Madras High Court
K.Krishnan vs S.Baburajan on 4 January, 2022
C.R.P.(NPD) (MD) Nos.1410 & 1411 of 2021
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 04.01.2022
CORAM:
THE HONOURABLE MS.JUSTICE P.T.ASHA
C.R.P.(NPD) (MD) Nos.1410 & 1411 of 2021
and
C.M.P.(MD) Nos.7963 & 7964 of 2021
C.R.P.(NPD) (MD) No.1410 of 2021 :-
1.K.Krishnan
M.Vellaiammal (Died)
2.M.Rajendran
3.M.Manoharan
4.M.Meenammal
5.S.Ilanchiyam
6.R.Kalaiselvi
7.R.Packialakshmi .. Petitioners/Respondents 1, 3 to 8
/Plaintiffs 1, 3 to 8
-vs-
1.S.Baburajan
2.B.Mary .. Respondents 1 & 2/
Petitioners/Defendants 1 & 2
3.V.Thulasi
4.C.Vargheese
5.S.Joseph
6.Mehartaj
7.Jahara Begam
8.Selvamary
9.Balomi .. Respondents 3 to 9/
Respondents 9 to 15/Defendants 3 to 9
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C.R.P.(NPD) (MD) Nos.1410 & 1411 of 2021
Prayer :- Petition filed under Section 115 Civil Procedure Code to set
aside the fair and executable order dated 08.04.2021 passed in the
application in I.A.No.510 of 2019 in O.S.No.686 of 2004 on the file of
the District Munsif Court, Madurai Taluk at Madurai.
C.R.P.(NPD) (MD) No.1411 of 2021 :-
1.K.Krishnan
M.Vellaiammal (Died)
2.M.Rajendran
3.M.Manoharan
4.M.Meenammal
5.S.Ilanchiyam
6.R.Kalaiselvi
7.R.Packialakshmi .. Petitioners/Respondents 1, 3 to 8
/Respondents 1, 3 to 8/
Plaintiffs 1, 3 to 8
-vs-
1.S.Baburajan
2.B.Mary .. Respondents 1 & 2/Petitioners
Petitioners/Defendants 1 & 2
3.V.Thulasi
4.C.Vargheese
5.S.Joseph
6.Mehartaj
7.Jahara Begam
8.Selvamary
9.Balomi .. Respondents 3 to 9/Respondents
9 to 15/Respondents 9 to 15/
Defendants 3 to 9
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C.R.P.(NPD) (MD) Nos.1410 & 1411 of 2021
Prayer :- Petition filed under Section 115 Civil Procedure Code to set
aside the fair and executable order dated 08.04.2021 passed in the
application in I.A.No.62 of 2021 in I.A.No.510 of 2019 in O.S.No.686 of
2004 on the file of the District Munsif Court, Madurai Taluk at Madurai.
For Petitioners : Mr.J.Barathan
(In both CRPs)
For RR1 & 2 : Mr.N.GA.Natraj,
(In both CRPs) for Mr.Ganagasapabathy
For RR5, 7 & 8 : No appearance
(In both CRPs)
******
COMMON ORDER
(Heard through Video Conferencing)
Since both the revisions arise out of a common suit, a common
order is being passed in these revisions.
2. C.R.P.(NPD) (MD) No.1410 of 2021 is filed challenging the
order dated 08.04.2021 passed in I.A.No.510 of 2019 in O.S.No.686 of
2004.
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C.R.P.(NPD) (MD) Nos.1410 & 1411 of 2021
2.1. C.R.P.(NPD) (MD) No.1411 of 2021 is filed challenging the
order dated 08.04.2021 in I.A.No.62 of 2021 in I.A.No.510 of 2019 in
the very same suit. Both the orders are passed by the learned District
Munsif, Madurai Taluk, Madurai.
3. For the sake of convenience, the parties shall be referred to as
per their rank in the suit.
4. I.A.No.510 of 2019 was filed by defendants 1 and 2 to set aside
the ex-parte decree passed against them on 04.07.2018.
4.1. I.A.No.62 of 2021 was filed by defendants 1 and 2 seeking
suitable orders, as both sets of respondents, viz., respondents 1 to 8
(plaintiffs) and respondents 1 to 7 (defendants 3 to 9) are the necessary
parties in I.A.No.510 of 2019.
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C.R.P.(NPD) (MD) Nos.1410 & 1411 of 2021
5. The brief facts are as follows:-
5.1. The plaintiffs in the suit in O.S.No.686 of 2004 had sought for
a declaration that the suit schedule property belonged to them and for a
permanent injunction restraining the defendants from interfering with
their peaceful possession and enjoyment of the same.
6. The case of the plaintiffs was that the schedule mentioned
property viz., a larger extent of 8.73 acres in R.S.No.1/2, originally
belonged to one K.Subbiah Konar, who had sold it to R.Kandasamy
Thevar under a registered Sale Deed dated 19.09.1968. R.Kandasamy
Thevar, in turn, sold portions of the property to various persons and
retained an extent of 2.73 acres. The purchasers had also further
transferred the lands purchased to other persons. In the year 1982-83, the
1st plaintiff and his brother, K.Mani had purchased the entire extent of 8
acres and 73 cents from various purchasers. The 1st plaintiff and his
brother K.Mani were cultivating the lands and had been granted patta by
the Revenue Department. The plaintiffs have title to the property not
only by virtue of the sale, but also by reason being in possession of the
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C.R.P.(NPD) (MD) Nos.1410 & 1411 of 2021
lands for over so many years and having perfected title to the same. The
1st defendant is a real estate agent and defendants 2 to 4 are his close
relatives and friends. Some real estate agents approached the 1st plaintiff
for purchasing the schedule land in order to convert the same into
housing plots and selling it to third parties. The 1 st plaintiff flatly refused
the suggestion. Enraged by this proposal, defendants 1 to 4 have
colluded and created forged sale deeds.
7. The plaintiffs would submit that the defendants have no right to
the suit property. Since a cloud has been created over the title, the
plaintiffs had come forward with the suit.
8. The 1st defendant had filed a written statement denying the
allegations contained in the plaint. The 1st defendant would submit that
the entire documents referred to by the plaintiffs are all fabricated one
and the sale deeds in favour of the plaintiffs does not contain details
about the predecessors in title. He would submit that the property
belonged to one Sesu Iyer, whose ownership had been declared under the
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C.R.P.(NPD) (MD) Nos.1410 & 1411 of 2021
Inam Abolition Act. Subbiah Konar, who was his Manager in the year
1956, taking advantage of his position, appears to have created various
fraudulent documents. The 1st defendant would therefore, submit that the
suit deserves to be dismissed.
9. A reply statement denying the contentions raised by the 1st
defendant in his written statement has also been filed by the 1st plaintiff.
10. The suit was decreed in favour of the plaintiffs by judgment
and decree, dated 04.07.2018 by the learned District Munsif, Madurai
Taluk, Madurai.
11. It appears that defendants 1 to 5 and 7 to 9 had entered
appearance and the written statement filed by the 1st defendant was
adopted by defendants 2, 3 and 4 and likewise, the written statement filed
by the 7th defendant was adopted by defendants 5, 8 and 9, however, they
have failed to cross examine the plaintiffs' side witness and were
therefore, set ex-parte. However, a detailed judgment came to be passed.
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C.R.P.(NPD) (MD) Nos.1410 & 1411 of 2021
12. Thereafter, defendants 1 and 2 have filed I.A.No.510 of 2019
to set aside the ex-parte judgment and decree dated 04.07.2018. The
application has been filed on 23.07.2018. In the affidavit filed in support
of the said application, the petitioners/defendants 1 and 2 have stated that
the 1st defendant had sustained injuries in an accident for which, he has
been visiting Kerala for treatment. It was in these circumstances, he was
not in a position to contact his Advocate to give him necessary
instructions for the cross examination. Thereafter, when he visited his
counsel on 20.07.2018, he came to know about the ex-parte judgment
and decree. Immediately, steps have been taken to file an application to
set aside ex-parte judgment and decree. Defendants 1 and 2 would
submit that the delay is neither wilful nor wanton.
13. A detailed counter has been filed by the plaintiffs, who had
been arrayed as respondents 1 to 8 in the said application. In the
application to set aside the ex-parte decree, not only the defendants have
impleaded the plaintiffs, but have also impleaded defendants 3 to 9 as
respondents 1 to 7.
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C.R.P.(NPD) (MD) Nos.1410 & 1411 of 2021
14. The plaintiffs had opposed the said application stating that
defendants 1 and 2 are only attempting to protract the proceedings. They
had also pointed out the fact that the defendants had struck off the names
of plaintiffs 3 to 8 and therefore, they have not made out any grounds to
set aside the ex-parte judgment and decree. Since the plaintiffs had
brought to the notice of the Court about the striking off plaintiffs 3 to 8
from the array of parties, defendants 1 and 2 had come forward with an
application in I.A.No.62 of 2021 to rectify the said defect and to permit
the substitution of the plaintiffs, who had been struck off. This
application was also objected to by the plaintiffs.
15. The learned District Munsif, Madurai Taluk, Madurai, after
hearing both the applications, was pleased to order the same.
Challenging the same, the plaintiffs are before this Court as revision
petitioners.
16. Heard the learned counsel on either side.
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C.R.P.(NPD) (MD) Nos.1410 & 1411 of 2021
17. Apart from questioning the orders, the learned counsel for the
plaintiffs would submit that suit may be transferred to the file of some
other Court in Madurai to which request, the learned counsel for
respondents 1 and 2 has no objection.
18. Perusal of the records would show that the application to set
aside the ex-parte judgment and decree has been filed within a period of
19 days from the date of the ex-parte judgment and decree. Adequate
reasons have also been given for the same. Therefore, the order of the
learned District Munsif, Madurai Taluk, Madurai, dated 08.04.2021 in
allowing the application in I.A.No.510 of 2019 cannot be found fault
with and therefore, C.R.P.(NPD) (MD) No.1410 of 2021 is dismissed.
19. As regards, I.A.No.62 of 2021, the very application is filed in
order to rectify the mistake which had been pointed out by the plaintiffs
in their counter to I.A.No.510 of 2019. Therefore, the plaintiffs cannot
find fault with the said order. Therefore, C.R.P.(NPD) (MD) No.1411 of
2021 is also dismissed.
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C.R.P.(NPD) (MD) Nos.1410 & 1411 of 2021
20. However, this Court has taken note of the fact that the learned
counsel for the petitioners seeks transfer of the suit from the District
Munsif, Madurai Taluk, Madurai, to the Principal District Munsif,
Madurai Town, Madurai. This Court does not intend to discuss the
reasons for seeking the transfer, as respondents 1 and 2 have no objection
to the same.
21. Therefore, the suit in O.S.No.686 of 2004 is transferred to the
file of the Principal District Munsif, Madurai Town, Madurai, who shall
dispose of the same within a period of two months from the date of
receipt of records from the learned District Munsif, Madurai Taluk,
Madurai. Direction is also issued to the learned District Munsif, Madurai
Taluk, Madurai, that the entire records both material as well as non-
material relating to the suit shall be transferred to the file of the Principal
District Munsif, Madurai Town, Madurai, within a period of 10 days
from the date of receipt of a copy of this order.
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C.R.P.(NPD) (MD) Nos.1410 & 1411 of 2021
22. In the result, both the Civil Revision Petitions are dismissed.
However, there shall be no order as to costs. Consequently, connected
miscellaneous petitions are closed.
04.01.2022
Index : Yes/No
Speaking/Non-Speaking Order
abr
Note:-
In view of the present lock down owing
to COVID-19 pandemic, a web copy of
the order may be utilized for official
purposes, but, ensuring that the copy of
the order that is presented is the correct
copy, shall be the responsibility of the
Advocate / litigant concerned.
To
1.The District Munsif Court,
Madurai Taluk, Madurai.
2.The Principal District Munsif Court,
Madurai Town, Madurai.
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C.R.P.(NPD) (MD) Nos.1410 & 1411 of 2021
P.T.ASHA, J.
abr
C.R.P.(NPD) (MD) Nos.1410 & 1411 of 2021
Dated: 04.01.2022
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