Madras High Court
V.Sundar vs R.Sulochana on 23 February, 2021
CRP(PD).No.3811 of 2018
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 23.02.2021
CORAM
THE HON'BLE MR. JUSTICE KRISHNAN RAMASAMY
C.R.P.(PD).No.3811 of 2018
and C.M.P.No.21195 of 2018
1.V.Sundar,
Rep. by his Power Agent,
Mr.R.Veerappan.
2.Thilaka Joseph ...Petitioners
Vs
1.R.Sulochana
2.Doraikabali ... Respondents
(Notice may be dispensed with as
against the 2nd respondent)
Cause title acceppted vide Court
order dated 30.10.2018 made in
C.M.P.No.16201 & 16202 of
2018 in C.R.P.Sr.No.65009 of
2018 (MSRJ)
Prayer Civil Revision Petition filed under Article 227 of the Constitution of
India, prayed to set aside the fair and final order dated 27.03.2018 made in
I.A.No.610 of 2014 in O.S.No.339 of 2012 on the file of the Sub-Court,
Tambaram.
1/7
https://www.mhc.tn.gov.in/judis/
CRP(PD).No.3811 of 2018
For Petitioner : Mr.L.Mouli
For R1 : No Apperance
R2 : Given Up
ORDER
This Civil Revision Petition has been filed against the order dated
27.03.2018 made in I.A.No.610 of 2014 in O.S.No.339 of 2012 on the file of
the Sub-Court, Tambaram.
2.The case of the petitioners is that the petitioners are the plaintiffs in the
suit filed for specific performance. The 2nd respondent/2nd defendant was passed
away. Since the legal heirs of the 2nd respondent could not be traced out and the
relief of specific performance is claimed as against the 1 st respondent, the
petitioners filed the application under Order 22 Rule 4 and Section 151 of CPC
to exempt the petitioners from impleading the legal heirs of the deceased 2 nd
respondent. The Court below dismissed the said application filed by the
petitioners stating that orders cannot be passed to exempt the petitioners from
impleading the legal heirs of the deceased 2 nd respondent since the petitioners
have raised claim along with the 2nd respondent. Aggrieved by the same, the
present Civil Revision Petition has been filed.
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CRP(PD).No.3811 of 2018
3.The learned counsel for the petitioners submitted that the sale
agreement was entered by the 1st respondent with the petitioners and the 2nd
respondent. The petitioners are unable to trace the legal heirs of the deceased 2 nd
respondent and undertakes to implead the legal heirs of the deceased 2nd
respondent when they are able to trace them. He has also filed an affidavit to
that effect.
4.He further submitted that a separate suit was filed by the petitioners in
O.S.No.342 of 2002 and in that suit also the application in I.A.No.85 of 2013
was filed to exempt the petitioners from impleading the legal heirs of the
deceased 2nd respondent and the same was dismissed by the Court below.
Against which, C.R.P.No.2721 of 2015 was filed before this Court and the same
was allowed on 23.12.2020, directing the Trial Court to proceed with the trial
and conclude the same as early as possible.
5.Heard the learned counsel for the petitioners. Though notice has been
served to the 1st respondent and her name is printed in the causelist, none
appeared on behalf of the 1st respondent.
https://www.mhc.tn.gov.in/judis/
CRP(PD).No.3811 of 2018
6.The relevant portion of the order dated 23.12.2020 made in
CRP(NPD).No.2721 of 2015 is extracted hereunder:
“9.The present interlocutory application was filed under
Order XXII Rule IV C.P.C. Therefore, it is necessary to look
into the provisions under Order XXII Rule IV C.P.c., which is
extracted as under:
“The Court whenever it thinks fit, may exempt
the plaintiff from the necessity of substituting the legal
representatives of any such defendant who has failed
to file a written statement or who, having filed it, has
failed to appear and contest the suit at the hearing;
and judgment may, in such case, be pronounced
against the said defendant notwithstanding the death
of such defendant and shall have the same force and
effect as if it has been pronounced before death took
place.”
10.In the present case, the suit was filed in the year
1986. The second defendant is one of the beneficiary to the
sale agreement. Since the second defendant has not shown
any interest to file the suit with the plaintiffs, he was shown as
the second defendant in the suit. Further, he remained exparte
in the suit by not appearing and contesting the suit. It is the
case of the plaintiffs/revision petitioners that the second
defendant/second respondent was set exparte as early as in the
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CRP(PD).No.3811 of 2018
year 1995 and the learned Subordinate Judge, Poonamallee,
while deciding an application in I.A.No.1106 of 1991, has
dispensed with the notice to the second respondent, since he
remained ex parte in the suit. Therefore, the question of
impleading the legal heirs of the deceased 2nd respondent/2 nd
defendant does not arise. Hence, the plaintiffs/revision
petitioners are entitled to get benefits under Order XXII Rule 4
of the Civil Procedure Code.”
7.Upon perusal, it is seen that the sale agreement has been entered
between the petitioners and the 1st respondent. Therefore, the suit has been filed
seeking specific performance as against the 1st respondent. The 2nd respondent
remains exparte in the suit. The petitioners have filed an affidavit undertaking to
implead the legal heirs of the deceased 2 nd respondent when they able to trace
them. As submitted by the learned counsel for the petitioners, in the similar
circumstance, this Court considering the submission of the petitioners has
exempted the petitioners from impleading the legal heirs of the 2nd respondent.
8.In view of the above and considering the undertaking affidavit filed by
the petitioners, this Court is inclined to allow the Civil Revision Petition. The
Court below is directed to proceed with the suit and in future, if the petitioners
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CRP(PD).No.3811 of 2018
filed any application to implead legal heirs of the 2nd respondent, the same shall
be considered.
9.Accordingly, the Civil Revision petition is allowed. No costs.
Consequently, connected miscellaneous petition is closed.
23.02.2021
Index: Yes/No
Internet:Yes/No
Speaking order/Non-speaking order
rst
To:
The Sub-Court, Tambaram.
KRISHNAN RAMASAMY,J.
https://www.mhc.tn.gov.in/judis/
CRP(PD).No.3811 of 2018
rst
C.R.P.(PD).No.3811 of 2018
and C.M.P.No.21195 of 2018
23.02.2021
https://www.mhc.tn.gov.in/judis/
