Madras High Court
Kumaresan vs Kavitha on 7 April, 2022
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 07.04.2022
CORAM
THE HONOURABLE Ms. JUSTICE P.T. ASHA
C.M.A. No.523 of 2021
and
C.M.P.No.3342 of 2021
Kumaresan ... Appellant
Vs.
1.Kavitha
2.Divyabharathi ... Respondents
PRAYER: Civil Miscellaneous Appeal filed under Order 43 Rule 1 (c) of
the Code of Civil Procedure, 1908 against the fair and final order dated
09.03.2020 made in I.A.No.593 of 2018 in I.A.No.208 of 2016 in
O.S.No.93 of 2015 on the file of the III Additional District Court, Salem.
For Appellant : Mr.T.Murugamanickam,
Senior Counsel
for Ms.Zeenath Begum
For Respondents : Mr.K.Premkumar
JUDGMENT
Aggrieved by the dismissal of his application, seeking to set aside the
ex-parte order passed against the appellant herein in I.A.No.208 of 2016 in
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O.S.No.93 of 2015, the second defendant is the appellant before this court.
2. The facts in brief are as follows:
The respondents 1 and 2 are the plaintiffs in the suit O.S.No.93
of 2015 and they are the wife and daughter of a pre-deceased brother of the
appellant herein, one Jeeva @ Jeevanantham. They had filed the suit for
partition and separate possession against the appellant herein and three
others viz., the mother and sisters of the appellant herein, claiming the share
of Jeeva @ Jeevanantham in the suit schedule property. It is their case that
the properties are the joint family properties of A.P.Raman, the father of the
appellant herein and his pre-deceased brother Jeeva @ Jeevanantham. They
would submit that on the death of Jeeva @ Jeevanantham on 03.09.2014 his
share devolved around the legal heirs of the respondents herein. Since the
appellant herein and his mother had not come forward to execute a partition,
they had come forward with the suit.
3. The defendants 3 and 4, the sisters of the appellant herein had filed
their written statements inter-alia contending that they are also entitled to a
share in the property and that each of them i.e., the plaintiffs were entitled
https://www.mhc.tn.gov.in/judis
one share, the appellant herein to one share and the second and third
defendants to one share each.
4. The appellant herein inturn had filed a written statement denying
the claim of the plaintiffs. Meanwhile the plaintiffs had also filed an
application for appointing a receiver to take over possession of the suit
schedule property with powers of management, protection and preservation
and for collection of rents and profits thereof and to deposit the same into
the Court. This application was sworn and signed by the first respondent
herein on 27.01.2016. An endorsement had been made that notice had been
received by the respondents 2 and 3 on 23.03.2016.
5. Thereafter the learned Judge had been adjourning the matter for
counter and ultimately, since no counter was filed, a receiver has been
appointed by order dated 05.01.2017. It appears that the first advocate who
was appointed as a receiver had expressed his unwillingness and a second
receiver was appointed on 12.09.2018 by order of the Court.
https://www.mhc.tn.gov.in/judis
6. On 13.11.2018 the appellant has come forward with an application
for setting aside the ex-parte order passed in I.A.No.208 of 2016 by filing
I.A.No.593 of 2018. In the said affidavit, the appellant has stated that no
notice of this petition has been given to the appellant and the first defendant
in the Suit as well as his mother, who had died on 01.12.2015. After the
death of his mother, relatives had advised the parties to amicably settle the
disputes to which the respondents were amenable too. However, the
respondents did not come forward to workout a settlement. In the third week
of July 2018, the appellant herein had fallen ill and was therefore unable to
meet his counsel though he had planned to meet the counsel for proper
instruction for the suit earlier. It was only when the counsel had called him
two days prior to Deepavali, stating that a receiver has been appointed and
that he was going to visit the property on 05.11.2018 and that he had come
to know about the order appointing a receiver. Therefore, he has come
forward with this application for setting aside the ex-parte order.
7. The application was resisted by the respondents. Along with the
application to set aside the ex-parte order, the appellant herein had also filed
a counter in I.A.No.208 of 2016 and his written statement. The respondent
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had resisted I.A.No.593 of 2018 by stating that the appellant herein had
come forward with a false case and that the pleadings in the application was
absolutely false. The respondents would contend that they have been
starving for their livelihood. The application has been filed only after giving
notice to the appellant herein and only after giving sufficient time. The
learned Judge had allowed the application for appointing a receiver.
8. The learned III Additional District Judge, Salem by his order dated
09.03.2020 has dismissed the application in I.A.No.593 of 2018 stating that
the reasons given in the application for setting aside the ex-parte order is
insufficient and was made with a mala-fide intention to drag on the
proceedings. The learned Judge had observed that notice had been served on
the appellant on 23.03.2016 and therefore the basis on which the application
has been filed is absolutely false and the application came to be dismissed.
Challenging the same, the appellant is before this Court.
9. Mr.T.Murugamanickam, learned Senior Counsel appearing on
behalf of the appellant herein would contend that the endorsement made on
23.03.2016 about the receipt of notice and the time taken for filing of
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counter is an endorsement which has not been made by the appellant herein
or his counsel. He would indicate that initially this application has been
filed only against three defendants viz., the appellant herein and the
defendants 3 and 4. Therefore, the endorsement that the counsel for
defendants 2 and 3 had taken notice only indicates that defendants 3 and 4
had received it as the array of parties originally showed only the appellant
and the two sisters and thereafter the mother has been added as the first
respondent after which there was a corresponding change in the ranking .
He would further submit that a speaking order has not been received by
them in I.A.No.208 of 2016, which is the application in which the receiver
had been appointed. In fact, the appellant had made a copy application for
which the office of the III Additional District Judge, Salem is yet to give
him the fair and decreetal order. He would submit that the Presiding Officer
has now changed. This statement has not been seriously refuted by the
learned counsel appearing for the respondents since he has also not obtained
the certified copy of the order in I.A.No.208 of 2016 i.e., order dated
05.01.2017. The application in question i.e., I.A.No.208 of 2016 is not
supported by a speaking order.
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10. Further, the learned III Additional District Judge, Salem has
dismissed the application to set aside the ex-parte decree only on the ground
that the appellant herein had been set ex-parte and a receiver had been
appointed on 05.01.2017. Considering the fact that the very order is not
available for the scrutiny of the Court and the parties to the lis, interests of
justice require that I.A.No.593 of 2018 be allowed and the ex-parte order
passed against the appellant herein in I.A.No.208 of 2016 be set aside
considering the fact that there is no speaking order. Therefore, the order
passed in I.A.No.208 of 2016 is set aside, since the respondents' counsel has
also not been able to produce the copy of the fair order since such fair order
has not been passed in the said case.
11. Accordingly, this Civil Miscellaneous Appeal is allowed and the
order passed in I.A.No.208 of 2016 in O.S.No.93 of 2015 by the III
Additional District Judge, Salem on 09.03.2020 is set aside on hearing both
the parties. No costs. Consequently, the connected Civil Miscellaneous
Petition is closed.
07.04.2022
Index : Yes/No
Speaking Order : Yes / No
ab
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To
1. The III Additional District Court, Salem.
2.The Section Officer,
VR Section, Madras High Court,
Chennai.
https://www.mhc.tn.gov.in/judis
P.T. ASHA, J,
ab
C.M.A. No.523 of 2021
and
C.M.P.No.3342 of 2021
07.04.2022
https://www.mhc.tn.gov.in/judis
