Madras High Court
K.Maheshwari vs Mubarak Ali on 17 December, 2021
C.R.P.(MD) Nos.410 and 411 of 2017
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED : 17.12.2021
CORAM
THE HONOURABLE MS.JUSTICE P.T.ASHA
C.R.P(MD)Nos.410 and 411 of 2017
and
C.M.P(MD)Nos.2062 and 2063 of 2017
C.R.P(MD)No.410 of 2017
1.K.Maheshwari
2.S.Krishnamoorthy ... Petitioners
Vs.
1.Mubarak Ali
2.A.Shamshath Begum ... Respondents
PRAYER:- Civil Revision Petition filed under Article 227 of the
Constitution of India, to set aside the fair and decreetal order dated
23.01.2017 passed by the learned II Additional Subordinate Judge,
Tiruchirappalli, in I.A.No.88 of 2017 in O.S.No.51 of 2011.
_________
https://www.mhc.tn.gov.in/judis
C.R.P.(MD) Nos.410 and 411 of 2017
For Petitioners : Mr.K.K.Senthil
For R1 : Mr.M.S.Balasubramania Iyer
For R2 : No appearance
C.R.P(MD)No.410 of 2017
1.R.Sukumar
2.S.Jeyanthi
3.R.Chandrasekar ... Petitioners
Vs.
1.Mubarak Ali
2.A.Shamshath Begum ... Respondents
PRAYER:- Civil Revision Petition filed under Article 227 of the
Constitution of India, to set aside the fair and decreetal order dated
23.01.2017 passed by the learned II Additional Subordinate Judge,
Tiruchirappalli, in I.A.No.88 of 2017 in O.S.No.51 of 2011.
For Petitioners : Mr.J.Barathan
For Respondent : No appearance
_________
https://www.mhc.tn.gov.in/judis
C.R.P.(MD) Nos.410 and 411 of 2017
COMMON ORDER
These civil revision petitions are filed by the defendants 10 to 15
in O.S.No.51 of 2012 on the file of the Second Additional Subordinate
Court, Trichy. CRP(MD) No.410 of 2017 is filed by the defendants 10
and 11 whereas CRP(MD) No.411 of 2017 has been filed by the
defendants 12 to 15. The revision petitioners in both the civil revision
petitions seek to challenge the order passed in I.A.No.88 of 2017.
2.The facts in brief are as follows:-
(i) The second respondent herein namely A.Shamshath Begum had
filed the suit O.S.No.51 of 2011 for a relief of declaration that the deed
of cancellation of the sale deed dated 11.11.2002 is void and for a
permanent injunction restraining the defendants 10 to 15 from putting up
the construction in the suit property and for a mandatory injunction
restraining the defendants 16 and 17 from releasing the sale deed dated
13.12.1998 either in favour of the defendants 1 to 15 or anyone claiming
under them and to pass a decree for partition dividing the suit property by
metes and bounds into 8 shares out of 7/8 shares and allotting 7/96 shares
_________
https://www.mhc.tn.gov.in/judis
C.R.P.(MD) Nos.410 and 411 of 2017
with separate possession to the plaintiffs. The suit was filed in the year
2011.
(ii) The plaintiff's case is that the property belongs to her father
Abdul Rahim who is the husband of defendants 1 and 2 and the father of
the plaintiff and defendants 3 to 9. The defendants 3, 4 and 7 were born
to Abdul Rahim through the first defendant and defendants 5, 6, 8 and 9
and plaintiff were born to Abdul Rahim through second defendant. The
Abdul Rahim had purchased the property from one Adaikalaraj on
13.04.1988. After the purchase of the suit property her father has been in
enjoyment of the same exercising his rights as an absolute owner.
He had mortgaged the property to the Park Town Benefit Fund Ltd.,
After the death of her father, her brothers led the plaintiff to believe that
they were executing a partition deed and trusting their words she has
signed on the dotted lines. It is only three months back the plaintiff had
come to know truth that the defendants have created a Hiba in favour of
the sixth defendant. That apart the fourth defendant and the third
defendant had colluded to get the deed of cancellation of sale deed,
_________
https://www.mhc.tn.gov.in/judis
C.R.P.(MD) Nos.410 and 411 of 2017
which had been executed in favour of their father Abdul Rahim. Further,
the defendants 10 to 15 have purchased the suit property from the
vendors of the deceased Abdul Rahim. Therefore, the above suit has
been filed by the plaintiff.
(iii) It appears that some of the defendants had filed their written
statement however, the fourth defendant had remained ex parte and an
ex parte order was passed against him. While so, it appears that the
fourth defendant had filed the impugned petition to set aside the ex parte
order against him by filing I.A No.88 of 2017 under the provisions of
Order 9 Rule 7 and Section 151 of CPC.
(iv) The fourth defendant had only impleaded the plaintiff as the
respondent in this application and no notice of this application had been
served on the other defendants. The plaintiff had endorsed no objection
to the said petition and by order dated 23.01.2017, the application was
allowed and the written statement filed along with the application was
taken on file. It is challenging this order that the petitioners are before
this court.
_________
https://www.mhc.tn.gov.in/judis
C.R.P.(MD) Nos.410 and 411 of 2017
3.The learned counsel for the revision petitioners would submit
that the learned Judge has totally overlooked the provision of Article 137
of the Limitation Act as well as Rules 29 and 31 of Civil Rules of
Practice. Apart from not following procedure contemplated under Order
9 Rule 7 of CPC, the learned counsel would submit that a mere perusal of
the written statement now filed by the fourth defendant would clearly
demonstrate that the fourth defendant is colluding with the plaintiff.
They would submit that after keeping quite for six years the first
respondent has come forward with the impugned application. He would
rely on the judgment reported in 2008 4 CTC 162 in the case of
Thangavel Pillai Vs Periysamy Udayar, in which this Court was
considering the issue of notice in the proceedings under the provision of
Order 9 Rule 4 and 9 of CPC. He would also draw the attention of this
Court to Rule 31 of the Civil Rules of Practice, which clearly provides
that where an interlocutory application has been filed, notice of the same
shall be issued to all parties in a suit. He would contend that in the
instant case, such notice has not been given and the other defendants
have not been made as parties to the proceedings.
_________
https://www.mhc.tn.gov.in/judis
C.R.P.(MD) Nos.410 and 411 of 2017
4.Mr.M.S.Balasubramania Iyer, learned counsel appearing for the
first respondent in C.R.P(MD) No.410 of 2017 would submit that the
provisions of Order 9 Rule 11 CPC clearly provides that when there are
more than one defendant and one of them does not appear, he has the
time till the pronouncement of the judgment to appear and show cause.
He would further argue that the question of setting aside an ex parte
order is purely between the plaintiff and the defendants and the other
defendants have nothing to do with said application. However, once the
order is set aside and the written statement is filed by the said defendant,
the others could file an additional written statement. He would therefore
submit that the order passed by the learned Judge is in order and does not
require reconsideration.
5.Heard the learned counsel on either side and perused the records.
6.The only bone of contention in the above civil revision petition
is that the other defendants have been kept in the dark about this
interlocutory application and the application has been ordered without
_________
https://www.mhc.tn.gov.in/judis
C.R.P.(MD) Nos.410 and 411 of 2017
notice to the revision petitioner and other defendants. The provision for
setting aside the ex parte order against the defendants is provided under
Order 9 Rule 7 CPC, wherein it is stated that where the Court has
adjourned the hearing of the suit ex parte and the defendant, at or before
such hearing, appears and assigns good cause for his previous
non-appearance. The Court may either permit him to appear or put him
on terms and fix a date for his appearance. The provision does not make
any mention about the defendant not appearing for several hearings after
being set ex parte and filing an appeal to set aside the ex parte order.
7.The learned counsel appearing on the side of the plaintiff would
invoke the provision of Order 9 Rule 11 of CPC to state that till the date
of the pronouncement of the judgment, the defendant, who has been
set ex parte, can seek to have the ex parte order set aside. The
provisions of Order 9 Rule 11 CPC is herein below extracted:-
“11.Procedure in case of non-attendance of one or more
of several plaintiffs:- Where there are more plaintiffs than
one, and one or more of them appear, and the others to not
appear, the Court may, at the instance of the plaintiff or
_________
https://www.mhc.tn.gov.in/judis
C.R.P.(MD) Nos.410 and 411 of 2017
plaintiffs appearing, permit the suit to proceed in the same
way as if all the plaintiffs had appeared, or make such order
as it thinks fit.”
8.A reading of Order 9 Rule 11 which is extracted herein above,
does not make out such an interpretation. The provision of Order 9 Rule
11, when read along with the provision of Order 9 Rule 10 which relates
to the procedure in case of the non-attendance of one or more plaintiffs,
would show the clear distinction. In the case of the procedure for the
non-attendance by one or more plaintiffs, the Code of Civil Procedure
provides that the Court may, at the instance of the plaintiffs appearing,
permit the suit to proceed in the same way, as if all the plaintiffs had
appeared, or make such order as it thinks fit. However, a similar
language is not provided for in Order 9 Rule 11. On the contrary, the
provision would indicate that where one or more defendants do not
appear, the suit shall proceed and at the time of pronouncing judgment
the Court is free to make such order as it deems fit with regard to the
defendant, who had remained ex parte. When a defendant does not
appear on the appointed date, Order 9 Rule 7 clearly provides that he
shall be set ex parte.
_________
https://www.mhc.tn.gov.in/judis
C.R.P.(MD) Nos.410 and 411 of 2017
9.Coming to the provision of Rule 31 of the Civil Rules of Practice
and the same reads as follows:-
31.Notice:-
(1) Unless the court otherwise orders, notice of an
interlocutory application shall be given to the other
parties to the suit or matter or proceeding or their
pleader not less than three days before the day
appointed for the hearing of the application.
(2) Such notice shall be served on the pleader,
whenever the party appears by such pleader;
(3) Notice of the application may be served on a
party not appearing by pleader by registered post,
acknowledgement prepaid, to the address given in the
pleading and in the event of its non-service on the party
or the party not appearing on the day fixed in the notice,
the Court may direct that the notice shall be delivered or
sent to the proper officer to be served by him or by one
of his subordinate on the party. If the party be absent or
refused to receive the notice, the procedure prescribed in
rule 15 or 17 or Order V of the Code, as the case may be
shall be followed.
A reading of the said rule clearly indicates that notice has to be issued to
_________
https://www.mhc.tn.gov.in/judis
C.R.P.(MD) Nos.410 and 411 of 2017
all the parties in a suit in the case of an interlocutory application.
However, such notice can be dispensed with provided the Court gives
reasons for the same which is clearly evident from the words “unless the
Court otherwise orders”. Admittedly, in the instant case, neither has the
fourth defendant impleaded all the defendants nor has the Court issued
notice to other defendants. Therefore, this order is in violation of the
Rules.
10.Therefore, these Civil Revision Petitions are allowed and the
order dated 23.01.2017 passed in I.A.No.88 of 2017 is set aside and the
matter is remitted back to the learned Second Additional Subordinate
Judge, Thiruchirapalli, who shall direct the petitioners to issue notice to
all the parties and hear the parties and thereafter pass orders. No costs.
Consequently, connected miscellaneous petitions are closed.
17.12.2021
Index:Yes/No
Internet:Yes/No
cp
_________
https://www.mhc.tn.gov.in/judis
C.R.P.(MD) Nos.410 and 411 of 2017
P.T.ASHA, J.
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 II Additional Subordinate Judge,
Tiruchirappalli.
C.R.P(MD)Nos.410 and 411 of 2017
and
C.M.P(MD)Nos.2062 and 2063 of 2017
17.12.2021
_________
https://www.mhc.tn.gov.in/judis
