Madras High Court
M.Jayachitra vs A.Elumalai on 28 January, 2022
CRP(NPD)No.133 of 2022
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 28.01.2022
CORAM:
THE HONOURABLE MR.JUSTICE R.SUBRAMANIAN
CRP(NPD)No.133 of 2022 and
CMP.No.728 of 2022
M.Jayachitra ... Petitioner
Vs
A.Elumalai ... Respondent
Prayer: Civil Revision Petition filed under Article 227 of the Constitution of
India, against the fair and Decreetal Order dated 30.07.2014 in O.S.No.4971
of 2013, on the file of the XIX Additional City Civil Court, Chennai.
For Petitioner :Mr. David Tyagaraj
ORDER
Challenge in this revision is to the decree made in O.S.No.4971 of
2013 dated 30.07.2014. The suit in O.S.No.4971 of 2013 was launched by
the respondent seeking partition and separate possession of his half share in
the suit property. Contending that he along with one Mr.Mani purchased the
suit property under a sale deed dated 26.02.1988, the said Mani had sold his
half share in favour of one Mr.Gajendiran under a sale deed dated
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CRP(NPD)No.133 of 2022
23.03.1990, who in turn sold the same to the defendant in the suit, petitioner
herein, on 19.09.1996 a decree for partition was sought for. The defendant
did not file a written statement. Therefore, she was set exparte. PW1 was
examined and Exs.A1 to A4 were marked. Exs.A1 to A3 are the three sale
deeds referred to above. Ex.A4 is the letter from the Assistant Accounts
Officer, Tamil Nadu Electricity Board. The learned trial Judge had passed
the judgment which reads as follows:
'This suit is filed by the plaintiff for preliminary decree of
partition regarding ½ share of the plaintiff in the suit schedule
property. Evidence of P.W.1 and exhibits A1 to A4 perused. Ex.A1 is
the Sub-Registrar office copy of sale deed dated 26.02.1988 executed
by Vastala Gopala Krishnan in favour of this plaintiff and one Mani.
Ex.A2 is the Sub-Registrar Office copy of sale deed executed by Mani
in favour of one Gajendiran regarding ½ share in the suit schedule
property. Ex.A3 is the Sub-Registrar office copy of sale deed dated
20.09.1996 executed by Gajendiran in favour of jeyachitra who is the
defendant herein regarding ½ share in the suit schedule property.
Ex.A4 is the xerox copy of letter from Assistant Accounts Officer,
Tamil Nadu Electricity Board to the plaintiff and Mani. Oral and
documentary evidence produced by the plaintiff do prove the case of
plaintiff. Hence preliminary decree is passed in favour of the plaintiff
regarding ½ share in the suit schedule property accordingly prayer
“a” is decree as prayed for with cost. Regarding prayer “b” plaintiff
has been given liberty to proceed under Order XX Rule 12 of Civil
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CRP(NPD)No.133 of 2022
Procedure Code.'
2.Treating this as an exparte decree, the petitioner filed I.A.No.4
of 2014 seeking to set aside the exparte decree. The same came to be
dismissed for default on 27.06.2014. An application in I.A.No.176 of 2015
was filed by the petitioner seeking condonation of delay of 467 days in
seeking restoration of I.A.No.4 of 2014. The said I.A. came to be dismissed
by the trial Court and a revision as against that order in CRP.No.2117 of
2017 met with the same fate. Thereafter, the petitioner has now chosen to
come up with this Civil Revision Petition contending that the judgment
rendered on 30.07.2014 does not meet the requirements of law and
therefore, it has to be set aside.
3.Mr.David Tyagaraj, learned counsel appearing for the petitioner
would place heavy reliance upon the Division Bench judgment of this Court
in Meenakshisundaram Textiles vs. Valliammal Textiles Ltd. reported in
2011 (3) CTC 168 and a judgment of mine in Ramachandran and others vs.
Balakrishnan and others reported in 2020 (6) CTC 843 to contend that the
judgment pronounced in the suit on 30.07.2014 is not a judgment within the
meaning of Order 41 Rule 31 of the Code of Civil Procedure. He would
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CRP(NPD)No.133 of 2022
point out that the learned trial Judge had not discussed the evidence, but had
chosen to grant a decree. Therefore, according to the learned counsel, the
decree has to be set aside.
4.No doubt, the Division Bench had held that even an exparte
judgment must give reason and should show semblance of application of
mind. I have also reiterated the same position of law in Ramachandran and
others vs. Balakrishnan and others cited supra. A reading of the judgment
which has been passed in O.S.No.4971 of 2013 shows that the learned trial
Judge has considered the evidence offered by the plaintiff. He has considered
the three sale deeds and he has come to the conclusion that in view of the
first sale deed dated 26.02.1988, the plaintiff would be entitled to half share.
An exparte decree or exparte judgment can be passed at various stages of the
same suit. The defendant may remain exparte from the earliest stage, even
without filing a defence or the defendant may remained exparte after filing a
written statement. If the defendant files his written statement, then a duty is
cast upon the Court to consider the defence even while passing an exparte
decree, but at the same time, when the defendant remains exparte even
without filing a written statement the Court cannot be expected to assume a
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CRP(NPD)No.133 of 2022
defence and consider the same. When no written statement is available, the
Court has to consider only the plaint averments and the evidence.
5.In my considered opinion, the trial Court has just done that the
trial Judge has considered the evidence of the plaintiff and in the absence of
any contra evidence has accepted the evidence of the plaintiff and granted a
preliminary decree. I do not think that this judgment could be questioned
under Article 227 of the Constitution of India on the ground that it does not
satisfy the requirements of law. The minimum requirements have been
satisfied and therefore, I do not find any reason to entertain this revision, the
civil revision petition therefore fails and it is dismissed. It is made clear that
the dismissal of this revision or the dismissal of the application for seeking
to set aside the exparte decree will not preclude the petitioner from
challenging the decree in an appeal, if so advised. No costs. Consequently,
connected miscellaneous petition is closed.
28.01.2022
vs
Index: No
Speaking order
R.SUBRAMANIAN, J.
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CRP(NPD)No.133 of 2022
vs
To:
1.The XIX Additional City Civil Court,
Chennai.
2.The Section Officer,
VR Section,
Madras High Court, Chennai.
CRP(NPD)No.133 of 2022 and
CMP.No.728 of 2022
28.01.2022
https://www.mhc.tn.gov.in/judis
