Madras High Court
K.Paramasivam vs K.Deivalingam on 22 February, 2021
CRP.PD.No.298 of 2021
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 22.02.2021
CORAM
THE HON'BLE MR. JUSTICE G.K.ILANTHIRAIYAN
CRP.PD.No.298 of 2021 and
CMP.No.2644 of 2021
K.Paramasivam ..Petitioner
Vs.
1.K.Deivalingam
2.P.R.Kuppusamy ..Respondents
PRAYER:
The Civil Revision Petition is filed under Article 227 of the
Constitution of India against the fair and decreetal order dated
06.11.2020 passed in IA.No.261 of 2018 in OS.No.185 of 2012 on the
file of the Additional District Judge, Namakkal.
For Petitioner : Mr.R.Marudhachalamurthy
For Respondents : Mr.I.Abrar MD Abdullah
ORDER
This civil revision petition is arising out of fair and decreetal
order dated 06.11.2020 passed in IA.No.261 of 2018 in OS.No.185 of
2012 on the file of the Additional District Judge, Namakkal thereby
allowing the petition filed to set aside the dismissal of the main suit and
restore the same.
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CRP.PD.No.298 of 2021
2. The petitioner is the defendant in the suit filed for partition. The
petitioner filed written statement and the matter was posted for trial. The
respondent filed his proof affidavit and marked documents. When the matter
was posted for cross examination on several occasions, the respondent failed to
appear before the trial court and as such the suit was dismissed under Order 10
Rule 4 of CPC. Aggrieved by the same, the respondent filed petition to restore
the suit under Order 9 Rule 9 of CPC and the same was allowed, Aggrieved by
the same, the petitioner come forward with the present civil revision petition.
3. The learned counsel for the petitioner would submit that when the
matter was specifically posted for cross examination of respondent on several
hearings and the respondent failed to appear before the trial court. Therefore,
the trial court specifically recorded the reasons and dismissed the suit under
Order 10 Rule 4 of CPC. When the trial trial court dismissed the suit, the
respondent can only file appeal suit as against the judgment and decree passed
against him. In stead of that, the respondent filed petition to restore the suit
as if the suit was dismissed for default under 9 Rule 9 of CPC.
3.1 He further submitted that the trial court stated the reasons that
the suit was dismissed under Order 10 Rule 4 of CPC inadvertently. The court
below cannot recall its own order and allow the petition to restore the suit. He
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CRP.PD.No.298 of 2021
relied upon the judgment of this Court passed in CRP.PD.No.2065 of 2016 dated
10.03.2020, wherein this Court relied upon the judgment of this Court in the
case of P.Kumaran and another Vs. V.Ramaswami and others reported in
2015 (4) MLJ 146 and other judgment of the Hon'ble Supreme Court of India in
the case of Rasiklal Manickchand Dhariwal and another Vs. MSS Food
Products reported in (2012) 2 MLJ 595 (SC). He further submitted that when
the trial court posted the matter with specific direction for appearance of
parties and he fails to appear before the trial court, Order 10 Rule 4 (2) of CPC
will directly apply and the trial court initially rightly dismissed the suit under
Order 10 Rule 4 of CPC. While being so, subsequently, the trial court cannot
recall its own order by saying that due to inadvertence, the suit was dismissed
under Order 10 Rule 4 of CPC.
4. Per contra, the learned counsel for the respondents submitted
that Order 10 Rule 4 of CPC is clear that the consequences of refusal or
inability of pleader to answer and as such in the present case, admittedly the
respondent failed to appear before the trial court for his cross examination.
Though the trial court stated that the suit was dismissed under Order 10 Rule 4
of CPC, on perusal of the decree, only on the ground of non appearance of the
respondent it was dismissed. Therefore, Order 10 Rule 4 of CPC is not at all
applicable to the case on hand. Further submitted that Order 17 Rule 2 & 3 of
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CRP.PD.No.298 of 2021
CPC categorically revealed that when the parties fail to appear on the date
fixed, the suit can be dismissed for default. Therefore, the only remedy is that
to file petition for restoration of the main suit. Therefore, he prayed for
dismissal of the civil revision petition.
5. Heard Mr.R.Marudhachalamurthy, the learned counsel for the
petitioner and Mr.I.Abrar MD Abdullah, the learned counsel for the
respondents.
6. The respondent is the plaintiff who filed suit for partition. He
filed proof affidavit and marked documents and thereafter failed to appear
before the trial court for cross examination on several hearings. When the
matter was finally posted for his cross examination on 16.06.2015, he was not
present and as such the suit was dismissed under Order 10 Rule 4 of CPC.
Thereafter the respondent filed petition to set aside the order and also to
restore the suit under Order 9 Rule 9 of CPC. It is relevant to extract provision
under Order 10 Rule 4 of CPC as follows:
"4.Consequence of refusal or inability of pleader to
answer:
(1) Where the pleader or any party who appears by a
pleader or any such person accompanying a pleader as is
referred to in rule 2, refuses or is unable to answer any
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CRP.PD.No.298 of 2021
material question relating to the suit which the Court is of
opinion that the party whom he represents ought to answer, and
is likely to be able to answer if interrogated in person, the
Court may postpone the hearing of the suit to a day not later
than seven days from the date of first hearing and direct that
such party shall appear in person on such day.
(2) If such party fails without lawful excuse to appear in
person on the day so appointed, the Court may pronounce
judgment against him, or make such order in relation to the suit
as it thinks fit."
On plain reading of Order 4 (1) and (2) of CPC envisaged that when the party or
pleader does not able to answer the court, the court can direct that such party
shall appear on such day. If such party fails without lawful excuses to appear in
person on the day fixed by the court, the court can pronounce judgment
against him under Order 10 Rule 4 of CPC.
7. In the case on hand, admittedly the respondent failed to appear
before the trial court for his cross examination on several hearings. When the
matter was posted for cross examination as final chance, the court dismissed
the suit. Though the trial court dismissed the suit under Order 10 Rule 4 of CPC
as stated above, Order 10 Rule 4 of CPC is not at all applicable for the
dismissal of the suit on the ground of non appearance of the respondent before
the trial court. The learned counsel for the petitioner relied upon the judgment
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CRP.PD.No.298 of 2021
in the case of P.Kumaran and another Vs. V.Ramaswami and others
reported in 2015 (4) MLJ 146, wherein it is held as follows:
"20.From the reading of the dictum laid down in the
above judgments, it could be seen that there is a clear
distinction between the dismissal of the suit for default of
appearance and decision dismissing the suit for other kinds
of default. If the suit is dismissed for default of appearance
of the plaintiff, the application to set aside filed under Order
9 can be entertained. In the instant case, the suit was
dismissed not on the reason for default of appearance of the
plaintiffs. The suit was dismissed by the learned Single
Judge for non-filing of the proof affidavit by the plaintiff as
directed by the First Bench of this Court within a stipulated
time. Therefore, the nature of order passed by the Court will
fall within the ambit of deciding the suit in terms of
language of Order 17 Rule 3 of C.P.C. Since the order of
dismissal dated 07.11.2014 is not based on the non-
appearance of the plaintiffs, but based on the other kind of
default, namely, non- filing of proof affidavit as directed by
the First Bench of this Court, the submission made by the
learned counsel for the applicants/plaintiffs that the order
passed by the learned Single Judge has to be construed as if
the order has been passed adopting any one of the modes
under Order IX of C.P.C, cannot be accepted. Therefore, the
application filed by the applicants/plaintiffs to set aside the
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CRP.PD.No.298 of 2021
order of dismissal dated 07.11.2014 under Order IX Rule 7
of C.P.C. is not maintainable. The proper remedy for the
applicants/plaintiffs is only to file an appeal as against the
order of dismissal of the suit dated 07.11.2014. Hence, the
present application is liable to the dismissed. "
The Hon'ble Supreme Court of India clearly held that if the suit is dismissed for
default of the appearance of the plaintiff, the application to set aside filed
under Order 9 of CPC can be entertained. Further held that in the instance
case, the suit was dismissed not on the reason of default of the appearance of
the plaintiff. The suit was dismissed by the learned Judge for non filing of the
proof affidavit by the plaintiff as directed by the First Bench of this Court
within a stipulated time.
8. Therefore, it is very clear that when the suit was dismissed for
non appearance of the party, then the application to set aside under Order 9
Rule 9 of CPC can be entertained. As such, the respondent rightly filed petition
under Order 9 Rule 9 of CPC to restore the suit which was dismissed for his non
appearance for his cross examination. Therefore, this Court finds no infirmity
or illegality in the order passed by the court below.
9. Accordingly, this civil revision petition is dismissed. However,
considering that the suit is of the year 2012, the trial court is directed to
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CRP.PD.No.298 of 2021
complete the trial within a period of six months from the date of receipt of
copy of this order. Consequently, connected miscellaneous petition is closed.
No order as to costs.
22.02.2021
Speaking/Non-speaking order
Index : Yes/No
Internet : Yes/No
lok
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CRP.PD.No.298 of 2021
To
The Additional District Judge,
Namakkal.
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CRP.PD.No.298 of 2021
G.K.ILANTHIRAIYAN,J.
lok
CRP.PD.No.298 of 2021
22.02.2021
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