Madras High Court
R.Bramma Krishna Raja Rajeswari vs Mahdhoom Bakrutheen on 1 December, 2021
C.R.P.(MD) No.2203 of 2018
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED : 01.12.2021
CORAM
THE HONOURABLE MS.JUSTICE P.T.ASHA
C.R.P(NPD)(MD)No.2203 of 2018
R.Bramma Krishna Raja Rajeswari
Through her Power Agent K.Rajangam
... Petitioner
Vs.
Syed Mohammed Bakrutheen (died)
1.Mahdhoom Bakrutheen
2.Bhilal Abdullah
3.Sulaiha Beevi Bakrutheen
4.Ayisha Fathima Bakrutheen
5.Kathija Rahima Bakrutheen ... Respondents
PRAYER:- Civil Revision Petition filed under Section 115 of Code of
Civil Procedure, to set aside the fair order and decreetal order passed in
I.A.No.217 of 2014 in O.S.No.1 of 2008 on the file of the Sub Court,
Ramanathapuram, dated 24.07.2018 and allow this civil revision petition.
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C.R.P.(MD) No.2203 of 2018
For Petitioner : Mr.C.Vakeeswaran
For Respondents : Mr.A.Arumugam
ORDER
The defendant, who has filed an application for condoning the
delay of 1810 days in filing the petition to set aside the ex parte decree
passed in O.S.No.1 of 2008, is the petitioner before this Court, since her
application has been dismissed by the learned Subordinate Judge,
Ramanathapuram.
2.The respondents had filed a suit in O.S.No.01 of 2008 on the file
of the Subordinate Court, Ramanathapuram, for declaration that the
plaintiffs is the absolute owner of the suit schedule property and also for
permanent injunction. It appears that the petitioner/ defendant though
served, had not entered appearance and therefore, an ex parte decree
came to be passed on 16.03.2009. The petitioner/defendant has come
forward with the impugned petition stating that she came to know about
the ex parte decree only when she had received the notice in I.A.No.34 of
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C.R.P.(MD) No.2203 of 2018
2014 in R.C.O.P.No. 5 of 2014. It is her categoric case that she had not
received any summons in the above proceedings either through Court or
privately from the respondents. The learned Judge, without appreciating
as to whether summon has been properly taken, set the defendant ex
parte and passed the ex parte decree and the petitioner has come before
the Court as soon as she had knowledge about the ex parte decree.
3.The respondents/plaintiffs had filed the counter statement
inter alia denying the contention made in the petition for condonation of
delay and stated that the summon issued to the last known residence has
been returned as the door was locked. The summon issued through the
court amina is affixed as the door locked and the summon issued through
post was returned as not claimed. Thereafter, the Court had directed the
respondents/plaintiffs to effect substituted service and accordingly, paper
publication was taken and the respondents was set ex parte.
4.The learned Subordinate Judge on hearing both the counsel
proceeded to dismiss the said application stating that the petitioner has
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C.R.P.(MD) No.2203 of 2018
not questioned the address shown in the suit and further even in the
petition to restore the suit which was earlier dismissed for default,
namely I.A.No.180 of 2008, the petitioner/defendant could not be
served. The learned Judge took a view that the delay has not been
properly explained. Hence, the petition was dismissed. Challenging the
same, the petitioner is before this Court.
5.Heard the learned counsel appearing on either side and perused
the records.
6.A reading of the ex parte judgment dated 16.03.2009 passed in
O.S.No.1 of 2008 by the learned Subordinate Judge, Ramanathapuram,
has startled this Court and the ex parte judgment has been filed in the
form of proof affidavit. This statement in the vernacular, reads as
follows:-
“xU jiygl;r jPh;g;g[iu g[Ug; mtpltpl;lhf jhf;fy;
bra;ag;gl;lJ.”
That apart, the judgment does not conform to the provision of the Code
of Civil Procedure which prescribes that the Court shall give reasons for
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C.R.P.(MD) No.2203 of 2018
its finding on each of the issue framed and its ultimate conclusion. The
Honourable Supreme Court and this Court had time and again held that
even in an ex parte proceeding, the learned Judge has to frame issues
and give his finding on each of the issues and only then, would it
constitute a judgment. In the instant case, not only the judgment is
bereft of detail, but the learned Subordinate Judge has also stated that the
judgment has been filed by the petitioner in the form of proof affidavit.
7.In these circumstances, this Court not only sets aside the order
passed in I.A.No. 217 of 2014 to condone the delay of 1809 days, but
also sets aside the ex parte decree passed in O.S.No.1 of 2008 by the
learned Subordinate Judge, Ramanathapuram. The learned Subordinate
Judge, Ramanathapuram shall dispose of the suit in O.S.No.1 of 2008
within a period of four months from the date of receipt of a copy of this
order after giving an opportunity to the petitioner herein to submit her
written statement. The written statement shall be filed within a period of
two weeks from the date on which the learned Subordinate Judge takes
the suit once again on file.
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C.R.P.(MD) No.2203 of 2018
P.T.ASHA, J.
cp
8.In the result, this Civil Revision Petition is allowed. No costs.
01.12.2021
Index :Yes/No
Internet :Yes/No
cp
Note : In view of the present lock down owing to
COVID-19 pandemic, a web copy of the order may
be utilized for official purposes, but, ensuring that
the copy of the order that is presented is the correct
copy, shall be the responsibility of the
advocate/litigant concerned.
To:-
The Subordinate Judge,
Ramanathapuram.
C.R.P(NPD) (MD)No.2203 of 2018
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