Madras High Court
Kanagaraj vs A.Lalitha on 20 January, 2022
C.R.P.(PD) (MD) Nos.1515 & 1516 of 2013
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 20.01.2022
CORAM:
THE HONOURABLE MS.JUSTICE P.T.ASHA
C.R.P.(PD) (MD) Nos.1515 & 1516 of 2013
and
M.P.(MD) Nos.1 & 1 of 2013
Kanagaraj .. Petitioner in both CRPs
-vs-
A.Lalitha .. Respondent in both CRPs
Prayer :- Petitions filed under Article 227 of the Constitution of India to
set aside the common order passed in I.A.Nos.809 & 810 of 2011 in
O.S.No.15 of 2005 on the file of the Principal District Munsif,
Kuzhithurai dated 16.07.2013.
In both CRPs
For Petitioner : Mr.C.K.M.Appaji
For Respondent : Mr.K.N.Thampi
******
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C.R.P.(PD) (MD) Nos.1515 & 1516 of 2013
COMMON ORDER
A common order is being pronounced with reference to these two
Civil Revision Petitions, which arise out of two interlocutory
applications filed in the suit in O.S.No.15 of 2005 on the file of the
learned Principal District Munsif, Kuzhithurai.
(i) I.A.No.809 of 2011, against which C.R.P.(PD) (MD) No.1515
of 2013 is filed, relates to the dismissal of the application filed by the
revision petitioner/defendant to set aside the ex-parte decree passed in
the suit on 22.04.2006.
(ii) I.A.No.810 of 2011, against which C.R.P.(PD) (MD) No.1516
of 2013 emanates from an order dismissing the application filed by the
revision petitioner/defendant for condoning the delay of 3 years and 30
days in filing the petition to set aside the ex-parte decree.
2. The following chronology would be useful for appreciating
the issue involved in these revisions:-
2.1. O.S.No.15 of 2005 was filed by the respondent/plaintiff for
specific performance of an agreement of sale dated 06.04.2004. On
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C.R.P.(PD) (MD) Nos.1515 & 1516 of 2013
17.08.2006, O.S.No.15 of 2005 was decreed ex-parte. The defendant
despite summons having been served, had remained ex-parte. On
22.09.2010, I.A.Nos.809 and I.A.No.810 of 2011 were filed to set aside
the ex-parte decree and to condone the delay of 3 years and 30 days in
filing the petition to set aside the ex-parte decree respectively. On
16.07.2017, both the interlocutory applications were dismissed.
C.M.A.No.4 of 2013 was filed by the revision petitioner/defendant
challenging the dismissal of I.A.No.809 of 2011. On 04.09.2013,
C.R.P(PD) (MD) No.1516 of 2013 was filed challenging the order passed
in I.A.No.810 of 2013. On 31.07.2014, C.M.A.No.4 of 2013 was
dismissed, after hearing the arguments of both parties. Simultaneously,
the respondent/plaintiff had initiated execution proceedings for executing
the decree in O.S.No.15 of 2005. The petitioner had filed E.P.No.6 of
2007, which was dismissed for default on 22.08.2008. Thereafter, the
respondent had filed E.P.No.125 of 2008 for a direction to the revision
petitioner/defendant to execute the sale deed failing which seeking a
direction that a sale deed be executed by the Court in favour of the
decree holder/plaintiff. The said execution petition was allowed and sale
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C.R.P.(PD) (MD) Nos.1515 & 1516 of 2013
deed dated 24.11.2009 was executed in favour of the respondent-decree
holder. Thereafter, on 31.03.2010, the execution petition in E.P.No.125
of 2008 was terminated. Thereafter, the respondent had filed E.P.No.57
of 2010 seeking delivery of possession of the suit schedule property. The
said petition was allowed on 08.07.2011 and challenging the same, the
defendant/judgment debtor has filed C.R.P(NPD)(MD) No.1797 of 2012.
Challenging the dismissal of I.A.Nos.809 and 810 of 2011, these civil
revision petitions are filed by the revision petitioner/defendant.
3. Mr.C.K.M.Appaji, learned counsel appearing on behalf of
the petitioner would submit that the ex-parte judgment cannot be
considered a judgment in the eye of law and therefore, this Court should
set aside the ex-parte decree.
4. In response to the argument made by Mr.K.N.Thampi,
learned counsel appearing for the respondent, that the order passed in
I.A.No.809 of 2011 has attained finality by the order in C.M.A.No.4 of
2013, Mr.C.K.M.Appaji, learned counsel would submit that the learned
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C.R.P.(PD) (MD) Nos.1515 & 1516 of 2013
Subordinate Judge, Kuzhithurai had dismissed C.M.A.No.4 of 2013 only
on account of the fact that a representation had been made by both the
counsels that I.A.No.810 of 2011, which was the subject matter of
challenge before this Court, had been dismissed by orders of this Court
and therefore, the order in I.A.No.809 of 2011, which is the subject
matter of the Civil Miscellaneous Appeal should also automatically stand
dismissed.
5. Heard the learned counsels on either side.
6. At the first blush, the argument of Mr.C.K.M.Appaji, learned
counsel for the petitioner appears to be attractive. However, a perusal of
the detailed order passed in C.M.A.No.4 of 2013 clearly indicates that
the judgment is one passed on merits. From paragraph No.12 of the said
judgment, the learned judge has discussed in detail the contentions made
by either parties. The learned Judge has observed that the reasons given
in the affidavit filed in support of the application for setting aside the ex-
parte decree and the evidence adduced clearly show that the defendant
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C.R.P.(PD) (MD) Nos.1515 & 1516 of 2013
had come with a false case and the reasons had not been substantiated by
proof. In the passing, the learned Judge has observed that a
representation has been made that the revision filed against the order in
I.A.No.810 of 2011 had been dismissed and therefore, the appeal should
also be dismissed. However, the learned Judge has not only gone by that
representation, which is evident from the further observation of the
learned Judge, which is extracted hereinbelow:-
“13. ... fPHik ePjpkd;wk; ,Ujug;g[ tha;bkhHp.
Mtz rhl;rpa';fis ed;F ghprPypj;J kDjhUf;F vjpuhf
gpwg;gpf;fg;gl;l xUjiygl;r jPh;g;ghizia uj;J bra;tjw;F
nghJkhd fhuz';fs; ,y;iy vd;W jPh;khdpj;J kDjhuh;
jhf;fy; bra;j I/V/809-11 ,d; mtvz;/15-05 kDit
js;Sgo bra;J cj;jut[ kw;Wk; cj;juthiz
gpwg;gpj;Js;sJ ve;j tifapy; ghh;j;jhYk; rhpjhd;
vd;W ,e;ePjpkd;wk; jPh;khdpf;fpwJ/ fPHik ePjpkd;wk;
gpwg;gpj;j cj;jut[ kw;Wk; cj;juthizapy; jiyapl;L
mjid khw;wp mikf;fnth my;yJ
ePf;fwt[ bra;anth ,e;j nky;KiwaPl;oy; ve;j Kfhhe;jpuKk;
,y;iy vd;nw ,e;ePjpkd;wk; fUJfpd;wJ/ ,J FwpjJ ;
vjph;nky;KiwaPl;lhsh;-vjph;kDjhuh; jug;g[ fw;wwpe;j
tHf;fwp"h; thjk; Vw;ff;Toajhf ,Uf;fpwJ/ ,jw;F
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C.R.P.(PD) (MD) Nos.1515 & 1516 of 2013
khwhf nky;KiwaPll; hsh; jug;gpy; vLj;J itj;j thjk;
Vw;ff;Toajhf ,y;iy/”
Therefore, it is clear that the judgment in C.M.A.No.4 of 2013 is one
passed on merits. This judgment has not been challenged by the revision
petitioner. That apart, the revision petitioner has not only filed
C.M.A.No.4 of 2013 against the order in I.A.No.809 of 2011, but has
also filed C.R.P.(PD) (MD) No.1515 of 2013 against the very same order.
Filing of C.M.A.No.4 of 2013 has been suppressed in these revisions
before this Court. Therefore, on this ground, these two revisions deserve
to be dismissed and are dismissed, accordingly. However, there shall be
no order as to costs. Consequently, connected miscellaneous petitions
are closed.
20.01.2022
Index : Yes/No
Speaking/Non-Speaking Order
abr
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C.R.P.(PD) (MD) Nos.1515 & 1516 of 2013
P.T.ASHA, J.
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
The Principal District Munsif, Kuzhithurai.
C.R.P.(PD) (MD) Nos.1515 &
1516 of 2013
Dated: 20.01.2022
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