Madras High Court
Poomani vs Kannappan on 8 October, 2018
Author: P.T.Asha
Bench: P.T.Asha
IN THE HIGH COURT OF JUDICATURE AT MADRAS Reserved on 19.09.2018 Pronounced on 08.10.2018 Coram The Honourable Ms.Justice P.T.ASHA C.R.P(NPD)No.974 of 2007 1.Poomani 2.Prakash 3.Baskar ...Petitioners Versus 1.Kannappan 2.Periyavan @ Chinnasamy 3.Narasimhan 4.Mannar 5.Govindan 6.Budden 7.S.C.Raju 8.Chinnasamy 9.Mannargounder 10.Chinnakannu 11.Chinnapillai 12.Muniappan 13.Sevathan ...Respondents This Civil Revision is filed under Section 115 praying to set aside the orders of the learned District Munsif of Krishnagiri dated 20.09.2006 I.A.No.142 of 2006 in O.S.No.335 of 1991. For Petitioners : Mr.J.Hariharan for Mr.V.Nicholas For Respondents 1, 3, 5, 7, 8 & 10 : Mr.Sharath Chandran for Mr.V.Raghavachari Respondents 2, 9 & 13 : No Appearance Respondents 6, 11 & 12 : Died Respondent 4 : Dismissed vide Court order dated 30.09.2011 O R D E R
This Civil Revision Petition is filed challenging the order passed by the learned District Munsif, Krishnagiri, in I.A.No.142 of 2006 in O.S.No.335 of 1991 dated 20.09.2006, in and by which the learned Judge has dismissed the Interlocutory Application filed by the revision petitioners to condone the delay of 21 days in filing the Application to restore the suit which was dismissed on 12.08.2005.
2. The issue is to be considered in the above Civil Revision Petition is whether the judgment passed by the learned District Munsif, Krishnagiri in O.S.No.335 of 1991 on 24.06.2005 is one passed under the provisions of Order XVII Rule 2 or Order XVII Rule 3 of the Code of Civil Procedure (hereinafter referred to as C.P.C).
3. The brief facts of the case are as follows:
(a) The revision petitioners who are the plaintiffs in O.S.No.335 of 1991 had instituted the said Suit on the file of the learned District Munsif Court, Krishnagiri for declaring their title to the property marked EDCJIHGP in the plaint plan and for a permanent injunction restraining the defendants therein from trespassing into the suit property and interfering with the plaintiff's possession and enjoyment of the suit property.
(b) The respondents 3 to 5 herein had denied the claim of the revision petitioners and had filed their written statement on 27.04.1993 and the other defendants had adopted the same. The suit was taken up for a trial and the evidence of P.W.1 was concluded on 24.09.2004 and till 01.11.2004, the revision petitioners were given time for examining other witnesses. Meanwhile, the fourth respondent had died on 01.01.2004, and steps were taken to bring on record his legal representatives. Even this was done only after several adjournments. Finally the evidence on the side of the revision petitioner/plaintiffs was closed on 14.06.2005. On 16.06.2005, the chief examination of the respondents was concluded and the matter was adjourned on several hearings for the revision petitioners to cross examine the defense witness. The matter was finally adjourned to 23.06.2005 for the revision petitioners to cross examine D.W.1 and ultimately, on 23.06.2005, the evidence of D.W.1 was closed and on 24.06.2005, a judgment on merits came to be passed. On 14.08.2005, the revision petitioners came forward with an Application to restore the suit and since delay had crept in the impugned Application for condoning the delay of 21 days in filing the Application to restore the suit was filed.
(c) In the affidavit filed in support of the impugned Interlocutory Application, the second petitioner would contend as follows:
He would submit that after the plaint was amended, subsequent to the legal representatives of the deceased fourth respondent being brought on record, the suit was posted on 01.06.2005 for filing of additional written statement. He would submit that since he was under the impression that his counsel would inform him whenever his presence was required. He had not followed up the suit. He would also state that he was the one who was in the know of the proceedings and it was his case that it was respondents who were dragging on the proceedings and that since he had a valid title to the suit property and was prepared to go along with the trial. The suit should be restored, failing which he would be prejudiced. It is also his contention that he came to know about the dismissal of the Suit only on 12.08.2005 and therefore, the delay of 21 days in filing the Application to restore the suit.
4. The respondents herein had filed a detailed counter affidavit denying the statement made by the petitioners. They had contended that the remedy available to the revision petitioners is only to file an Appeal and not move an Application under Section 151 of C.P.C since a judgment has been passed on merits.
5. After hearing the submissions on either side, the learned District Munsif, Krishnagiri dismissed the Application filed by the revision petitioners stating that the remedy is only to file a First Appeal. It is aggrieved by this order that revision petitioners are before this Court.
6. Mr.J.Hariharan, learned counsel appearing for the revision petitioners would submit that the learned District Munsif, Krishnagiri ought to have considered the impugned Application and passed orders since the judgment that has been passed by the learned District Munsif, Krishnagiri in O.S.No.335 of 1991 is only an ex-parte order and therefore, the remedy that is available to the revision petitioners is only under the provisions of Order IX Rule 9 of C.P.C. In support of his arguments, he has submitted the following judgments:
Dakshinamoorthi Kandar Vs. Ponnuswami @ Karuppa Kandar and Others reported in (1948) 1 MLJ 65 Natesa Thevar Vs. Vairavan Servaigaran reported in (1954) 67 LW 928 P.Ganesan Vs. UCO Bank and 2 Others reported in (1998) 2 LW 592 Narayana Gounder Vs. Devaki Ammal & Another reported in (1999) 2 CTC 439 Vasu Thevar & Others Vs. Rukmani Ammal & Another reported in (2000) 1 LW 723 T.Venkatesa Chetty Vs. G.Balu & Others reported in (2009) 1 LW 646 C.Madhu Vs. K.Vajravel reported in (2011) 1 CTC 438 Ghanshyam Dass Gupta Vs. Makhan Lal reported in (2012) 8 SCC 745 A.Ravishankar Prasad Vs. Prasad Production Private Ltd., reported in (2016) 4 LW 739
7. Mr.Sharath Chandar, learned counsel appearing appearing on behalf of the respondents 1, 3, 5, 7, 8 & 10. On the other hand, would contend that the judgment is one on merits since the evidence of the defendant had also been recorded and therefore, the learned Judge had adopted the procedure contemplated under the Explanation to Order XVII Rule 2 & Order XVII Rule 3. In support of his submissions, he would cite the judgments which are hereinbelow:
Arumugha Gounder and 2 Others Vs. Tmt.Palaniammal and 2 Others reported in 2001 1 LW 167 B.Janakiramaiah Chetty Vs. A.K.Parthasarthi and Others reported in (2003) 5 SCC 641 T.Kalyanasundaram Vs. M.S.Arumuganayakar reported in 2005 4 LW 290
8. Before dealing with the submissions that have been made on either side, it is necessary to extract the provisions of Order XVII Rule 2 and Order XVII Rule 3:
2. Procedure if parties fail to appear on day fixed Where, on any day to which the hearing of the suit is adjourned, the parties or any of them fail to appear, the Court may proceed to dispose of the suit in one of the modes directed in that behalf by Order IX or make such other order as it thinks fit.
[Explanation.- Where the evidence or a substantial portion of the evidence of any party has already been recorded and such party fails to appear on any day to which the hearing of the suit is adjourned, the Court may, in its discretion proceed with the case as if such party were present.] 3. Court may proceed notwithstanding either party fails to produce evidence, etc. - Where any party to a suit to whom time has been granted fails to produce his evidence, or to cause the attendance of his witnesses, or to perform any other act necessary to the further progress of the suit, for which time has been allowed, [the Court may, notwithstanding such default, -
(a) if the parties are present, proceed to decide the suit forthwith; or
(b) if the parties are, or any of them is, absent, proceed under Rule 2.]
9. A reading of the Explanation to Order XVII Rule 2 r/w Order XVII Rule 3 would show that in a given case where substantial evidence has been recorded and the Court feels that such evidence is sufficient to decide upon the case then in that case may exercise its discretion to proceed with the case as if the parties were present.
10. In the instant case, a perusal of the judgment and the sequence of events preceeding the judgment would clearly establish that the plaintiffs' side evidence has been closed and P.W.1 had been cross examined and the defendants had let in their chief examination and despite time being granted on one a many occasion, D.W.1 had not been cross examined by the revision petitioners and therefore, adopting the procedure under Order XVII Rule 2, its explanation and Order XVII Rule 3, the learned District Munsif, Krishnagiri had proceeded to pass a judgment on merits.
11. The Honourable Supreme Court in its judgment in the case of B.Janakiramaiah Chetty Vs. A.K.Parthasarthi and Others reported in (2003) 5 SCC 641 has succinctly brought out the essence of the Explanation to Rule 2 and the Honourable Apex Court has held as follows:
8. The Explanation permits the Court in its discretion to proceed with a case where substantial portion of evidence of any party has already been recorded and such party fails to appear on any day to which the hearing of the suit is adjourned. As the provision itself shows, discretionary power given to the Court is to be exercised in a given circumstance. For application of the provision, the Court has to satisfy itself that: (a) substantial portion of the evidence of any party has been already recorded; (b) such party has failed to appear on any day; and (c) the day is one to which the hearing of the suit is adjourned. Rule 2 permits the Court to adopt any of the modes provided in Order 9 or to make such order as he thinks fit when on any day to which the hearing of the suit is adjourned, the parties or any of them fail to appear. The Explanation is in the nature of an exception to the general power given under the rule, conferring discretion on the Court to act under the specified circumstance, i.e., where evidence or a substantial portion of evidence of any party has been already recorded and such party fails to appear on the date to the Court may in its discretion deem as if such party was present. The Honourable Supreme Court has further observed in the paragraph No.10 which read as follows:
10. The crucial expression in the Explanation is where the evidence or a substantial portion of the evidence of a party. There is a positive purpose in this legislative expression. It obviously means that the evidence on record is sufficient to substantiate the absentee party's stand and for disposal of the suit. The absentee party is deemed to be present for this obvious purpose. The Court while acting under the Explanation may proceed with the case if that prima facie is the position. The Court has to be satisfied on the facts of each case about this requisite aspect. It would be also imperative for the Court to record its satisfaction in that perspective. It cannot be said that the requirement of substantial portion of the evidence or the evidence having been led for applying the Explanation is without any purpose. If the evidence on record is sufficient for disposal of the suit, there is no need for adjourning the suit or deferring the decision.
12. In the light of this judgment of the Honourable Supreme Court, when the facts of the instant case are examined, it is evident that the learned District Munsif, Krishnagiri has drawn up issues and considered the evidence available on record and pronounced the judgment on the basis of records produced by petitioners and the oral evidence available on record.
13. The learned Judge has dealt with each issue and returned a finding on each of these issues. It is therefore clear that the judgment has been pronounced by the learned District Munsif, Krishnagiri by adopting the procedure contemplated under the Explanation to Order 17 Rule 2 r/w Order 17 Rule (3)(a).
14. Therefore, the remedy that is available to the revision petitioners is only by way of an Appeal under Section 96 of C.P.C. as the order was passed by the Court by exercising its powers which has now been enlarged by the insertion of an Explanation to Order XVII Rule 2 & Order XVII Rule 3(a) of C.P.C by deeming that the judgment has been passed in the presence of both parties. The judgments relied upon by the learned counsel for the petitioners relates to cases where evidence has not been let in by the appellant in the cases of C.Madhu Vs. K.Vajravel reported in (2011) 1 CTC 438 and A.Ravishankar Prasad Vs. Prasad Production Private Ltd., reported in (2016) 4 LW 739. The absence of the defendants in the suit was on account of the fact that notice had not been served on them after the suit had been transferred to the City Civil Court from this Court on account of the enhancement of the pecunary jurisdiction of the City Civil Court. Therefore, the judgments relied upon by the learned counsel for the revision petitioners would not enure to the revision petitioners. The case on hand is definitely covered by the explanation to Order XVII Rule 2 and Order 17 Rule 3(a), in and by which the judgment is deemed to have been passed in the presence of both parties and where substantial evidence is available on record based upon which the judgment has been passed. I find no infirmity in the order passed by the learned District Munsif, Krishnagiri.
15. In the result, this Civil Revision Petition is dismissed and the order of the learned District Munsif, Krishnagiri, in I.A.No.142 of 2006 in O.S.No.335 of 1991 dated 20.09.2006 is set aside. No costs.
08.10.2018 mrr Index : Yes / No Speaking Order or Non-Speaking Order P.T.ASHA, J., mrr To The District Munsif, Krishnagiri.
Pre-Delivery Order in C.R.P(NPD)No.974 of 2007 08.10.2018