No.1/15 :Mr.P.L. Narayanan
For petitioner in M.P.No.2/15 : Mr.G. Masilamani, SC
for Mr.K. Surendranath
For petitioner in M.P.No.1/13 : Mr.R. Muthukumarasamy,SC
for Mr.S. Mohanasundararajan
For petitioner in M.P.No.5/14 : Mrs.Hema Sampath, SC
Mr.N. Umapathi
For petitioner in CRP No.2984/13:Mr.R. Muthukumarasamy,SC
& R.1 to R.5 in M.P.No.1/15 for Mr.S. Mohanasundararajan R.1 to R.5 in M.P.No.2/15 &
R.1 to R.5 in M.P.No.5/14
1st respondent : Died
For respondents 2 to 9 in : Mr.S. Parthasarathy, SC for
C.R.P & R.6 to R.15 in Mr.N.R. Anantha Ramakrishnan
M.P.No.1/15 & R.6 to
R.15 in M.P.No.2/15
R.10 in C.R.P. : Mr.R. Munusamy
C O M M O N O R D E R
Challenging the preliminary decree passed in O.S.No.752 of 1989 on the file of District Munsif Court, Poonamallee, the legal representatives of the deceased 18th defendant have filed the above Civil Revision Petition. The respondents 1 and 2 are the legal representatives of the deceased plaintiff Balaraman. The 1st respondent Kasthuri died pending the above Civil Revision Petition and her legal representatives were brought on record as respondents 3 to 10.
2. The plaintiff filed the suit in in O.S.No.752 of 1989 on the file of District Munsif Court, Poonamallee, to pass a preliminary decree and to allot 1/9th share to him and for separate possession. The defendants were made ex-parte in the suit. The Trial Court passed an ex parte preliminary decree on 28.01.1998 allotting 1/9th share to the plaintiff. The said suit was filed as against 24 defendants and all the defendants were set ex parte and a preliminary decree was passed. Pursuant to the preliminary decree passed in O.S.No.752 of 1989, the plaintiff filed a final decree application in I.A.No.742 of 1999. During the pendency of the final decree application, the sole plaintiff died on 28.01.2007. The respondents 10 to 31 in the final decree application remained ex-parte and without impleading the legal representatives of the deceased sole plaintiff, the Trial Court passed the final decree on 25.04.2007. Further, in the final decree application, the Trial Court had not mentioned about the respondents 5 to 15 and the service of notice to the respondents was not completed.
3. Aggrieved over the passing of final decree in I.A.No.742 of 1999, the legal representatives of the deceased 18th defendant preferred appeal in A.S.No.13 of 2009 on the file of Sub Court, Poonamallee and the Lower Appellate Court dismissed the appeal finding that the death of the sole plaintiff will not abate the proceedings.
4. Aggrieved over the judgment and decree passed in A.S.No.31 of 2007, the legal representatives of the deceased 18th defendant preferred a Second appeal in S.A.No.266 of 2011 and this Court, by judgment dated 2.4.2014 set aside the judgment and decree passed in A.S.No.31 of 2007 and the judgment and decree made in I.A.No.742 of 1999 in O.S.No.752 of 1989 and allowed the Second Appeal and remanded the matter back to the District Munsif Court, Poonamallee for fresh disposal after impleading the legal representatives of the deceased parties.
5. In the present Civil Revision Petition, which was filed on 2.8.2011, the legal representatives of the 18th defendant have challenged the preliminary decree passed in O.S.No.752 of 1989.
6. Heard Mr.R.Muthukumarasamy, learned Senior Counsel appearing for the petitioners and Mr.S.Parthasarathy learned Senior Counsel appearing for the respondents 2 to 9.
7. The main contention raised by Mr.R.Muthukumarasamy, learned Senior Counsel appearing for the petitioner is that the judgment and decree passed by the Trial Court is liable to be set aside on the ground that the Trial Court had passed a preliminary decree by non-speaking judgment. The learned Senior Counsel further submitted that the judgment passed by the Trial Court is against the settled propositions of the Hon'ble Apex Court as well as this court. The learned Senior Counsel further contended that since the judgment and decree passed by the Trial Court is against the provisions of Order 20 Rule 5 of C.P.C., and also the ratios laid down by the Hon'ble Supreme Court and this court, the Civil Revision Petition filed under Article 227 of the Constitution of India challenging the said judgment and decree is maintainable. In support of his contention, learned Senior Counsel relied upon the following judgments:-
(i) 2003 (6) SCC 675 (Surya Dev Rai v. Ram Chander Rai), wherein in paragraph No.38, the Hon'ble Supreme Court held as follows:-
38. Such like matters frequently arise before the High Courts. We sum up our conclusions in a nutshell, even at the risk of repetition and state the same as hereunder:
(1) Amendment by Act 46 of 1999 with effect from 1-7-2002 in Section 115 of the Code of Civil Procedure cannot and does not affect in any manner the jurisdiction of the High Court under Articles 226 and 227 of the Constitution.
(2) Interlocutory orders, passed by the courts subordinate to the High Court, against which remedy of revision has been excluded by CPC Amendment Act 46 of 1999 are nevertheless open to challenge in, and continue to be subject to, certiorari and supervisory jurisdiction of the High Court.
(3) Certiorari, under Article 226 of the Constitution, is issued for correcting gross errors of jurisdiction i.e. when a subordinate court is found to have acted (i) without jurisdiction by assuming jurisdiction where there exists none, or (ii) in excess of its jurisdiction by overstepping or crossing the limits of jurisdiction, or (iii) acting in flagrant disregard of law or the rules of procedure or acting in violation of principles of natural justice where there is no procedure specified, and thereby occasioning failure of justice.
(4) Supervisory jurisdiction under Article 227 of the Constitution is exercised for keeping the subordinate courts within the bounds of their jurisdiction. When a subordinate court has assumed a jurisdiction which it does not have or has failed to exercise a jurisdiction which it does have or the jurisdiction though available is being exercised by the court in a manner not permitted by law and failure of justice or grave injustice has occasioned thereby, the High Court may step in to exercise its supervisory jurisdiction.
(5) Be it a writ of certiorari or the exercise of supervisory jurisdiction, none is available to correct mere errors of fact or of law unless the following requirements are satisfied: (i) the error is manifest and apparent on the face of the proceedings such as when it is based on clear ignorance or utter disregard of the provisions of law, and (ii) a grave injustice or gross failure of justice has occasioned thereby.
(6) A patent error is an error which is self-evident i.e. which can be perceived or demonstrated without involving into any lengthy or complicated argument or a long-drawn process of reasoning. Where two inferences are reasonably possible and the subordinate court has chosen to take one view, the error cannot be called gross or patent.
(7) The power to issue a writ of certiorari and the supervisory jurisdiction are to be exercised sparingly and only in appropriate cases where the judicial conscience of the High Court dictates it to act lest a gross failure of justice or grave injustice should occasion. Care, caution and circumspection need to be exercised, when any of the above said two jurisdictions is sought to be invoked during the pendency of any suit or proceedings in a subordinate court and the error though calling for correction is yet capable of being corrected at the conclusion of the proceedings in an appeal or revision preferred thereagainst and entertaining a petition invoking certiorari or supervisory jurisdiction of the High Court would obstruct the smooth flow and/or early disposal of the suit or proceedings. The High Court may feel inclined to intervene where the error is such, as, if not corrected at that very moment, may become incapable of correction at a later stage and refusal to intervene would result in travesty of justice or where such refusal itself would result in prolonging of the lis.
(8) The High Court in exercise of certiorari or supervisory jurisdiction will not convert itself into a court of appeal and indulge in re appreciation or evaluation of evidence or correct errors in drawing inferences or correct errors of mere formal or technical character.
(9) In practice, the parameters for exercising jurisdiction to issue a writ of certiorari and those calling for exercise of supervisory jurisdiction are almost similar and the width of jurisdiction exercised by the High Courts in India unlike English courts has almost obliterated the distinction between the two jurisdictions. While exercising jurisdiction to issue a writ of certiorari, the High Court may annul or set aside the act, order or proceedings of the subordinate courts but cannot substitute its own decision in place thereof. In exercise of supervisory jurisdiction the High Court may not only give suitable directions so as to guide the subordinate court as to the manner in which it would act or proceed thereafter or afresh, the High Court may in appropriate cases itself make an order in supersession or substitution of the order of the subordinate court as the court should have made in the facts and circumstances of the case.
(ii) 2013 (2) CTC 388 (N.Maheswari vs Mariappan), wherein in paragraph No.12, this Court held as follows:-
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.
(iii) 2014(2) SCC 465, (Shivshankar Gurgar v. Dilip) wherein in paragraph No.14, the Hon'ble Supreme Court held as follows:-
14. It is well settled that such a void order can create neither legal rights nor obligations. Therefore, the appellant cannot be denied his right to recover possession of the property in dispute on the ground that he did not choose to challenge such a void order.
(iv) 1969 (1) SCC 709 (Swaran Lata Ghosh v. H.K. Banerjee) wherein in paragraph No.13, the Hon'ble Supreme Court held as follows:-
13. We are, therefore, constrained to come to the conclusion that there has been no real trial of the defendants case. It is a very unfortunate state of affairs that eighteen years after the date on which the suit was instituted, we have to remand the suit for trial according to law. But we see no other satisfactory alternative.
(v) 2011(3) LW 80 (M/s Meenakshisundaram Textiles v. M/s Valliammal Textiles Ltd.,) wherein in paragraph Nos.10, 11, 12 and 20, the Division Bench of this Court held as follows:-
10. In M/s. Meditronics Corporation of India & Ors. v. Dr. Mrs. Salima A. Rais (AIR 2007 (NOC) 735)(Bom.), Division Bench of the Bombay High Court observed that irrespective of the fact that the defendant has not filed written statement or he remained ex-parte, the Court has to write a judgment which must be in conformity with the provisions of the Code of Civil Procedure.
11. In State of T.N. v. S. Thangavel, (1997) 2 SCC 349, the Supreme Court observed that the judgment denotes the reasons which the Court gives for its decision. The observation reads thus:
"6. .......A judgment means a statement given by a Judge of the grounds of a decree or order. Section 2(8) defines Judge to mean the presiding officer of a civil court. An officer, therefore, is appointed to preside and to administer the law in a court of justice and clothed with judicial authority. Judgment is the decision of a court of justice upon the respective rights and claims of the parties to an action in a suit submitted to it for determination. The word judgment denotes the reasons which the court gives for its decision."
12. The Supreme Court in Ramesh Chand Ardawatiya v. Anil Panjwani, AIR 2003 SC 2508, while considering the provisions of Order IX Rule 6 and Order VIII Rule 10 of the Code of Civil Procedure, observed that even if the suit proceeds ex-parte under Order IX Rule 6, the necessity of proof by the plaintiff of its case cannot be dispensed with. Their Lordships observed as under:-
"33....But there is substance in the other limb of this submission made by the learned senior counsel for the defendant-appellant. Even if the suit proceeds ex-parte and in the absence of a written statement, unless the applicability of Order VIII Rule 10 of the CPC is attracted and the Court acts thereunder, the necessity of proof by the plaintiff of his case to the satisfaction of the Court cannot be dispensed with. In the absence of denial of plaint averments the burden of proof on the plaintiff is not very heavy. A prima facie proof of the relevant facts constituting the cause of action would suffice and the Court would grant the plaintiff such relief as to which he may in law be found entitled. In a case which has proceeded ex-parte the Court is not bound to frame issues under Order XIV and deliver the judgment on every issue as required by Order XX Rule 5. Yet the trial Court would scrutinise the available pleadings and documents, consider the evidence adduced, and would do well to frame the 'point for determination' and proceed to construct the ex-parte judgment dealing with the points at issue one by one. Merely because the defendant is absent the Court shall not admit evidence the admissibility whereof is excluded by law nor permit its decision being influenced by irrelevant or inadmissible evidence."
20. It is also relevant to point out that under Section 96(2) of the Code of Civil Procedure, an appeal may lie from an original decree passed ex-parte. Two remedies are available to an aggrieved person to question the ex-parte decree. One is that he may file an application to set aside the ex-parte decree as provided under Order IX Rule 13 of Code of Civil Procedure. In such event, the Court which passed the judgment and decree will have to consider the reasons for setting aside such judgment and decree, which may be more or less the explanation as to the failure of non-appearance. The other remedy is that he may prefer an appeal under Section 96(2) and in such event, the appellate Court should necessarily go into the merits and find out whether the decree could be set aside or not. In case an appeal is laid, in the absence of reasons in the judgment, the appellate Court has to necessarily remand the case to the trial Court for fresh consideration. For that reason, the judgment should contain the reasons and should be in conformity with the provisions of Section 2(9) read with Order XX Rule 4 of the Code of Civil Procedure.
(vi) 2012 (5) SCC 265 (C.N. Ramappa Gowda v. C.C. Chandregowda,) wherein in paragraph Nos.28, 29 and 30, the Hon'ble Supreme Court held as follows:-
28. When we examined the instant matter on the anvil of what has been stated above, we have noticed that the trial court has decreed the suit without assigning any reason how the plaintiff is entitled for half-share in the property. The same is absolutely cryptic in nature wherein the trial court has not critically examined as to how the affidavit filed by the plaintiff in support of his plea of jointness of the family was proved on relying upon Exts. P-1 to P-10 without even discussing the nature of the document indicating that the suit property was a joint property. Exts. P-1 to P-10 are the preliminary records viz. atlas, tipni book, R.R. pakka book, settlement akarband, sale deeds, etc. The trial court although relied upon these documents, it has not elaborated critically as to why these documents have been believed without indicating as to how it proves the plea that the property always remained joint in nature and had never been partitioned between the parties. Even if the trial court relied upon these documents to infer that the property was joint in nature, it failed to record any reason as to whether the property was never partitioned among the coparceners.
29. It is a well-acknowledged legal dictum that assertion is no proof and hence, the burden lay on the plaintiff to prove that the property had not been partitioned in the past even if there was no written statement to the contrary or any evidence of rebuttal. The trial court in our view clearly adopted an erroneous approach by inferring that merely because there was no evidence of denial or rebuttal, the plaintiffs case could be held to have been proved. The trial court, therefore, while accepting the plea of the appellant-plaintiff ought to have recorded reasons even if it were based on ex-parte evidence that the plaintiff had succeeded in proving the jointness of the suit property on the basis of which a decree of partition could be passed in his favour.
30. As a consequence of the aforesaid analysis and the reasons recorded hereinabove, we are of the view that the High Court was legally justified in setting aside the judgment and decree of the trial court and allowing the appeal to the limited extent of remanding the matter to the trial court for a de novo trial after permitting the respondent-defendant to file the written statement. The appeal consequently stands dismissed. However, we are conscious of the fact that the appellant-plaintiff for no fault on his part has been forced to entangle himself in the appeal before the High Court as the respondent giving rise to an appeal before this Court, although the respondent-defendant had leisurely failed to file the written statement in spite of numerous opportunities to file the same and also had failed to cross-examine the plaintiff witnesses, but once the decree for partition of half-share was passed in favour of the appellant-plaintiff, the respondent-defendant promptly challenged the same by filing an appeal before the High Court.
(vii) 2013 (4) SCC 396 (Shantilal Gulabchand Mutha v. Tata Engg. & Locomotive Co. Ltd.) wherein in paragraph Nos.8 and 9, the Hon'ble Supreme Court held as follows:-
8. In Bogidhola Tea & Trading Co. Ltd. v. Hira Lal Somani this Court while reiterating a similar view observed that a decree under Order 8 Rule 10 CPC should not be passed unless the averments made in the plaint are established. In the facts and circumstances of a case, the court must decide the issue of limitation also, if so, involved. (See also Ramesh Chand Ardawatiya v. Anil Panjwani6.)
9. In view of the above, it appears to be a settled legal proposition that the relief under Order 8 Rule 10 CPC is discretionary, and court has to be more cautious while exercising such power where the defendant fails to file the written statement. Even in such circumstances, the court must be satisfied that there is no fact which needs to be proved in spite of deemed admission by the defendant, and the court must give reasons for passing such judgment, however, short it be, but by reading the judgment, a party must understand what were the facts and circumstances on the basis of which the court must proceed, and under what reasoning the suit has been decreed.
8. Countering the submission made by the learned Senior Counsel appearing for the petitioner, Mr.S.Parthasarathy learned Senior Counsel appearing for the respondents 2 to 9 submitted that the revision filed by the petitioner challenging the judgment and decree passed in O.S.No. 752 of 1989 is not maintainable for the reason that appeal remedy is available to the petitioner for challenging the preliminary decree passed in the suit. The learned Senior Counsel further submitted that since appeal remedy is available to the petitioner, the Civil Revision Petition is liable to be dismissed. Further, the learned Senior Counsel submitted that the ex-parte preliminary decree dated 28.1.1998 passed in the suit could not be set aside after a lapse of nearly 17 years. In support of his contention, learned Senior Counsel relied upon the following judgments:-
(i) 2006 (9) SCC 252 (State Bank of India v. Allied Chemical Laboratories) wherein in paragraph Nos. 6 and 7, the Hon'ble Supreme Court held as follows:-
6. We have heard counsel for the parties. We fail to understand how the High Court could have exercised its jurisdiction under Articles 226 and 227 of the Constitution to set aside a decree/final order passed by the DRT on 9-4-2003, in a collateral proceeding wherein the decree/final order was challenged indirectly on the ground that the application of the respondent for cross-examining the deponent had earlier been wrongly rejected. We have no hesitation in holding that when the DRT did not accede to the request of the respondent to cross-examine the deponent, it could have, in the appeal preferred by it, assailed the decree/final order on that ground and the Appellate Authority would have passed appropriate orders. The mere fact that the respondent had not been given an opportunity to cross-examine the deponent did not enable the respondent to bypass the provision for appeal and approach the High Court directly by a writ petition under Articles 226 and 227 of the Constitution, challenging the decree/final order on the ground that the order earlier passed, refusing to permit the cross-examination of the deponent, was erroneous.
7. In the facts and circumstances of this case, we hold that the respondent ought to have availed the remedy provided under Section 20 of the Act and preferred an appeal before the Appellate Tribunal wherein he could have urged all his grievances and challenged the decree/final order passed by the DRT. The order passed by the High Court in exercise of writ jurisdiction is wholly unjustified and it is accordingly set aside.
(ii) AIR 1976 SC 2446 (Maneck Gustedji Burjarji v. Sarafazali Nawabali Mirza ) (1977) 1 SCC 227, wherein in paragraph No.6, the Hon'ble Supreme Court held as follows:-
6. It is very difficult to appreciate the reasoning behind the order made by the High Court. It is to say the least an extraordinary order which flies in the face of law and judicial procedure. The respondent had clearly a legal remedy available to him by way of an appeal against the decree of the City Civil Court and this remedy was not only adequate but more comprehensive than the one under Article 227 of the Constitution. Even so, for some inexplicable reason, the respondent chose to prefer a special civil application under Article 227 of the Constitution and Vaidya, J., entertained the special civil application and granted relief to the respondent, casting to the winds the well settled principle that the High Court does not ordinarily, in exercise of its discretion, entertain a special civil application under Article 227 of the Constitution where an adequate alternative legal remedy is available to the applicant. It is true that this principle is not rigid and inflexible and there can be extraordinary circumstances where, despite the existence of an alternative legal remedy, the High Court may interfere in favour of an applicant, but this was certainly not one of such extraordinary cases. It is indeed difficult to see how the learned Judge could entertain a special civil application against a decree passed by a subordinate court when the procedural law allows an appeal against it and that appeal lies to the High Court itself. It must be realised that the jurisdiction under Article 227 of the Constitution is an extraordinary jurisdiction which is to be exercised sparingly and in appropriate cases and it is not to be exercised as if it were an appellate jurisdiction or as if it gave unfettered and unrestricted power to the High Court to do whatever it liked. That apart, it is interesting to note that the order passed by the learned Judge was not an interlocutory order but a final order disposing of the special civil application and by that order the learned Judge did not set aside the decree passed by the City Civil Court, but merely directed stay of its execution pending the disposal of the Small Causes Court suit. It defies ones comprehension as to how such an order could be made by the learned Judge. It is also difficult to see how the learned Judge could give a direction that the decision of the City Civil Court on the issue whether the respondent was a paying guest would not bind the parties in the adjudication of the Small Causes Court suit. The question whether the parties in the Small Causes Court suit would be bound by the decision of the City Civil Court would be a question which would arise for determination in the Small Causes Court suit and the Small Causes Court would have to determine it in deciding the suit before it. If the decision of the Small Causes Court is erroneous, the aggrieved party would have a right to file an appeal against it and the appellate court would then consider this question and adjudicate upon it. But we fail to understand how the learned Judge could, without any decision having been given by the Small Causes Court and such decision having been brought up before him in appeal or revision, enter upon a consideration of this question and pronounce upon it. The order passed by the learned Judge was clearly erroneous and it must be quashed and set aside and the special civil application must be dismissed. We may make it clear that whenever the Small Causes Court hears the suit before it, it will not take into account any observations made by the learned Judge in the impugned judgment in regard to the question whether the decision of the City Civil Court is binding or not and it will proceed to decide the suit before it in the light of what it considers to be the correct legal position.
(iii) AIR 2003 SC 1561 (Sadhana Lodh v. National Insurance Co. Ltd.,) wherein in paragraph No.7, the Hon'ble Supreme Court held as follows:-
7. The supervisory jurisdiction conferred on the High Courts under Article 227 of the Constitution is confined only to see whether an inferior court or tribunal has proceeded within its parameters and not to correct an error apparent on the face of the record, much less of an error of law. In exercising the supervisory power under Article 227 of the Constitution, the High Court does not act as an appellate court or the tribunal. It is also not permissible to a High Court on a petition filed under Article 227 of the Constitution to review or reweigh the evidence upon which the inferior court or tribunal purports to have passed the order or to correct errors of law in the decision.
(iv) 2003 SC 2736 ( Seth Chand Ratan v. Pandit Durga Prasad) wherein in paragraph No.13, the Hon'ble Supreme Court held as follows:-
13. Even otherwise, the view taken by the Division Bench of the High Court for repelling the objection of the appellant regarding the maintainability of the writ petition that an alternative remedy does not divest the High Court of its powers to entertain petitions under Articles 226 and 227 of the Constitution, has hardly any application on the facts of the present case. It has been settled by a long catena of decisions that when a right or liability is created by a statute, which itself prescribes the remedy or procedure for enforcing the right or liability, resort must be had to that particular statutory remedy before seeking the discretionary remedy under Article 226 of the Constitution. This rule of exhaustion of statutory remedies is no doubt a rule of policy, convenience and discretion and the court may in exceptional cases issue a discretionary writ of certiorari. Where there is complete lack of jurisdiction for the officer or authority or tribunal to take action or there has been a contravention of fundamental rights or there has been a violation of rules of natural justice or where the Tribunal acted under a provision of law, which is ultra vires, then notwithstanding the existence of an alternative remedy, the High Court can exercise its jurisdiction to grant relief. In the present case, the alternative remedy of challenging the judgment of the court was not before some other forum or tribunal. On the contrary, by virtue of sub-section (3) of Section 27 of the Act, the order passed by the court amounted to a decree against which an appeal lay to the High Court. When the party had statutory remedy of assailing the order passed by the District Court by filing an appeal to the High Court itself, he could not bypass the said remedy and take recourse to proceedings under Articles 226 and 227 of the Constitution. Such a course of action may enable a litigant to defeat the provisions of the statute which may provide for certain conditions for filing the appeal, like limitation, payment of court fee or deposit of some amount or fulfillment of some other conditions for entertaining the appeal.
(v) 2007 (2) SCC 275 (Ajay Bansal v. Anup Mehta) wherein in paragraph Nos.13 and 18 , the Hon'ble Supreme Court held as follows:-
13. Ordinarily, an application under Article 227 of the Constitution of India would not be maintainable where an appeal lies. An appeal lay from the decree under Section 96 of the Code. When an appeal could be filed, ordinarily, an application under Article 227 of the Constitution of India would not be entertained.
18. In the aforementioned situation, we are of the opinion that interest of justice would be met if we direct the writ petition to be converted into a first appeal. The respondents may file certified copy of the judgment and decree. Deficit court fee, if any, should also be paid by the respondents. Filing of such certified copy and deposit of court fee, if any, must be completed within eight weeks from date. Indisputably, it would be open to the appellant to raise the contention that it was a fit case where the learned Civil Judge could have granted leave to defend the suit. All the contentions of the parties shall, however, remain open.
(vi) AIR 1954 Patna 476 (Ajit Kumar Chakravarty vs Sm. Sarba Mangala Devi And Anr.) wherein in paragraph No.2, the Patna High Court held as follows:-
2. .... It is clear upon these facts that the petitioner| has availed himself of the alternative remedy by way of a suit, and this application for a writ under Article 226 of the Constitution or for interference by the High Court under Article 227 of the Constitution cannot be obviously entertained. The question at issue in the civil suit is essentially the question of jurisdiction of the House Controller and of the Commissioner of Chotanagpore in appeal. The question raised in this application involves precisely the same matter as to the jurisdiction of the House Controller to order eviction of the petitioner under the provisions of Section 11 of the Act. In these circumstances it is obvious that this application cannot be entertained and the petitioner must prosecute his-remedy in the Court of the Munsif of Giridih where he has already instituted a suit for precisely the same relief.M.P.No.5 of 2014
9. The third party petitioners filed M.P.No.5 of 2014 in the above Civil Revision Petition for impleading them as respondents 16 and 17. According to the third party petitioners, they have purchased an extent of 97.5 cents on 25.11.2011 from Kasthuri, the deceased 1st respondent and Vanarani, the 2nd respondent in the Civil Revision Petition. According to them, after the disposal of the appeal in A.S.No.31 of 2007 on 30.09.2009, they are bona fide purchasers for value without notice. Further, the petitioners have stated that they were not aware of the filing of the Second Appeal in S.A.No.266 of 2011 and one of their vendor, viz., Kasthuri, the 1st respondent had passed away subsequent to their purchase. Therefore, to protect the interest in the property, according to them, they are proper and necessary parties to the Civil Revision Petition. Further, they have stated that the original sharers are not arrayed as parties before this court and that the parties had deliberately left out the original sharers even in the First Appeal. Further, they have stated that they apprehend that their rights would be jeopardized unless they are impleaded and permitted to sustain the sale in their favour.
10. The Civil Revision Petitioners contended that in the sale agreement dated 10.02.2011 the pendency of the case was subsequently mentioned and if there is any violation to deliver physical possession, the respondents 1 and 2 viz., Kasthuri and Vanarani undertook to return the advance amount and further sale advance with interest at the rate of 12% per annum from the date of payment. Further, they have also stated that in the sale deed dated 25.11.2011, the pendency of the cases were mentioned and it was also mentioned that the vendors shall keep the purchasers indemnified against any defect in the title on the part of the vendors. Further, the petitioners have stated that as per the endorsement made in the agreement, the total amount received as on 17.3.2011 was Rs.1,50,00,000/- and it was mentioned that on receipt of these amounts, the third party petitioners were discharged from payment of any further amount even though the sale consideration was Rs.2,55,00,000/-. Therefore, according to the revision petitioners, the sale transaction is not a bona fide one and the transaction took place knowing fully well about the pendency of the proceedings and without obtaining permission from the court.
11. Mrs.Hema Sampath, learned Senior Counsel, appearing for the third party petitioners in M.P.No.5 of 2014 submitted that the petitioners are apprehending that their vendor viz., the plaintiff would not contest the Civil Revisin Petition and that, the plaintiff may not protect their right and interest in the properties, purchased by them. Further, the learned Senior Counsel submitted that the petitioners are proper and necessary parties for the reason that they purchased the property on 25.11.2011 from Kasturi (who had died subsequently) and Vanarani. Further, the learned Senior Counsel submitted that the letter, written by the Power Agent of the legal representatives of the plaintiff dated 22.9.2013, would establish that the legal representatives of the plaintiff are working against their interest. Further, the learned Senior Counsel submitted that the Civil Revision Petition filed under Article 227 of the Constitution of India, challenging the preliminary decree, passed in the suit, is not maintainable, when specific provision under Sec.96 of the Civil Procedure Code is available to the petitioners. In support of her contention, the learned Senior Counsel relied on the following Judgments:
(i) 2014 (4) CTC 814 (V.L. Dhandapani and others vs Revathy Ramachandran and others), wherein, the Division Bench of this Court held that the transfer pendente lite can be impleaded as party to the suit and the question as to whether such party is entitled to be impleaded will have to be decided from the facts of the case.
(ii) 2013 (5) SCC 397 (Thomson Press (India) Ltd vs Nanak Builders and Investors Pvt Ltd and others), wherein the Hon'ble Supreme Court held that the transferee/purchaser and pendente lite may be impleaded in a pending suit for specific performance of prior agreement to sell/contract for sale filed by the buyer against the original owner.
(iii) 2007 (2) SCC 275 (Ajay Bansal vs Anup Mehta and Others), wherein the Apex Court has held as follows:
13. Ordinarily, an application under Article 227 of the Constitution of India would not be maintainable where an appeal lies. An appeal lay from the decree under Section 96 of the Code. When an appeal could be filed, ordinarily, an application under Article 227 of the Constitution of India would not be entertained.
18. In the aforementioned situation, we are of the opinion that interest of justice would be met if we direct the writ petition to be converted into a first appeal. The respondents may file certified copy of the judgment and decree. Deficit court fee, if any, should also be paid by the respondents. Filing of such certified copy and deposit of court fee, if any, must be completed within eight weeks from date. Indisputably, it would be open to the appellant to raise the contention that it was a fit case where the learned Civil Judge could have granted leave to defend the suit. All the contentions of the parties shall, however, remain open.
(iv) 2003 (2) CTC 122 (Sadhana Lodh vs National Insurance Company Ltd and another), wherein, the Hon'ble Supreme Court held as follows:
6. The right of appeal is a staturoy right and where the law provides remedy by filing an appeal on limited gruonds, the grounds of challenge cannot be enlarged by filing a petition under Article 226/227 of the Constitution on the premise that the insurer has limited grounds available for challenging the award given by the Tribunal. Section 149(2) of the Act limits the insurer to file an appeal on those enumerated grounds and the appeal being a product of the statute it is not open to an insurer to take any plea other than those provided under Section 149(2) of the Act (see National Insurance Co Ltd., Chandigarh vs Nicolletta Rohtagi and others, 2002(7) SCC 456. This being the legal position, the petition filed under Article 227 of the Constitution by the insurer was wholly misconceived. Where a statutory right to file an appeal has been provided for, it is not oopen to High Court to entertain a petition under Article 227 of the Constitution. Even if where a remedy by way of an appeal has not been provided for against the order and judgment of a District Judge, the remedy available to the aggrieved person is to file a revision before the High Court under Section 115 of the Code of Civil Procedure. Where remedy for filing a revision before the High Court under Section 115 of CPC has been expressly barred by a State enactment, only in such case a petition under Article 227 of the Constitution would lie and not under Article 226 of the Constitution. As a matter of an illustration, where a trial Court in a civil suit refused to grant temporary injunction and an appeal against refusal to grant injunction has been rejected, and a State enactment has barred the remedy of filing revision under Section 115, CPC in such a situation a writ petition under Article 227 would lie and not under Article 226 of the Constitution. Thus, where the State legislature has barred a remedy of filing a revision petition before the High Court under Section 155, C.P.C., no petition under Article 226 of the Constitution would lie for the reason that a mere wrong decision without anything more is not enough to attract jurisdiction of High Court under Article 226 of the Constitution.
7. The supervisory jurisdiction conferred on the High Courts under Article 227 of the Constitution is confined only to see whether an inferior Court or Tribunal has proceeded within its parameters and not to correct an error apparent on the face of the record, much less of an error law. In exercising the supervisory power under Article 227 of the Constitution, the High Court does not act as an Appellate Court or the Tribunal. It is also not permissible to a High Court on a petition filed under Article 227 of the Constitution to review or re-weigh the evidence upon which the inferior Court or Tribunal purports to have passed the order or to correct errors of law in the decision.
(v) AIR 1984 SC 38 (Mohd.Yunus vs Mohd.Mustaquim and others), wherein, the Apex Court held as follows:
The petition under Art.227 was wholly misconceived. The supervisory jurisdiction conferred on the High Courts under Art.227 of the Constitution is limited to seeing that an inferior Court or Tribunal functions within the limits of its authority, and not to correct an error apparent on the face of the record, much less an error of law. In the instant case, there was no error of law or eerror apparent on the face of the record. From an order under Or.XX!, r.92, an appeal lay to the District Judge. That part, the petitioner's application raised a question relatiing to execution which fell within the purview of Section 47 Code of Civil Procedure which prior to February 1, 1977 was appealable because then a decision under sectioni 47 was deemed to be a decree under section 2(2) of the Code. Therefore, the petitioner had the remedy of appeal to the District Judge: Even if no appeal lay against the impugned orders of the Subordiniate Judge, the petitioiner had the remedy of filing a revision before the High Court under Section 115 of the Code. Upon any view of the matter the High Court under Art.227 of the Constitution had no jurisdiction to interfere with the impugned orders passed by the Subordinate Judge. A mere wrong decision without anything more is not enough to attract the jurisdiction of the High Court under Article 227.
(v) 2003 (10) SCC 282 (Mercantile Industrial Development Co (P) Ltd vs Wahid Chauhan), wherein, the Apex Court held as follows:
2. A suit was filed in 1983 for the recovery of the suit premises. The said suit was decreed in the plaintiffs favour in 1985 in an execution proceeding in which objections were filed by the respondent. One of the objections was whether the decree which had been passed on 7-9-1985 was a nullity. Issue in this regard and other issues were framed on 13-1-1988. We are informed that for a period of nearly ten years no evidence was recorded. On 26-3-1998, an application was filed by the respondent to the effect that Issue 2 relating to the contention that the decree was a nullity and non-executable should be tried as a preliminary issue. The Small Cause Court rejected this application and this was affirmed by the Appellate Bench of the Small Cause Court. The High Court, however, in a writ petition, which was filed, has reversed this decision and has directed Issue 2 to be tried as a preliminary issue.
3. We find that the order of the High Court is not correct. First of all, it appears to us that the exercise of moving this application for treating Issue 2 as a preliminary issue is clearly mala fide and has been done so with a view to prolong the litigation. This application was filed after ten years of the issues being framed. The only desire can be to somehow or the other prolong the dispute. Furthermore, with two courts having rejected the prayer for framing the preliminary issue the High Court was not correctly advised to exercise its writ jurisdiction and set aside the said orders. There was no error of jurisdiction exercised by the courts below and in any event the issue in question cannot be decided without recording evidence. It was not a pure issue of law which may have been regarded as a preliminary issue.
12. Mr.R. Muthukumarasamy, learned Senior Counsel appearing for the Revision Petitoners submitted that the petitioners in M.P.No.5 of 2014 are not proper and necessary parties for the reason that they have purchased the property in the year 2011 i.e., after the passing of the preliminary decree and the Final Decree in the year 2011. Further, the learned Senior Counsel contended that the interest of the proposed parties are taken care by the legal representatives of the plaintiff. Therefore, the proposed parties are not necessary parties in the Civil Revision Petiton.
M.P.No.1 of 2015:
13. The petition in M.P.No.1 of 2015 has been filed by one F.Sheik Ameerudin to get himself impleaded in the Civil Revision Petition as the sixth petitioner. The brief case of the proposed party is as follows:
14. It is the case of the petitioner that he is the purchaser of the land, measuring 1 acre 89 cents, comprised in Survey No.70/2 and 49 cents comprised in Survey No.68/6 in Seneerkuppam Village, Poonamallee Taluk, Thiruvallur District in the court auction sale, held on 11.03.1987 in E.P.No.572 of 1972 in O.S.No.4796 of 1971 on the file of District Munsif Court, Poonamallee.
15. According to the petitioner, the sale certificate was issued on 19.03.1990. The land, covered in Survey No.70/2, was subsequently subdivided into No.70/2A, measuring about 51 cents and as 70/2B, measuring about 1.38 acres. While so, one Balaraman filed a suit for partition in O.S.No.752 of 1989 on the file of District Munsif Court, Poonamallee, in respect of various extent of lands, including the land purchased by the petitioner in Survey No.68/6 and 70/2A, without impleading him as a party in the suit.
16. According to the petitioner, the suit was filed playing fraud upon the Court. The plaintiff has no right, title or interest over the entire suit property, including the portion of the property, purchased by him. Further, according to the petitioner, the preliminary decree passed in the suit is on the face of it bad for the reason that it has been passed against the dead person viz., the 17th defendant, who alone demurred against the passing of the decree. The 17th defendant died even prior to the passing of the preliminary decree. The judgment and decree passed by the trial court is against the provisions of the Civil Procedure Code.
17. The brief case of the respondents 7 to 15 are as follows:
According to the respondents, the 17th defendant remained exparte in the year 1997 and the preliminary decree was passed on 28.1.1998. Further, according to the respondents, once the 17th defendant remained exparte, there is no necessity to bring on record the legal representatives. In the Final Decree application, the legal representatives of the deceased 17th defendant were impleaded as respondents. In the year 2003, the legal heirs of the 17th defendant filed a petition to condone the delay of more than 1500 days in filing a petition to set aside the exparte decree dated 28.1.1998. The application was dismissed by the trial court in the year 2005.M.P.No.2 of 2015
18. M.P.No.2 of 2015: The petition in M.P.No.2 of 2015 has been filed one M. Ramu, S/o of the deceased 17th defendant to get himself impleaded as 11th respondent in the Civil Revision Petition. The brief case of the petitioner is as follows:
19. According to the petitioner, he is the son of the 17th defendant, who had died on 22.12.1995. The preliminary decree was passed on 28.1.1998 i.e., more than two years after the death of the 17th defendant. Further, the petitioner has stated that the suit in O.S.No.752 of 1989 had abated on the death of the 17th defendant. The legal representatives of the deceased 17th defendant were not brought on record, prior to the passing of the preliminary decree. The 17th defendant died on 22.12.1995, leaving behind his wife, three sons and three daughters, as his legal heirs. In the Final Decree application, the legal representatives of the 17th defendant were impleaded as respondents 25 to 31 on 19.1.2001. Further, the petitioner has stated that the 17th defendant was set exparte on two occasions, after the death of the 17th defendant i.e., on 31.1.1997 and 18.3.1997.
20. The brief facts of the respondents 1 to 10 are as follows:
According to the respondents, the petitioner was impleaded as 27th respondent in the Final Decree application, however, he has not made any attempt to question the preliminary decree. Further, the respondents have stated that the 17th defendant had not shown any due diligence in contesting the suit. In these circumstances, the respondents prayed for dismissal of the application.
21. Mr.P.L. Naryanan, learned counsel appearing for the petitioner in M.P.No.1 of 2015, while reiterating the stand taken in the affidavit, filed in support of the petition, submitted that the proposed party is a proper and necessary party in the suit for the reason that he had purchased the property in the court auction held, even prior to the filing of the suit. Further, the learned counsel submitted that the preliminary decree, passed by the trial court, is liable to be set side for the reason that the preliminary decree was obtained without impleading the purchasers of the properties, even prior to the filing of the suit. Further the learned counsel submitted that the Civil Revision Petition, filed under Article 227 of the Constitution of India, is very much maintainable. In support of his contention, the learned counsel relied on the following judgments:
(i) 2003 (8) SCC 319 (Ram Chandra Singh vs Savitri Devi and Others), wherein the Apex Court has held as follows
15. Commission of fraud on court and suppression of material facts are the core issues involved in these matters. Fraud as is well known vitiates every solemn act. Fraud and justice never dwell together.
16. Fraud is a conduct either by letter or words, which induces the other person or authority to take a definite determinative stand as a response to the conduct of the former either by word or letter.
17. It is also well settled that misrepresentation itself amounts to fraud. Indeed, innocent misrepresentation may also give reason to claim relief against fraud.
18. A fraudulent misrepresentation is called deceit and consists in leading a man into damage by wilfully or recklessly causing him to believe and act on falsehood. It is a fraud in law if a party makes representations which he knows to be false, and injury ensues therefrom although the motive from which the representations proceeded may not have been bad.
This Court further held
25. Although in a given case a deception may not amount to fraud, fraud is anathema to all equitable principles and any affair tainted with fraud cannot be perpetuated or saved by the application of any equitable doctrine including res judicata.
(ii) 2004 (7) SCC 166(S.J.S. Business Enterprises (P) Ltd vs State of Bihar and Others), wherein, the Apex Court has held as follows:
13. As a general rule, suppression of a material fact by a litigant disqualifies such litigant from obtaining any relief. This rule has been evolved out of the need of the courts to deter a litigant from abusing the process of court by deceiving it. But the suppressed fact must be a material one in the sense that had it not been suppressed it would have had an effect on the merits of the case. It must be a matter which was material for the consideration of the court, whatever view the court may have taken1. Thus when the liability to income tax was questioned by an applicant on the ground of her non-residence, the fact that she had purchased and was maintaining a house in the country was held to be a material fact, the suppression of which disentitled her to the relief claimed2. Again when in earlier proceedings before this Court, the appellant had undertaken that it would not carry on the manufacture of liquor at its distillery and the proceedings before this Court were concluded on that basis, a subsequent writ petition for renewal of the licence to manufacture liquor at the same distillery before the High Court was held to have been initiated for oblique and ulterior purposes and the interim order passed by the High Court in such subsequent application was set aside by this Court3. Similarly, a challenge to an order fixing the price was rejected because the petitioners had suppressed the fact that an agreement had been entered into between the petitioners and the Government relating to the fixation of price and that the impugned order had been replaced by another order4.
22. Mr.G. Masilamani, learned Senior Counsel appearing for the proposed party in M.P.No.2 of 2015 submitted that the proposed party is the legal representatives of the 17th defendant. Therefore, without impleading the legal representative of the deceased 17th defendant, shall vitiate the preliminary decree, passed in the absence of the legal representative of the deceased 17th defendant. Further, the learned Senior Counsel submitted that the preliminary decree, without impleading the legal representative of the deceased 17th defendant, is nullity. In support of his contention, the learned Senior Counsel relied on the following judgments:
(i) 2008 (8) SCC 321 (Perumon Bhagavathy Devaswom vs Bhargavi Amma (dead) and others), wherein the Hon'ble Apex Court has held as follows:
Sub-rule (3) provides that where no application is made to cause the legal representative of the deceased respondent to be made party, the appeal shall abate as against the deceased respondent. (The word abate in the context of Order 22 CPC means termination of the suit or appeal on account of the death of a party materially interested.)
5. Having regard to the wording of Rule 4, it is clear that when a respondent dies and an application to bring his legal representative on record is not made, abatement takes place on the expiry of the prescribed period of 90 days, by operation of law. Abatement is not dependent upon any judicial adjudication or declaration of such abatement by a judicial order. It occurs by operation of law. But nevertheless abatement requires judicial cognizance to put an end to a case as having abated. To borrow a phrase from Administrative Law (used with reference to void orders), an appeal bears no brand on its forehead that it has abated, nor does it close itself automatically on abatement. At some stage, the court has to take note of the abatement and record the closure of the case as having abated (where the deceased was a sole respondent) or record that the appeal had abated as against a particular respondent (if there are more than one and the cause of action survives against the others).
23. On a careful consideration of the materials available on record and the submissions made by the learned counsel on either side and also taking into consideration the judgments relied upon by the learned counsel on either side, it could be seen that the plaintiff viz., Balaraman filed a suit in O.S.No.752 of 1989 on the file of District Munsif Court, Poonamallee for partition and for separate possession. The suit was filed as against 24 defendants. All the 24 defendants remained exparte and the trial court passed an exparte preliminary decree on 28.1.1998. Since the main issue, involved in the Civil Revision Petition, is with regard to the judgment passed in O.S.No.752/1989 dated 28.1.1999, it would be appropriate to extract the judgment which reads as follows:
In the Court of the District Munsif of Poonamallee Present:Thiru.H. Joseph David, M.L., District Munsif Wednesday the 28th day of January 1998 O.S.No.752/89 Balaraman .... Plaintiff vs
1. Jegadammal
2. Mari
3. Dass
4. Pazhani
5. Rajendran
6. Durai
7. Natesan
8. Sadhu
9. Gajendran
10.Bhavani
11.Suseela
12.Sanjala ... Defendants This suit is filed for separate possession of plainitff's 1/9th in the suit property and for costs.
This suit is coming on for hearing before me in the presence of Thiru.G. Ananthan Advocagte for plaintiff and the defendants remained exparte and this Court delivered follows:
JUDGMENT PW1 examined. Claim proved. Primary Decree isi passed as prayed for with costs.
Pronounced by me in the Court this the 26th day of January 1996.
Defendants side exhibit and witness:Nil
13.Magi 19.M. Ramachandran
14.Kotti 20.M. Ramamoorthy
15.K. Jayaraman 21.M. Kumar
16.K. Kasi 22.M. Gopi
17.K. Mari 23.A. Narayanan
18.M. Ganesan 24.A. Kanniappan Plaintiff witness Plaintiff exhibit Sd/-DM
24. The main contention of Mr.R. Muthukumaraswamy, learned Senior Counsel, appearing for the Revision Petitioners, was that the above judgment, passed by the trial court, is against the provisions of Order 20 Rule 5 of Civil Procedure Code. As per Order 20 Rule 5 of Civil Procedure Code, in suits, in which, issues have been framed, the Court shall state its finding or decision, with the reasons therefor, upon each separate issue, unless the finding upon any one or more of the issues is sufficient for the decision of the suit.
25. As per Order 20 Rule 4 of Civil Procedure Code, Judgments of the Courts shall contain a concise statement of the case, the points for determination, the decision thereon, and the reasons for such decision.
26. In the case on hand, all the defendants were set exparte. The trial court did not frame any issue for deciding the suit. The trial court simply examined P.W.1 and found that the claim made by him is proved. The judgment pronounced by the trial court is clearly contrary to the provisions of Order.20 Rule 4 and Rule 5 of Civil Procedure Code.
27. In the judgment reported in 2012 (5) SCC 265 (C.N. Ramappa Gowda vs C.C. Chandregowda (dead) by LRs and another, cited supra, the Hon'ble Supreme Court held that in a suit, where the defendants failed to file their written statement, the non-filing of the written statement should not have any penal consequences and the court should proceed cautiously and exercise its discretion in a just manner and even in the absence of written statement, burden of proof would remain on plaintiff and his mere assertion in plaint would not be sufficient to discharge the burden.
28. In that case, challenging a cryptic unreasoned judgment and decree, resulting from failure to file a written statement despite repeated opportunities having been given for the same, it has been held that the High Court was justified in remanding the matter to the lower Court for de novo trial by giving fresh opportunity to the defendants to file written statement.
29. Following the ratio laid down in the judgment reported in 2012 (5) SCC 265 (Ramappa Gowda vs C.C. Chandregowda (dead) by LRs and another,) the Division Bench of this Court, reported in 2013 (4) CTC 545 (Chitrakala vs P. Mahesh and others) (cited supra) (wherein, I was a party to the judgment), held that the burden of proof lies on plaintiff, irrespective of there being any Written Statement or evidence of rebuttal, plaintiff to succeed in Suit only on the basis of strength in his case and not on the basis of weakness in Defendant's case.
30. Further, the Division Bench held that the decree cannot be passed solely on the plaint averments, as these avermetns are not substantiated. Hence the Divison Bench remanded the matter back to the trial court for fresh disposal.
31. The ratio laid down by the Hon'ble Supreme Court as well as the Division Bench of this Court squarely applies to the facts and circumstances of the present case.
32. Hence, I am of the considered view that the judgment passed by the trial court dated 28.1.1998 is not in confirmity with the provisions Order 20 Rule 4 and Rule 5 of Civil Procedure Code.
33. The next point that arises for consideration in this Civil Revision Petition is whether the Civil Revision Petition is maintainable under Article 227 of the Constitution of India, challenging the preliminary decree, passed in O.S.No.752 of 1989.
34. It is pertinent to note that pursuant to the preliminary decree passed on 28.1.1998, the plaintiff filed a Final Decree application in I.A.No.742 of 1999 in O.S.No.752 of 1989 and during the pendency of the final decree application, the plaintiff died. Inspite of the death of the plaintiff and the defendants remaining exparte in the final decree proceedings, the trial Court proceeded with the final decree application and passed the final decree on 25.4.2007. Aggrieved over the same, the legal representatives of the deceased 18th defendant preferred an appeal in A.S.No.31/2007 on the file of Subordinate Court, Poonamalee and the lower Appellate Court also confirmed the final decree passed in I.A.No.742/1999. Challenging the same, the legal representatives of the 18th defendant preferred Second Appeal in S.A.No.266/11 before this Court and this Court had set aside the judgment and decree of the Courts below and allowed the Second Appeal and remanded the matter to the trial court for fresh disposal, after impleading the legal representatives of the deceased parties.
35. It is also brought to the notice of this Court that the 17th defendant had died on 22.12.1995, i.e., even prior to the passing of the preliminary decree. According to the petitioner in M.P.No.2 of 2015, who is the son of the deceased the 17th defendant, the 17th defendant was set exparte after his death i.e., in the year 1997. Even without impleading the legal representative of the deceased 17th defendant, the preliminary decree was passed. The petitioners, who are the legal representatives of the deceased 18th defendant are challenging the preliminary decree passed in O.S.No.752 of 1989.
36. In the judgment reported in 1969 (1) SCC 709 (Smt.Swaran Lata Ghosh vs H.K. Banerjee and Others), cited supra, the Hon'ble Supreme Court held that when there was no real trial of the defendant case, even after a lapse of 18 years, after the date of the suit was instituted, in the absence of any satisfactory alternative, it would be appropriate to remand the suit for trial according to law.
37. No doubt, under Sec.96 of the Civil Procedure Code, an appeal remedy is available to the defendants to challenge the preliminary decree passed in O.S.No.752 of 1989. In the case on hand, the judgment, pronounced by the trial court, is contrary to the provisions of Order 20 Rule 4 and Rule 5 of Civil Procedure Code.
38. That apart, the 17th defendant was not alive on the date of passing of the preliminary decree. In that case, the trial court should have dismissed the suit, as abated, as against the 17th defendant, in the absence of any application, filed by the plaintiff to bring on record the legal representative of the 17th defendant. The trial court had mechanically passed the preliminary decree irrespective of the fact whether the plaintiff has proved his case or not.
39. In the judgment reported in 2004 (7) SCC 166 (S.J.S Business Enterprises (P) Ltd vs State of Bihar and others), the Apex Court held that if the party has withdrawn from the alternative remedy by the time the writ petition was heard, in that case, the writ petition should not be rejected if otherwise maintainable, even though the party had not disclosed the pendency of the alternative remedy when it filed the writ petition.
40. In the judgment reported in 2003 (6) SCC 675 (Surya Dev Rai vs Ram Chander Rai and Others), cited supra, the Apex Court held that Article 226 and Article 227 of the Constitution of India being part of the basic structure it cannot tampered, not even by a constitutional amendment, much less by an Act of legislature and therefore, the party can seek such writ of certiorari or invoke power of superintendence of High Court.
41. In the judgment reported in 2013 2 CTC 388 (N. Maheswari vs Mariappan and Others) (cited supra) this Court exercised the powers under Article 227 of the Constitution of India and set aside the judgment passed by the trial court finding that this court cannot close its eyes in dealing with such types of judgments and direct the revision petitioner to go the Appellate Court when the judgment and decree is apparently on the face of it is illegal.
42. Similar view was taken in the judgment reported in 2004 (4) CTC 650 (Muthamilselvan and others vs A. Manickam and Others).
43. Therefore, as already stated since the judgment passed by the trial Court is not in confirmity with Order 20 Rule 4 and Rule 5 of the Civil Procedure Code, it is apparently on the face of it is illegal.
44. It is pertinent to note that many of the parties to the suit had died and their legal representatives were not brought on record in the suit and also the purchasers of the land, even prior to the filing of the suit, were not brought on record. As stated in the judgment reported in 2013 (2) CTC 388 (N. Maheswari vs Mariappan and others), this court cannot close its eyes and direct the revision petitioners to go to the Appellate Court.
45. In these circumstances, I am of the considered view that the Civil Revision Petition filed under Article 227 of the Constitution of India, challenging the preliminary decree passed in O.S.No.752 of 1999 is maintainable.
46. M.P.No.5 of 2014 has been filed by the purchasers, who had purchased the property in the year 2011 from the legal representatives of the plaintiff. Their purchase is subsequent to the passing of the final decree. If the plaintiff is allotted a specific share, then the purchasers from the plaintiff will also get a right in the property, allotted to the plaintiff.
47. In M.P.No.1 of 2015, the petitioner is the auction purchaser of some of the properties even prior to the filing of the suit. The plaintiff should have impleaded him as party in the suit. However, the suit was filed even without impleading the purchaser under the Court auction.
48. In M.P.No.2 of 2015 has been filed by the legal representative of the deceased 17th defendant. According to the petitioner, his father A. Mari died even prior to the passing of the preliminary decree and inspite of the same, he was not impleaded as the legal representative the 17th defendant. The plaintiff should have taken steps to implead the legal representative of the 17th defendant in the suit, even prior to the passing of the preliminary decree.
49. As per the ratio laid down in the judgment reported in 1969 SCC 709 (Smt.Swaran Lata Ghosh vs H.K. Banerjee and Others) (cited supra), left with no other satisfactory alternative for the reasons stated above, the preliminary decree, passed by the Court, is liable to be set aside and the suit be remanded for trial, according to law.
50. In these circumstances, I am of the considered view that, in the interest of justice, the judgment and decree passed in O.S.No.752 of 1989 dated 28.1.1998 are liable to be set aside and the matter should be remanded to the District Munsif Court, Poonamallee for fresh disposal, on merits and in accordance with law.
51. Though this Court had set aside the final decree application passed in I.A.No.742 of 1999 in O.S.No.752 of 1989 and remanded the matter to the trial court for fresh disposal in S.A.No.266 of 2011, since I am setting aside the preliminary decree itself in this Civil Revision Petition, the judgment passed in S.A.No.266 of 2011 has become redundant and therefore there is no necessity to proceed with the final decree application.
52. Since I am remanding the matter to the trial Court for fresh disposal, the proposed parties, who have filed petitions in M.P.Nos.5/2014, 1/15 and 2/2015 are at liberty to file applications before the trial court to get themselves impleaded in the suit. The trial court shall decide the applications, if any, filed by the proposed parties, to get themselves impleaded, on merits and in accordance with law. It is also open to the legal representatives of the other deceased parties to file appropriate application before the trial Court to get themselves impleaded.
53. With these observations, the judgment and decree dated 28.01.1998 passed in O.S.No.752 of 1989 are set aside and the matter is remanded to the trial Court for fresh disposal as stated above. Consequently, the Civil Revision Petition is allowed. No costs. Since I have given liberty to the proposed parties to file appropriate applications before the trial court, to get themselves impleaded in the suit, I am not passing any orders on merits in the petitions in M.P.Nos.5 of 2014, 1 of 2015 and 2 of 2015 and therefore M.P.Nos.5/2014, 1/2015 and 2 of 2015 are closed. Consequently, connected MP No.1 of 2013 is also closed.
54. After impleading all the parties and after affording opportunity to all the parties, the trial court is directed to dispose of the suit in O.S.No.752 of 1989 on merits and in accordance with law, within a period of six months from the date of receipt of copy of this order.
10-07-2015 rj/sr Index:yes website:yes To The District Munsif Court, Poonamallee, M. DURAISWAMY,J., rj/sr Pre-Delivery Order in CRP No.2984 of 2013 and M.P.Nos.
5/2014, 1/2015 and 2/201510-07-2015