Madras High Court
Union Of India Owning vs Kursheed Unnisa on 27 September, 2021
S.A.No.1039 of 2009
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 27.09.2021
CORAM
THE HONOURABLE MRS. JUSTICE R.HEMALATHA
S.A.No.1039 of 2009
Union of India owning
Southern Railway Rep. by its General Manager,
Park Town, Chennai - 600 003. ...Appellant
Vs.
1.Kursheed Unnisa
2.Banumathi
3.Badrunnisa
4.Mustaq
5.Adakar
6.Noorjahan
7.Badrunnissa
8.Mustaq ... Respondents
Prayer: Second Appeal filed under Section 100 of CPC, 1908 against the
decree and judgment dated 23.12.2003 passed in A.S. No.205 of 2002,
on the file of the V Additional City Civil Court, Chennai, upholding the
decree and judgment dated 27.01.1999 passed in O.S. No.2876 of 1993,
on the file of the XV Assistant City Civil Court, Chennai.
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S.A.No.1039 of 2009
For Appellant : Mr.Vijay Anand
For Respondents : No appearance
JUDGMENT
The appellant, Union of India represented by its General
Manager, Southern Railways, Chennai, is the second defendant in
O.S.No.1197 of 1985 and fifth defendant in O.S.No.2876 of 1993 on the
file of XV Assistant City Civil Court, Chennai. He has filed the present
appeal against the concurrent judgments passed by both the Courts
below.
2. The facts of the case in nutshell as follows:
One M.H.A.Khader was employed with the present appellant
and he died while in service. The plaintiffs Noorjahan and her children
filed O.S.No.1197 of 1985 before the XV Assistant City Civil Court,
Chennai, for a declaration that they are the legal heirs of the deceased
M.H.A.Khader and also for a consequential relief of permanent
injunction restraining the present appellant from disbursing the amounts
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S.A.No.1039 of 2009
due and payable to the deceased M.H.A.Khader to any person other than
the plaintiffs. The suit was decreed ex parte on 27.11.1989 and
subsequently, on a petition filed under Order IX Rule 13 Code of Civil
Procedure by one Kursheed Unnisa, the first defendant, the suit was
restored to file. In the mean while, the said Kursheed Unnisa also filed
O.S.No.2876 of 1993 before the XV Assistant City Civil Court,
Chennai, for a declaration that she is the legally wedded wife of the
deceased M.H.A.Khader and that the present appellant should not
disburse the amount to any person other than her. After setting aside the
ex parte decree passed in O.S.No.1197 of 1985, both the suits, viz.,
O.S.No.1197 of 1985 and O.S.No.2876 of 1993 were tried together. By a
common judgment dated 27.01.1999, the learned XV Assistant Judge,
City Civil Court, Chennai, dismissed the suit in O.S.No.1197 of 1985
and decreed the suit in O.S.No.2876 of 1993.
3. Aggrieved over the same, the present appellant filed
A.S.No.205 of 2002 before the V Additional Judge, City Civil Court,
Chennai on the ground that since the amounts were already disbursed to
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S.A.No.1039 of 2009
the plaintiffs in O.S.No.1197 of 1985, based on the ex parte decree they
cannot once again be directed to pay the amount in favour of the plaintiff
in O.S.No.2876 of 1993. The learned V Additional Judge, City Civil
Court, Chennai, after analysing the evidence on record and the findings
of the trial Court, dismissed the appeal filed by the present appellant.
Aggrieved over the same, now the present second appeal is filed by the
appellant.
4.Notice of motion was ordered and after several adjournments,
the matter is posted today for final hearing.
5. Mr.Vijay Anand, learned counsel appearing for the appellant
contended that since based on the ex parte decree passed in O.S.No.1197
of 1985, amounts were already disbursed in favour of the plaintiffs in
O.S.No.1197 of 1985, both the Courts below should not have directed
them to disburse the amount to the plaintiff Khursheed Unnisa in
O.S.No.2876 of 1993.
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S.A.No.1039 of 2009
6. The deceased M.H.A.Khader was employed as a Senior
Booking Clerk in the Southern Railways, Chennai (appellant herein), and
he died on 31.03.1983 while in service. After his demise, there were two
rival claimants, for the terminal benefits, one was Noorjahan @
Banumathi, Badrunnisa, Mustaq, Adakar (since deceased) and the other
one is Kursheed Unnisa. While Noorjahan @ Banumathi claimed to be
the legally wedded wife of the deceased M.H.A.Khader, Kursheed
Unnisa also claimed that she is the legally wedded wife of the deceased
M.H.A.Khader. In fact, Noorjahan @ Banumathi was the nominee as
per the service records of the deceased. The appellant / Union of India
represented by its General Manager, Southern Railways, Chennai,
directed both the claimants to settle the issue in a competent Civil Court
and subsequently, based on the ex parte decree passed in O.S.No.1197
of 1985, the appellant disbursed the terminal benefits to Noorjahan @
Banumathi and her three children namely, Badrunnisa, Mustaq, Adakar
(since deceased). Subsequently, ex parte decree was set aside and the
suit was contested. In fact the suit filed by Noorjahan @ Banumathi was
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S.A.No.1039 of 2009
tried along with the suit in O.S.No.2876 of 1993 filed by Kursheed
Unnisa. After full contest, the learned XV Assistant Judge, City Civil
Court, Chennai, declared Kursheed Unnisa, as the legally wedded wife of
the deceased M.H.A.Khader and no appeal was filed by Noorjahan @
Banumathi who is the plaintiff in O.S.No.1197 of 1985 (defendants 1 to
4 in O.S.No.2876 of 1993). On the other hand, the present appellant filed
the appeal before the V Additional Judge, City Civil Court, Chennai, in
A.S.No.205 of 2002 contending that since they had already disbursed the
amount due to the deceased M.H.A.Khader in favour of Noorjahan @
Banumathi and her children as per ex parte decree, the trial Court ought
not to have directed them to disburse the amount in favour of Kursheed
Unnisa. The First Appellate Court dismissed the appeal filed by the
present appellant on the ground that the appellant immediately after the
setting aside of the ex parte decree in O.S.No.1197 of 1985, should have
issued a notice to the plaintiffs in O.S.No.1197 of 1985 to refund the
amounts back to them and that in the absence of any such steps being
taken by the appellant, they cannot maintain the appeal.
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S.A.No.1039 of 2009
7. The main apprehension of the appellant is that since they
have already paid the amount to Noorjahan @ Banumathi and her
children based on the ex parte decree of the trial Court and now that the
final orders of the Trial Court being in favour of one Kursheed Unnisa,
they are not in a position once again to disburse the amount which was
already paid by them. Order IX Rule 13 Civil Procedure Code provides
for setting aside the ex parte decree in case the defendant satisfies the
Court that there is sufficient cause for his non-appearance on the date of
hearing. The defendant against whom ex parte decree is ordered has two
options viz., (1) file application under Order IX Rule 13 Civil Procedure
Code and (2) file an appeal under Section 96 (2) of Civil Procedure
Code. As against the order of setting aside the ex parte decree, neither
the plaintiffs in O.S.No.1197 of 1985 or the present appellant filed any
appeal/revision. The appellant was one of the defendants in both the
suits filed before the trial Court. In such circumstances, the plea taken by
the appellant that once payment was made, they cannot be penalised by
directing them again to make payment of the terminal benefits. It has also
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S.A.No.1039 of 2009
been contended by the learned counsel for the appellant that the
disbursement to one of the two claimants was made three years after ex
parte decree and that there has to be a reasonable period upto which ex
parte decrees can be set aside and belated setting aside the ex parte
decree definitely jeopardises interest of the appellant.
8. In such cases of the rival claimants, normally an employer
has to obtain necessary indemnity bond from the beneficiary in whose
favour payment is made in order to indemnify the employer from making
'wrong payment'. The appellant has not clarified on this aspect.
Nevertheless, it is the duty of the employer to comply with the orders of
the Court and this Court does not find any perversity in the orders of both
the Courts below. There is also no substantial question of law involved
in this second appeal and hence, the second appeal deserves to be
dismissed.
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S.A.No.1039 of 2009
9. In the result,
i. the second appeal is dismissed. There shall be no
order as to costs.
ii. the decree and judgment dated 23.12.2003 passed in
A.S. No.205 of 2002, on the file of the V Additional
City Civil Court, Chennai and the decree and
judgment in O.S. No.2876 of 1993, on the file of the
XV Assistant City Civil are upheld.
27.09.2021
Index: Yes/No
Internet: Yes/No
Speaking/Non-Speaking order
mtl
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S.A.No.1039 of 2009
R. HEMALATHA, J.
mtl
To
1.The V Additional City Civil Court, Chennai.
2. The XV Assistant City Civil Court, Chennai.
3. Section Officer, VR Section, High Court, Madras.
S.A.No.1039 of 2009
27.09.2021
https://www.mhc.tn.gov.in/judis/
