Madras High Court
Senthamarai vs Ramarao on 1 April, 2021
C.R.P.(N.P.D) No.602 of 2016 &
C.R.P.(N.P.D) No. 510 of 2018
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 01.04.2021
CORAM
THE HON'BLE Mr. JUSTICE G.K.ILANTHIRAIYAN
CRP (NPD) No. 602 of 2016 &
CRP (NPD) No. 510 of 2018
and
CMP No.3208 of 2016 &
CMP Nos.2618 & 2619 of 2018
Senthamarai ... Petitioner in both CRPs
Vs
Ramarao ... Respondent in both CRPs
Prayer in CRP (NPD)No.602 of 2016:- Civil Revision Petition is filed
under Section 115 of the Civil Procedure Code, to call for the records of the
Lower Court i.e. Principal Sub Judge, Puducherry and set aside the order
and decreetal dated 03.08.2013 passed in I.A.No.958 of 2013 in O.S.No.322
of 2000 by the Principal Sub Judge, Puducherry and allow this Civil
Revision Petition.
Prayer in CRP (NPD) No. 510 of 2018 :- Civil Revision Petition is filed
under Article 227 of Constitution of India, to set aside the order dated
06.12.2017 passed in E.A.No.156 of 2017 in E.P.No.20 of 2006 by the
Principal Sub Judge, Puducherry and allow this Civil Revision Petition.
https://www.mhc.tn.gov.in/judis/
C.R.P.(N.P.D) No.602 of 2016 &
C.R.P.(N.P.D) No. 510 of 2018
For Petitioner : Mr.A.Kripakaran (in both CRPs)
For Respondent : Mr.S.Subramanian (in both CRPs)
COMMON ORDER
These Civil Revision Petitions are filed against the fair and
decreetal dated 03.08.2013 passed in I.A.No.958 of 2013 in O.S.No.322 of
2000 and order dated 06.12.2017 passed in E.A.No.156 of 2017 in
E.P.No.20 of 2006 on the file of the Principal Sub Judge, Puducherry,
thereby dismissing the petition to condone the delay in filing the petition to
set aside the exparte decree.
2. The petitioner is the defendant and the respondent is the
plaintiff. The respondent filed a suit for specific performance of the
agreement of sale dated 02.02.1999. The total sale consideration is fixed at
Rs.3,00,000/-. On the date of agreement, the petitioner received a sum of
Rs.1,00,000/- as advance and agreed to execute the sale deed within a
period of three months from the date of payment of the balance sale
consideration.
https://www.mhc.tn.gov.in/judis/
C.R.P.(N.P.D) No.602 of 2016 &
C.R.P.(N.P.D) No. 510 of 2018
3. According to the respondent, when the respondent was ready
with the balance sale consideration, the petitioner did not come forward to
receive the same and also refused to register the sale deed. Therefore, the
respondent filed a suit for specific performance on 09.08.2000. After
receipt of the summons, the petitioner failed to appear before the Court
below and as such the petitioner was set exparte and exparte decree was
passed on 27.10.2000.
4. On the strength of the exparte decree the respondent filed an
Execution Petition in E.P.No.20 of 2006, in which, the petitioner was served
notice. Only thereafter the petitioner came to know about the exparte decree
passed in the suit for specific performance. Therefore, there is a delay of
2148 days in filing the petition to set aside the exparte decree.
5. On a perusal of the affidavit filed in support of the exparte
decree reveals as follows :
“I submit that the respondent has filed the above suit for
specific performance for the suit mentioned property. I
https://www.mhc.tn.gov.in/judis/
C.R.P.(N.P.D) No.602 of 2016 &
C.R.P.(N.P.D) No. 510 of 2018
submit that in the above suit, the suit notice was not duly
served on me and I was not aware of the case till
recently and hence the exparte decree was passed as
against me on 27.10.2000. I submit that my husband
Santhakumar had picked up quarrel often with me due to
the influence of liquor and he attacked me with weapons
in the year 2000. On 26.08.2000 there was a family
dispute arose between the husband and wife and he has
attacked me and caused injuries and in order to save my
life I was constrained to assault my husband with broken
bottle and he sustained injuries on his ear. My husband
has given a police complaint on 27.08.2000 to the SHO,
Lawspet Police Station against me and my brother and a
case was registered in F.I.R.No.75/2000 under Section
326 read with 34 of IPC. My husband left the wife and
children on the street on 27.08.2000 itself and then he
not permitted me to live with him along with the
children. Infact, he deserted the wife and children and
lived separately. I have lived along with children at my
parents house at Siruvathur Village, Panruti Taluk,
Cuddalore District. On 01.11.2000 I have filed a
maintenance case as against my husband in
M.C.No.31/2000 on the file of the Hon'ble Family Court
https://www.mhc.tn.gov.in/judis/
C.R.P.(N.P.D) No.602 of 2016 &
C.R.P.(N.P.D) No. 510 of 2018
at Pondicherry and in that case a sum of Rs.1500/- was
awarded on 11.01.2001 as monthly maintenance to me
and my two children. I have filed the above M.C. from
Siruvathur Village. My husband was not permitted me
to live at Pethuchettipet and hence I was constrained to
stay at my parents house at Siruvathur Village. When I
was staying at Siruvathur Village, I have also filed a
case for restitution of conjugal rights as against my
husband in M.O.P.No.32/2001 on the file of Hon'ble
Family Court Judge, Pondicherry on 23.03.2001. I was
residing at Siruvathur Village till the year 2003 and then
only I came to Pondicherry for Education purpose and
stayed at No.17, School Street, Pethuchettipet, Lawspet,
Pondicherry. I have no knowledge about the existence
of O.S.No.322/2000 and the E.P.No.57/2001 which was
filed by the decree holder for execution of sale deed by
the court itself. I submit that in the above case an
exparte decree was passed on 27.10.2000. I am having
good case on merits and hence the exparte decree
passed on 27.10.2000 may be set asided and permit me
to contest the case on merits. I have also filed the
petition to set-aside the exparte decree along with this
petition.”
https://www.mhc.tn.gov.in/judis/
C.R.P.(N.P.D) No.602 of 2016 &
C.R.P.(N.P.D) No. 510 of 2018
6. Admittedly, there was a dispute between the petitioner and the
respondent which was also converted into a criminal case. The petitioner
was living in her parents house and also filed a Maintenance Case on the
file of the Family Court, Pondicherry. Therefore, the petitioner was not
residing in the address given in the plaint. Her husband also died on
06.11.2002. Thereafter, she came to the suit property and received notice in
the Execution Petition.
7. That apart, the Court below set the petitioner as exparte and
passed exparte decree and judgment on 27.10.2000. The Court below
passed the Judgment as follows :
“2. The defendant was called absent and set exparte.
Thereupon the plaintiff was examined as PW.1 and Exs.
A1 to A4 were marked. Heard. Perused the records.
Satisfied that the plaintiff's case stands proved. Hence
suit is decreed with costs directing the defendant to
execute the sale deed in respect of the suit property after
receiving the balance sale consideration from the plaintiff
and in default by the defendant directing the execution of
the said sale deed by this Court or in the alternative direct
https://www.mhc.tn.gov.in/judis/
C.R.P.(N.P.D) No.602 of 2016 &
C.R.P.(N.P.D) No. 510 of 2018
the defendant to return the advance amount of Rs.one lakh
along with interest at 12% p.a. from the date of plaint till
date of payment”.
8. In pursuant to the exparte Judgment and Decree, the
respondent filed an Execution Petition in E.P.No.20 of 2006 and execution
of sale deed was ordered. Accordingly, the sale deed was executed in favour
of the respondent herein. Now, the Execution Petition is pending for
delivery of possession. Pending the same, the petitioner also filed
E.A.No.156 of 2017 under Section 47 of CPC, to set aside the decree and
also took a specific ground that the decree is not executable one. The
balance sale consideration is deposited by the respondent and it is lying with
the Execution Court.
9) The learned counsel for the petitioner has relied upon the
several reported judgments and its relevant paragraphs are extracted
hereunder:-
(i)CMA No.3700 of 2010 of 2010 - Meenakshisundaram Textiles
Vs. Valliammal Textiles Ltd., the relevant paragraphs are extracted here
https://www.mhc.tn.gov.in/judis/
C.R.P.(N.P.D) No.602 of 2016 &
C.R.P.(N.P.D) No. 510 of 2018
under:-
17. Section 2(2) of the Code of Civil Procedure
defines a "decree" as follows:-
''2(2) "decree" means formal expression of an
adjudication which, so far as regards the Court expressing it,
conclusively determines the rights of the parties with regard to
all or any of the matters in controversy in the suit and may be
either preliminary or final. It shall be deemed to include the
rejection of a plaint and the determination of any question
within Section 144, but shall not include-
(a) any adjudication from which an
appeal lies as an appeal from an order, or
(b) any order of dismissal for default.
Explanation-A decree is preliminary when further
proceedings have to be taken before the suit can be completely
disposed of. It is final when such adjudication completely
disposes of the suit. It may be partly preliminary and partly
final;
In order to bring a decree within the provisions of
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C.R.P.(N.P.D) No.602 of 2016 &
C.R.P.(N.P.D) No. 510 of 2018
Section 2(2), the following essential elements are necessary.
There must be a suit, as such a decree could be given only in
relation to a suit. There must be an adjudication of the dispute.
Adjudication means the judicial determination of the matter in
dispute. Adjudication, in other words, also would mean that
the Court must have applied its mind to the facts of the case to
resolve the matter in dispute. Such adjudication must be about
any or all the matters in controversy int he suit. After
adjudication, there must be a conclusive determination of the
rights of the parties. Finally, in order to pass a decree, the
Court must formally express its decision in the manner
provided by law. In this regard, the provisions of Section 33 of
Code of Civil procedure are also relevant to be kept in mind.
That provision states that the decree shall follow on the basis
of the judgment pronounced. ''
(ii)CRP(NPD) No.1619 of 2019-M.Chandra Vs.N.Boopathy, the
relevant paragraphs are extracted here under:-
''10) In the light of the decisions cited Supra, ex-parte
judgment passed by the Court below is not in consonance with
Section 2(9) of C.P.C and therefore, it is clear that the
judgment passed by the Court below is cryptic, without
following the procedure as contemplated under Section 2(9)
https://www.mhc.tn.gov.in/judis/
C.R.P.(N.P.D) No.602 of 2016 &
C.R.P.(N.P.D) No. 510 of 2018
of C.P.C. The impugned order passed by the Court below in
I.A.No.2369 of 2016 dismissing the application for condoning
the delay of 292 days in filing the set aside petition is liable to
be set aside.''
(iii)CRP(MD) No.2003 of 2011-Vijayakumari and others
Vs.Veeranan and others, the relevant paragraphs are extracted here under:-
''12)It is no doubt true that the delay of 1036 days is
inordinate but this Court should also take note of the said ex-
parte judgment, based on which execution petition has been
filed and the sale deed was obtained by the plaintiff. Order XX
Rule 4 CPC would clearly state that the 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. However, the judgment in the instant suit does
not conform with these requirements as provided under Order
XX Rule 4 CPC and does not reflect the issues involved in the
present case. In a suit for specific performance, the Courts
have to definitely consider the fact as to whether the plaintiff
has been ready and willing to perform his part of the contract
and the judgment in question does not spell out whether the
issue has been considered. The issue regarding readiness and
willingness to perform the obligation under the contract is a
https://www.mhc.tn.gov.in/judis/
C.R.P.(N.P.D) No.602 of 2016 &
C.R.P.(N.P.D) No. 510 of 2018
sine qua non for a suit for specific performance.''
(iv)CRP (NPD)(MD).No.1303 of 2012-R.Stella Vs. V.Antony
Francis and the relevant paragraphs are extracted here under:
''19)It is clear from the above judgments that where
the defendant contests a suit or submits himself to a decree, it
is the bounden duty of the trial Court to follow the procedure
under Order XX Rule 4 of the Civil Procedure Code, by giving
the concise statment of the case, the points for determination,
the decision thereon and the reasons for such decision. If this
is not satisfied and a cryptic unreasoned judgment is passed, it
is ex facie illegal. When a Court considers an application for
delay to set aside the ex-parte decree, this must also be taken
into consideration. If the original judgment itself is ex-facie
illegal, it cannot be allowed to continue and under such
circumstances, it will have a bearing, while the Court
considers an application to condone the delay to set aside the
ex-parte decree. The Court need not have a pedantic
approach in this regard, since it involves the substantial right
of the parties."
(v)CRP (PD) No.438 of 2018-Ramachandran and others
Vs.Balakrishnan and others, the relevant paragraphs are extracted here
under:
https://www.mhc.tn.gov.in/judis/
C.R.P.(N.P.D) No.602 of 2016 &
C.R.P.(N.P.D) No. 510 of 2018
"16. A Division Bench of this Court in
M/s.Meenakshisundaram Textiles v. M/s.Valliammal Textiles
Ltd., reported in 2011 (3) LW 80, has pointed out that even an
exparte judgment must contain bare minimum facts, the point
for determination, the evidence adduced and the application of
those facts and evidence for deciding the issue. A judgment
which does not contain the above would not qualify to be
called a judgment. While considering the scope of the
definition of the judgment under Section 2(9) of the Code of
Civil Procedure read with Order 20 Rule 6(a), the Division
Bench has held as follows:
“10. Judgment not containing the bare minimum
facts, the point for determination, the evidence
adduced and the application of those facts and
evidence for deciding the issue would not qualify it
to call as “judgment”.
11. When the defendant is set exparte, the burden is
heavy on the Court, as it would not have the
advantage of defence. Therefore, the Court should
be extra careful in such cases and they should
consider the pleadings and evidence and should
arrive at a finding as to whether the plaintiff has
made out a case for a decree.
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C.R.P.(N.P.D) No.602 of 2016 &
C.R.P.(N.P.D) No. 510 of 2018
12. The “judgment” should contain the brief
summary of the facts, the evidence produced by
the plaintiff in support of his claim and the
reasoning of the learned Judge either for
decreeing the suit or its dismissal. The Civil
Procedure Code does not say that the Court is
bound to grant a decree in case the defendant is
absent. The practice of writing a judgment
indicating that the defendant was exparte and as
such the claim was proved and the suit was
decreed, deserves to be Condemned.”(Emphasis
Supplied)
17. The appeal before the Division Bench was one
against an order refusing to set aside an exparte decree filed
under Order 43 Rule 1 (d) of the Code of Civil Procedure. The
Division Bench went on to set aside the judgment and decree
solely on the ground that it is not in conformity with the
provisions of the Code of Civil Procedure. The Division Bench
had also concluded that such judgments and decrees which
show total non-application of mind on the part of the Trial
Court will have to be set aside.
https://www.mhc.tn.gov.in/judis/
C.R.P.(N.P.D) No.602 of 2016 &
C.R.P.(N.P.D) No. 510 of 2018
18. I therefore, have no hesitation to invoke the
powers under Article 227 of the Constitution of India, to set
aside the judgment and decree dated 17.07.2009 made in the
suit viz., OS No.2 of 2008 on the file of the IInd Additional Sub
Court, Villupuram. The Civil Revision Petition is therefore
allowed. Consequently, the connected miscellaneous petition is
closed."
(vi)CRP.(NPD).No.4324 of 201-Shanthimalai Trust Vs
Arunachala Education and Environment and others, the relevant
paragraphs are extracted here under:
"32. The learned Subordinate Judge in his report has
stated that counsels for either side have been taking time on
the ground that the Writ Petition is pending in this Court. I am
therefore of the considered opinion that this is a fit case where
the powers of this Court under Article 227 of the Constitution
of India, will have to be exercised to put the suit back on track,
so that the rights of the contesting parties are determined at
the earliest. No doubt the Hon’ble Supreme Court has pointed
out that there is an alternative remedy available in a Civil
Court under the Code of the Civil Procedure, the High Court
shall not ordinarily exercise its powers under Article 227 of
the Constitution of India.
https://www.mhc.tn.gov.in/judis/
C.R.P.(N.P.D) No.602 of 2016 &
C.R.P.(N.P.D) No. 510 of 2018
34. I do not think the observations of the Hon’ble
Supreme Court extracted above would be taken to mean that
there is a total bar on the exercise of jurisdiction under Article
227 by the High Courts in cases where a remedy is available
under the Code of Civil Procedure. Even the Hon’ble Supreme
Court has only said that the availability of a remedy under the
provisions of the Code of Civil Procedure may have to be
construed as a near total bar. The Hon’ble Supreme Court has
not totally debarred the High Courts from exercising their
power under Article 227 in appropriate cases, if the High
Court feels that the Trial Court has failed in its duty. I find that
the Trial Court in the case on hand has not only passed a
wholly illegal exparte decree, but it has shirked its
responsibility in disposing of the applications for condonation
of delay in seeking to set aside the exparte decree within a
reasonable time by merely adjourning the proceedings without
showing any sense of responsibility.
35. For all the foregoing reasons, I have no
hesitation in setting aside the exparte decree dated 28.04.2009,
in exercise of my power under Article 227 of the Constitution
of India. The very fact that the exparte decree came to be
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C.R.P.(N.P.D) No.602 of 2016 &
C.R.P.(N.P.D) No. 510 of 2018
passed within 30 days of the institution of the suit is by itself a
reason to set aside the exparte decree."
10. The Hon'ble Division Bench and the learned single judge of
this Court in a number of cases had set aside the exparte judgment and
decree solely on the ground that it is not in conformity with the provisions
of the Code of Civil Procedure.
11. The judgment, which does not contain the bare minimum
facts, the point for determination, the evidence adduced and the application
of those facts and evidence for deciding the issue would not qualify it to be
called as ''judgment''. Further the practice of writing a judgment indicating
that the defendant called absent and set as ex-parte and as such the claim
was proved and the suit was decreed, deserves to be condemned and it
should not be followed by the trial Court.
https://www.mhc.tn.gov.in/judis/
C.R.P.(N.P.D) No.602 of 2016 &
C.R.P.(N.P.D) No. 510 of 2018
12. The above judgment is not satisfactory and unreasoned
judgement passed by the Court below is cryptic and it is ex-facie illegal. The
Court below while considering the petition to condone delay in set aside the
ex-parte decree, must also take this into consideration. It is also relied upon
in the judgment reported in 2019 7 SCC 359 in the case of Robin Thopa Vs
Rohit Dora and the relevant paragraph is extracted hereunder:-
8. Ordinarily, a litigation is based on adjudication
on the merits of the contentions of the parties. Litigation
should not be terminated by default, either of the plaintiff or
the defendant. The cause of justice does require that as far as
possible, adjudication be done on merits.
13. The Order XX Rule 4 CPC would clearly state that the
judgement of the Court shall contain a concise statement of the case, the
points for determination, the decision there on and the reasons for such
decision. Therefore, the above judgment passed by the Court below does
not conform with these requirements as provided under Order XX Rule 4
CPC and does not reflect the issues involved in the present case.The
judgment passed by the Court below is cryptic, without following the
procedure as contemplated under Section 2(9) of CPC.
https://www.mhc.tn.gov.in/judis/
C.R.P.(N.P.D) No.602 of 2016 &
C.R.P.(N.P.D) No. 510 of 2018
14. In sofar as the delay is concerned that the suit is filed for
declaration and as such the trial Court considered the delay petition in a
liberal manner and it has to be decided on merits. The petitioner
categorically stated that she was living in her parents house and was not
residing in the address given in the plaint. Her husband also died on
06.11.2002. Thereafter, she came to the suit property and received notice in
the Execution Petition. Therefore, she could not appear before the trial
Court. Further, the length of delay is no matter and sufficiency of the
explanation is the relevant criteria. This Court finds that the ex-parte
judgment passed by the trial Court is not in consonance with Order 20 Rule
4(ii) of CPC. Therefore, this Court has no hesitation to invoke the powers
under Article 227 of the Constitution of India to set a side the exparte
judgement and decree dated 27.10.2000 passed by the Principal Sub Judge,
Puducherry.
15. In view of the above, CRP (NPD) No. 602 of 2016 is
allowed, on condition that the petitioner shall deposit the advance amount of
a sum of Rs.1,00,000/- with interest at the rate of 12% p.a till today namely
https://www.mhc.tn.gov.in/judis/
C.R.P.(N.P.D) No.602 of 2016 &
C.R.P.(N.P.D) No. 510 of 2018
Rs.3,52,000/- in the suit account, within a period of two weeks from the
date of receipt of a copy of this order, failing which the order shall
automatically cancelled. On such deposit, the exparte decree dated
27.10.2000 is set aside and the sale deed dated 10.03.2004 registered vide
Document No.1862 of 2004 is set aside. Thereafter, the Trial Court is
directed to dispose of the suit, within a period of three months.
16. In view of the order passed in CRP (NPD) No.602 of 2016,
no adjudication is required in CRP (NPD) No.510 of 2018, which is
accordingly closed. Consequently, connected Miscellaneous Petitions are
closed. No order as to costs.
01.04.2021
lpp
Index:Yes/No
Internet:Yes/No
Speaking Order: Yes/No
To
The Principal Sub Judge,
Puducherry
https://www.mhc.tn.gov.in/judis/
C.R.P.(N.P.D) No.602 of 2016 &
C.R.P.(N.P.D) No. 510 of 2018
G.K.ILANTHIRAIYAN.J,
lpp
CRP (NPD) No. 602 of 2016 &
CRP (NPD) No. 510 of 2018
and
CMP No.3208 of 2016 &
CMP Nos.2618 & 2619 of 2018
01.04.2021
https://www.mhc.tn.gov.in/judis/
