Madras High Court
Somnath Mukherjee vs The Kennel Club Of India on 13 June, 2022
O.S.A.No.88 of 2021
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 13.06.2022
CORAM :
THE HON'BLE MR. JUSTICE M.DURAISWAMY
AND
THE HON'BLE JUSTICE MR. SUNDER MOHAN, J
O.S.A.No.88 of 2021
and C.M.P. Nos.3732, 3736, 3742, 3745 ,
3747 & 16634 of 2021
and 4987, 4988, 4990, 4992 & 4993 of 2022
Somnath Mukherjee .. Appellant
v.
1. The Kennel Club of India,
(Registration No.16/1959)
Represented by tis Secretary cum Treasurer
C.V. Sudarshan (aged 72 years)
Registered Office at Old No.89, New No.28,
AA Block First Street,
Anna Nagar, Chennai – 600 040.
2. The Government of Tamil Nadu,
Represented by its Secretary to Government,
Commercial Taxes & Registration Department,
Secretariat, St.George Fort,
Chennai – 600 009.
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3. The Inspector General of Registration
No.120, Santhome High Road,
Bharathi Nagar, Raja Annamalaipuram,
Chennai 600 028.
4. The District Registrar (Admin)
AIG Cadre,
Chennai Central,
Chennai 600 014.
5. Capt.Sunny Jacob
6. Partha Sekhar Chatterjee
7. Mrs. Nagina
8. . R.Chockalingam @ R.C.Lingam
9. . D.Krishnamurthy
10 Vikram Dhamodaran
11. The Registrar General,
High Court of Madras,
Chennai.
(R-11 suo moto impleaded as party respondent vide
court order dated 26.2.2021 in O.S.A.Nos. 88/21 and
C.M.. Nos. 3732, 3736, 3742, 3745 , 3747 of 2021)
.... Respondents
Original Side Appeal filed under Clause 15 of Letters Patent and Order
36 Rule 11 of Original Side Rules to set aside the Judgment and decree
dated 16.12.2020 passed in C.S.No.339 of 2020.
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For Appellant : Mr. S.L. Sudharsanam
For Respondents : Mr. R. Srinivas
for Mythili Srinivas – R1
Mr. Edwin Prabhakar, Sp.G.P. - R2 to R4
Mr. S.S.Rajesh – R5, R7 to R10
No Appearance – R6
Mr. Karthik Ranganathan - R11
JUDGMENT
(Order of the Court made by M.DURAISWAMY,J.)
Challenging the order passed by the learned Single Judge in
C.S.No.339 of 2020, the 6th defendant has filed the above Original Side
Appeal.
2. The 1st respondent-plaintiff has filed the suit in C.S.No.339 of
2020 for th following reliefs:-
a. declaring that the plaintiff is registered
Society No.16/1959 ;
b. pass an order of permanent injunction
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O.S.A.No.88 of 2021
restraining the defendants 1 to 3 their men,
subordinates, officers, agents etc., from taking any
action against the plaintiff society based on any
proceedings taken or orders passed regarding Society
Registration No.276/97 ;
c. declare that the order dated 07.10.2020 passed
by the 3rd defendant in proceedings
No.1845/D2/2020 in respect of the affairs of Society
Registration No.276/97 is illegal, unlawful and not
binding on the plaintiff;
d. declare that order dated :18.08.2020 of the
second defendant passed in proceedings
No.Na.Ka.22921/II/2019 is illegal and unlawful and
not binding on the plaintiff ;
e. declare that the show cause notice
dt:29.10.2020 issued by the first defendant in letter
No.5097/MI/2020-2 is illegal, unlawful and not
binding and enforceable against the plaintiff ; and
f. award the costs of the suit to the plaintiff.
3. The learned Single Judge, by Judgment and decree dated
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O.S.A.No.88 of 2021
16.12.2020 decreed the suit. Challenging the same, The 6th defendant has
filed the above Original Side Appeal.
4. Mr. S.L. Sudharsanam, learned counsel appearing for the
appellant submitted that the defendants including the Government of
Tamil Nadu were not given an opportunity to file written statement or to
let in oral evidences before decreeing the suit. Further the learned
counsel submitted that even the plaintiff was not given an opportunity to
let in oral and documentary evidences in the suit.
5. Mr. R.Srinivas, learned counsel appearing for the 1st respondent-
plaintiff submitted that since the order impugned in the Civil Suit dated
07.10.2020 is patently illegal, the same was rightly set aside by the
learned Single Judge in the Civil Suit.
6. On a perusal of the Judgment passed in the Civil Suit it is clear
that none of the defendants were set ex parte, however, they were not
given an opportunity to file their written statement disputing or admitting
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the averments stated in the plaint. In fact, the State Government was also
not given an opportunity to file their written statement.
7. It is settled law that in any suit, the parties should be given
opportunity to file written statement, thereafter, issues to be framed and
after conducting the trial, the suit can be decided either way. In the case
on hand, the learned Single Judge decreed the suit without affording an
opportunity to the defendants to file written statement and not recording
oral and documentary evidences of the plaintiff as against the settled law.
8. In the Judgment reported in 2013(4) CTC 545 [Chitrakala v.
P. Mahesh and others] the Division Bench of this court, following the
ratio laid down by the Hon'ble Supreme Court in the Judgment reported
in 2012(5) SCC 265 [ C.N. Ramappa Gowda v. C.V. Chandregowda
(Dead) by Lrs and another] held that when there are disputed questions
of fact involved in the case giving rise to two versions, it is not safe for
the Court to record an ex-parte Judgment without directing the plaintiff
to prove the facts so as to settle the factual controversy. It is also well
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acknowledged by the legal dictum that assertion has no proof and hence,
the burden lies on the plaintiff to prove that the property is available for
partition. Even if there was no written statement to the contrary or any
evidence of rebuttal, the burden is on the plaintiff to prove his case.
9. In the case on hand admittedly, neither the plaintiff nor the
defendants were given an opportunity to let in oral and documentary
evidences. When the defendants are contesting the suit, others should
have been given an opportunity to file written statement and contest the
suit, in accordance with law.
10. The ratio laid down in the Judgment reported in 2013(4) CTC
545 [cited supra] squarely applies to the facts and circumstances of the
present case.
11. Following the ratio laid down in the Judgment cited supra,
without expressing any opinion with regard to the merits of the case, the
Judgment and decree passed in C.S.No.339 of 2020 is set aside and the
matter is remitted back to the learned Single Judge for fresh
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consideration. The learned Single Judge shall give sufficient opportunity
to the defendants to file their written statement and after recording the
oral and documentary evidences of both sides, decide the suit on merits
and in accordance with law.
With the above observations, Judgment and decree passed in
C.S.No.339 of 2020 is set aside and the Original Side Appeal is
allowed. We request the learned Single Judge to dispose of the suit in
C.S.No.339 of 2020 as expeditiously as possible, preferably, within a
period of four months from the date of receipt of a copy of this
Judgment. No costs. Consequently, the connected Miscellaneous
Petitions are closed.
[M.D., J.] [S.M., J.]
13.06.2022
Index : Yes/No
Speaking Order/Non Speaking Order
Rj
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1 The Secretary to Government,
Government of Tamil Nadu,
Commercial Taxes & Registration Department,
Secretariat, St.George Fort,
Chennai – 600 009.
2. The Inspector General of Registration
No.120, Santhome High Road,
Bharathi Nagar, Raja Annamalaipuram,
Chennai 600 028.
3. The District Registrar (Admin)
AIG Cadre,
Chennai Central,
Chennai 600 014.
4. The Registrar General,
High Court of Madras,
Chennai.
M. DURAISWAMY, J.
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O.S.A.No.88 of 2021
and
SUNDER MOHAN, J
Rj
O.S.A.No.88 of 2021
and C.M.P. Nos.3732, 3736, 3742, 3745,
3747 & 16634 of 2021
and 4987, 4988, 4990, 4992 & 4993 of 2022
13.06.2022
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