Madras High Court

Ramasamy vs Sivabakiyavathi on 3 February, 2022

                                                                        C.R.P(NPD)No.167 of 2022
                                                                         and CMP.NO.918 of 2022

                                  IN THE HIGH COURT OF JUDICATURE AT MADRAS
                                                DATED: 03.02.2022
                                                      CORAM:
                                  THE HONOURABLE MR.JUSTICE R.SUBRAMANIAN
                                            C.R.P(NPD).No.167 of 2022
                                                      and
                                               CMP.No.918 of 2022


                     Ramasamy                                                    ..Petitioner

                                                       Vs.

                     1.Sivabakiyavathi

                     2.Suresh Kumar

                     3.Dhanalakshmi

                     4.S.K.Balasubramaniyam

                     5.Chellamal

                     6.Manthiri Kumar

                     7.The District Collector,
                       Tiruchengode Road, Namakkal.

                     8.The Thasildar,
                       Padamudipalayam,
                       Paramathi Velur Taluk,
                       Namakkal District.

                     1/17


https://www.mhc.tn.gov.in/judis
                                                                               C.R.P(NPD)No.167 of 2022
                                                                                   and CMP.NO.918 of 2022




                     9.The District Revenue Officer,
                       National Highways Authority of India,
                       District Collector Officer Campus,
                       Namakkal District.
                     ..Respondents


                     Prayer: Civil Revision Petition filed under Article 227 of the Constitution of
                     India, seeking direction to take the unnumbered application in IA.Sr.No.762A
                     of 2017 in OS.No.1 of 2011 on the file of the Additional District Judge,
                     Namakkal.


                                           For Petitioner     : Mr.R.Ezhilarasan




                                                        ORDER

This revision is against an order of the Trial Court, returning a

petition filed under Order 9 Rule 13 of C.P.C., as not maintainable, since the

judgment in the suit was pronounced, invoking Order 10 Rule 4 of C.P.C.

Considering the fact that the order challenged is one, returning an application

without numbering, notice to the respondents is deemed unnecessary.

https://www.mhc.tn.gov.in/judis C.R.P(NPD)No.167 of 2022 and CMP.NO.918 of 2022

2.The respondents 1 to 3 filed a suit in OS.No.1 of 2011, seeking

declaration of their title of the suit properties, recovery of possession,

injunction restraining the defendants from alienating the properties,

declaration that the 1st defendant is not the grand son (son's son) of

Karuppayammal, for measuring the suit properties and to fix the boundaries,

for refund of the compensation that has been received by the 1st defendant and

for other reliefs.

3.The defendants filed a written statement. PW1 was examined in

chief. The defendants did not choose to cross-examine. The learned Trial

Judge, decreed the suit on 23.12.2016. While decreeing the suit, the learned

Trial Judge made a statement that the suit is decreed under Order 10 Rule 4

of C.P.C. Soon thereafter, an application was filed by the petitioner, seeking

to set aside the decree treating it as an exparte decree on 20.01.2017. The

said application was returned with an endorsement that it is not maintainable,

since the judgment was passed under Order 10 Rule 4 of C.P.C. Though the

same was attempted to be represented, the learned Additional District Judge,

https://www.mhc.tn.gov.in/judis C.R.P(NPD)No.167 of 2022 and CMP.NO.918 of 2022

by endorsement dated 10.12.2019 returned it again, stating that previous

return has not been complied with. Thereafter, it appears that the petitioner

preferred an appeal against a decree with an petition for condonation of delay,

which came to be dismissed by this Court.

4.After dismissal of the said petition seeking condonation of dealy,

the petitioner has come up with this revision, invoking supervisory

jurisdiction of this Court under Article 227 of the Constitution of India,

seeking to set aside the return endorsement made by the learned Additional

District Judge and for a direction to the Additional District Judge to number

the application. Since I find that the action of the learned Additional District

Judge in passing a decree under Order 10 Rule 4 itself is incorrect and it

amounts to abuse of the process of Court, I entertain this revision under

Article 227 of the Constitution of India.

5.The power to grant a decree under Order 10 Rule 4 is

circumscribed by Order 10 Rule 2 and Sub-rule 1 of Rule 4 of Order 10 of

https://www.mhc.tn.gov.in/judis C.R.P(NPD)No.167 of 2022 and CMP.NO.918 of 2022

C.P.C. Order 10 Rule 2 of C.P.C., enables the Court to put questions to the

party or the pleader or a person accompanying the pleader at the first hearing

of the case. Order 10 Rule 3 requires the Court to reduce the substance of

such examination in writing and declares that it shall form part of the record

in the suit. Order 10 Rule 4 sets out of consequence of refusal or inability of

the pleader to answer the questions. Order 10 Rule 4 of C.P.C., reads as

follows:-

“4.Consequence of refusal or inability of pleader to answer.-

(1)Where the pleader of 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 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.”

6. A very reading of the provision would show that the power to

https://www.mhc.tn.gov.in/judis C.R.P(NPD)No.167 of 2022 and CMP.NO.918 of 2022

pronounce judgment conferred on the Court under Sub-rule 2 of Rule 4 of

Order 10 cannot be invoked unless the requirements of Sub-rule 1 of Rule 4

of Order 10 are satisfied. Sub-rule 1 of Rule 4 of Order 10 provides that if

the pleader of 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 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 such party to appear in person on such day. The requirements of Rule

4 are:-

i) The Court must have put certain questions to the pleader or the

party or a person accompanying the pleader at the first hearingof the suit.

ii) There must be a refusal or failure to answer such question put by

the Court.

iii) The Court must have been given an opportunity to the person to

appear within seven days from the date of first hearing.

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7.It is only in cases where the above requirements are complied

with, can the Court resort to Rule 2 and pronounce judgment against the

party. A judgment or order pronounced without satisfying all the above

requirements cannot be one udner Sub-rule 2 of Rule 4 of Order 10 of CPC.

What is first hearing of the suit is not no longer res-integra. This Court had in

R.C.Sundaravalli Vs. T.D.Shakila reported 2002 (1) CTC 33 held that the

first hearing means, hearing of a suit for settlement of issues, and any

adjournment there of. Hon'ble Justice Prabha Sridevan after considering the

use of the word “first hearing” at various places in the C.P.C held that the first

hearing of the suit may extend to any date until the issues are actually settled.

8.In the case on hand, it is seen from the records that the issues had

been settled earlier and therefore, the suit was not posted for first hearing on

the day, on which, the judgment came to be passed by the learned Trial Judge.

The Hon'ble Supreme Court in 2010 (4) CTC 865 had also dealt with the

phrase 'first hearing' and the requirements that should be met to enable Court

https://www.mhc.tn.gov.in/judis C.R.P(NPD)No.167 of 2022 and CMP.NO.918 of 2022

to pronounce judgment against a party under Sub-rule 2 of Rule 4 of Order 10

of CPC. The Hon'ble Supreme Court had held that examination contemplated

under Order 10 Rule 2 cannot be a substitute to a regular examination on

oath.

9.It is evident in the case on hand that the judgment passed by the

Trial Court on 23.12.2016 cannot be termed as one under Order 10

Rule 4(2), even though the learned Additional District Judge has expressly

stated that it is one under Order 10 Rule 4 of C.P.C. If the requirements of

Order 10 Rule 2 or Sub-rule 1of Rule 4 of Order 10 are not satisfied, then the

judgment passed would not be one under Sub-rule 2 of Rule 4 of Order 10.

It can be termed as a judgment on merits so as to prevent the defendant from

treating it as an exparte judgment and seeking to set aside the same invoking

Order 9 Rule 13, only if the explanation to Rule 2 of Order 17 could be

invoked. Explanation to Rule 2 of Order 17 requires the evidence or

substantial portion of the evidence of a party, who fails to appear to be on

record in order to enable the Court to proceed on merits in the absence of a

https://www.mhc.tn.gov.in/judis C.R.P(NPD)No.167 of 2022 and CMP.NO.918 of 2022

party. The scope of Rule 2 of Order 17 is also no longer res-integra. This

Court as well as the Hon'ble Supreme Court have repeatedly held that unless

the evidence of the party, who fails to appear is on record, the Court cannot

proceed on merits invoking the explanation of Order 17 Rule 2. In the case

on hand, it could be seen that the case was posted for cross-examination of

the plaintiff and the defendant did not appear. It was open to the Court to

have proceeded any of the modes provided under Order 9. Invocation of

Order 10 Rule 4 is clearly out of context and beyond the powers of the

learned Additional District Judge.

10. Let us now consider the maintainability of the application under

Order 9 Rule 13 in such circumstances. A judgment or decreed could be said

to be on merits only if it satisfies the requirements of the explanation to Order

17 Rule 2 namely, the evidence or substantial portion of the party, who fails

to appear is already on record. Otherwise, it has tobe treated as an exparte

decree only. Sub-rule 2 of Rule 4 of Order 10 is a provision, which enables

the Court to pronounce judgment against a party for default of the party

https://www.mhc.tn.gov.in/judis C.R.P(NPD)No.167 of 2022 and CMP.NO.918 of 2022

namely, a party being unable to answer a question put by the Court or the

party failing to appear before the Court to answer a question to be put by a

Court. Similarly, Order 8 Rule 10 of C.P.C., empowers the Court to

pronounce judgment against a party, if the party fails to file a written

statement. So the sweep of the provisions namely, Order 8 Rule 10 and

Order 10 Rule 4(2) are identical that is to enable the Court to pass a judgment

against a party for default of the party.

11. If the Court passes a judgment against a party for default of a

party, what would be the nature of such judgment, can the defauling party

treated it as an exparte judgment and invoke Order 9 to have it set aside?

This question came up for consideration before this Court in N.Jayaraman

Vs. M/s.Glaxo Laboratories India Ltd., reported in 94 LW Page 362

wherein, Hon'ble Justice. V.Ratnam after examination of the provisions of the

Order 8 Rule 10, Order 9 Rule 6 and Order 9 Rule 13 of C.P.C., concluded

that even in a case where a decree was granted for a default of a party under

Order 8 Rule 10, such decree would still be an exparte decree, which could

https://www.mhc.tn.gov.in/judis C.R.P(NPD)No.167 of 2022 and CMP.NO.918 of 2022

be set aside under Order 9 Rule 13. In doing so, it was held as follows:-

“ 4. The question that arises. therefore. for consideration is.

what is the nature of the decree passed by the court in the instant case on 28-7-1978. The judgment given by the court has already been extracted. That does not indicate that the court applied its mind to the claim made by the petitioner in the suit and after considering such evidence as was made available by the Petitioner, proceeded to afford relief to the petitioner. A Perusal of the judgment would indicate that it was the result of a mere mechanical application of the provisions of Order 8. Rule 10 C. P. C. It is necessary to point out that the judgment does not even conform to the requirements of the definition of a 'judgment' under Section 2(9) C. P.C., which requires that the judgment should contain the grounds for a decree or order. In the present case no ground as such for entertaining the claim of the petitioner and affording relief to him has been mentioned in the decree or the order pronounced by the court. The judgment in the present case does not satisfy the requirements of Section 2(9) C. P. C. and cannot. therefore, be held to be a judgment on the merits of the case. The judgment as well as the decree passed in the present case clearly establish that they were, also passed for default of appearance of the respondent and in its absence and by not even examining the evidence, if any, on behalf of the Petitioner. In other words. the adjudication is one sided and in favour of the petitioner for the failure of the respondent to file its

https://www.mhc.tn.gov.in/judis C.R.P(NPD)No.167 of 2022 and CMP.NO.918 of 2022

written statement on that day. It is the substance of the court's action and adjudication that matters and not the label appended to it. The requirement under Order 8 Rule 10 C. P. C. to pronounce a judgment against the party who fails to present a written statement does not indicate that the need for writing a judgment is dispensed with and that a mechanical one sided order should be made by the court without applying its mind. It therefore follows that in, the present case there has been no judgment on the merits. but only a decree against the respondent owing to its failure to file a written statement. The provision in 0. 8, R. 10, C. P. C. is not new. though certain changes have been made therein by Act 104 of 1976. The words “is required under Rule 1 or Rule 9" “permitted or fixed by the court as the case may be, the court shall” and “and on the Pronouncement of such judgment a decree shall be drawn up” have been inserted therein by the amending Act 104 of 1976. The inclusion of the words “and on the Pronouncement of such judgment a decree shall be drawn up” does not really throw any light upon the nature of the decree so drawn up, as in every case when a judgment is pronounced. it should be followed by a decree. Nor the introduction of the words “permitted or fixed by the court, as the case may be the court shall” indicate anything with reference to the nature of the adjudication made by applying the Provisions of Order 8. Rule 10 C. P. C. The insertion of the words “is required under Rule I or Rule 9" was only to clear up a doubt

https://www.mhc.tn.gov.in/judis C.R.P(NPD)No.167 of 2022 and CMP.NO.918 of 2022

entertained whether the Procedure under Order 8, Rule 10 C P. C: can be invoked in case of a failure to file a written statement under Order 8, Rule 9 C. P.C. only or would cover also cases falling under Order 8. Rule I C.P.C. and this also does not throw any light on the nature of the decree Passed as a result of the application of Order8, Rule 10 C. P.C. The considerable reliance Placed by the learned counsel for the petitioner upon the changes brought about by Act 104 of 1976 in the language of Order 8. Rule 10 C. P.'C. cannot, therefore. advance his contention that the decree Passed in the Present case is one on merits.”

12.Useful reference could also be made to the judgment inAIR

1945 Mad. 299 wherein, a Hon'ble Division Bench of this held that a decree

passed under Order 8 Rule 10 could be deemed to be a decree passed exparte

and can be set aside in an application under Order 9 Rule 13. In doing so, the

Division Bench has observed as follows:-

"We are accordingly of opinion that the learned Judge had no jurisdiction to pronounce judgment under Rule 10 against the appellant. In so far, therefore as he must be deemed to have done so, his decree will be set aside, and it will be deemed to be a decree passed against the appellant because the appellant was ex parte.” (Emphasis Supplied)

https://www.mhc.tn.gov.in/judis C.R.P(NPD)No.167 of 2022 and CMP.NO.918 of 2022

13.The reasoning, upon which a decree passed under Order 8 Rule

10 is deemed to be an exparte decree, which could be set aside under Order 9

Rule 13 would equally apply to a decree passed under Order 10 Rule 4(2) of

C.P.C. also. I have already concluded that the decree passed by the Trial

Court on 23.12.2016 cannot be saidto be one passed under Order 10 Rule

4(2) in as much as it does not comply with the requirements of either Rule 2

of Order 10 or Sub-rule 1 or Rule 4 of Order 10. Even otherwise or even

assuming that it is a judgment passed under Order 10 Rule 4(2) it could be

set aside, invoking Order 9 Rule 13 of C.P.C.

14.The judgment of this Court in N.Jayaraman Vs. M/s.Glaxo

Laboratories India Ltd., was followed by the Kerela High Court in AIR 1988

Kerela 304 wherein, it was held that a decree passed under Order 8 Rule 10

for failure to file written statement would still be a exparte decree, which

could be set aside under Order 9 Rule 13 of C.P.C. Therefore, it is clear that

the learned Trial Judge was not justified in returning the application

https://www.mhc.tn.gov.in/judis C.R.P(NPD)No.167 of 2022 and CMP.NO.918 of 2022

questioning its maintainability, on the ground that the decree that was passed

under Order 10 Rule 4(2).

15.Hence, this civil revision petition is allowed, the impugned

return dated 10.12.2019 made by the Additional District Judge as well as the

previous return are set aside. The Additional District Court is directed to take