Madras High Court
V.Singarayar vs Vaidya Lingam Chetty Charity on 21 January, 2025
Author: N.Sathish Kumar
Bench: N.Sathish Kumar
C.R.P.(NPD)No.878 of 2022
IN THE HIGH COURTOF JUDICATURE AT MADRAS
Dated : 21.01.2025
Coram
The Hon'ble Mr.Justice N.Sathish Kumar
C.R.P.(NPD)No.878 of 2022
S.Arokia Mary (died)
1. V.Singarayar
2. S.Charles
3. S.David
4. S.Nancy
..Revision Petitioners
Vs.
1. Vaidya Lingam Chetty Charity
rep. by its Trustees,
S.Jayachandran
M.Amanullah (died)
2. A.Kurshith Bee
3. A.Anwar Basha
...Respondents
Civil Revision Petition filed under Section 115 of the Civil
Procedure Code as against the order and decree in E.A.No.5 of 2020 in
E.P.No.2419 of 2018 in O.S.No.6520 of 2017 dated 06.03.2021, on the file
of the IX Assistant Judge, City Civil Court, Chennai.
For Revision Petitioners : Mr.S.Krishnasamy
For Respondent-1 : Notice not ready
For Respondents 2 and 3 : No appearance
ORDER
1/8
https://www.mhc.tn.gov.in/judis C.R.P.(NPD)No.878 of 2022 This Revision Petition has been filed challenging the order passed by the learned IX Assistant Judge, City Civil Court, Chennai. in E.A.No.5 of 2020 in E.P.No.2419 of 2018 in O.S.No.6520 of 2017 dated 06.03.2021.
2. The facts of the case in short are as follows:-
i) The suit is filed by the plaintiff seeking for the relief of declaration and for consequential recovery of possession from the second defendant on the ground that she is the absolute owner of the suit. property.
The suit proceeded on the basis that the plaintiff has purchased the property by virtue of a sale deed dated 12.07.1982 and all the Revenue Records were also changed in her name; that the second defendant in the suit is in unauthorized occupation of the suit property. The plaintiff has already filed a suit in O.S.No.9000 of 2011, wherein, he (second defendant) took a defence that the suit was not maintainable for not impleading the first defendant, since he is a tenant under the first defendant; that as the said suit in O.S.No.9000 of 2011, was dismissed on the ground of non-impleading the first defendant, the present suit is filed for comprehensive relief of 2/8 https://www.mhc.tn.gov.in/judis C.R.P.(NPD)No.878 of 2022 declaration and eviction.
ii) The suit was originally decreed ex parte vide a judgment and decree dated 27.07.2018, though the second defendant was served, he did not appear, therefore, he was set ex parte. So far as the first defendant is concerned, paper publication was taken against him and he was also set ex parte. When the judgment and decree was put into execution, an application under Section 47 of the CPC has been taken out by the legal heirs of the second defendant/second judgement debtor on the ground that one Jayachandran, representing the first defendant-Trust died in the year 01.09.2013, much prior to the institution of the suit, therefore, the Execution proceedings initiated pursuant to the decree passed in a suit, which was filed against a dead person is a nullity.
iii) The Trial Court, based on the above facts, allowed the application filed under Section 47. Challenging the same, present Revision Petition is filed by the revision petitioners/decree-holders.
3. It is the contention of the learned counsel appearing for the 3/8 https://www.mhc.tn.gov.in/judis C.R.P.(NPD)No.878 of 2022 revision petitioners that though the first defendant, which is a Charitable Trust, was represented by one Jayachandran, who died on 01.09.2013, the second defendant was alive and notice was served and he did not contest the suit, therefore, the ex parte judmgent and decree has been passed against him, and hence, the second defendant cannot avoid the execution. Thus, by averring so, the learned counsel prayed for setting aside the impugned order.
4. Heard the learned counsel appearing for the petitioner and perused the materials available on record. Though the respondents 2 and 3 were served and their names were printed in the causelist, they have neither entered appearance in person nor represented through any other counsel.
5. The very crux of the issue revolves around on the aspect that second defendant is in occupation of the suit property. On an earlier occasion, when the plaintiff filed the suit for ejection in O.S.No.9000 of 2011, the said suit came to be dismissed on the ground of non-impleading the first defendant, since the second defendant took a specific defence that he was a tenant under the first defendant, and that suit was bad for non- 4/8 https://www.mhc.tn.gov.in/judis C.R.P.(NPD)No.878 of 2022 joinder of necessary party, first defendant, and accordingly, the suit was dismissed and hence, when the present suit has been filed, the plaintiff ought to have instituted the suit in a proper manner.
5.1 No doubt, the first defendant, viz., Vaidya Lingam Chetty Charity is a Religious Institution. Normally, Institutions are represented by a human agency. When a suit is filed against such Institutions to assert the rights over the property, human agency through whom, the Institution was represented at relevant point of time should be alive, whereas, in the present case, one Jayachandran, who said to be the representative of the first defendant-Institution already died on 01.09.2013. So, the suit has not been properly instituted, in view of this Court. Therefore, this Court is of the view that the order passed by the trial Court does not require any interference. However, as the first defendant is concerned, which is only a Religious Institution, it is normally treated as Juristic entitty. It could be represented by any human agency, hence, the revision petitioners are permitted to substitute any other human agency, who is representing the first defendant in the suit and file proper application for substitution of other person in the 5/8 https://www.mhc.tn.gov.in/judis C.R.P.(NPD)No.878 of 2022 place of deceased Jayachandran to represent the first defendant-Trust in the suit and proceed with the suit fresh as against the first defendant as well as other legal heirs of the second defendant, since the second defendant also died during the pendency of the proceedings. In such view of the matter, though this Court is not inclined to interfere with the order passed by the Trial Court, however, orders for restoration of the suit on its original file. The revision petitioners are permitted to substitute proper person representing the first defendant-Trust and the revision petitioners are also permitted to bring on record the legal heirs of the deceased second defendant as defendants and proceed with the suit afresh for giving opportunities to the parties.
6. With the above observation, this Civil Revision Petition is disposed of. No costs.
21.01.2025 sd Index : yes/no To 6/8 https://www.mhc.tn.gov.in/judis C.R.P.(NPD)No.878 of 2022 IX Assistant Judge, City Civil Court, Chennai.
N.Sathish Kumar,J., sd 7/8 https://www.mhc.tn.gov.in/judis C.R.P.(NPD)No.878 of 2022 C.R.P.(NPD)No.878 of 2022 21.01.2025 8/8 https://www.mhc.tn.gov.in/judis