Madras High Court
Kandasamy vs Govindammal on 30 March, 2022
C.R.P.(NPD)3067 of 2017
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 30.03.2022
CORAM:
THE HONOURABLE MR.JUSTICE C.V.KARTHIKEYAN
C.R.P.(NPD).3067 of 2017
1.Kandasamy
2.S.Sundarambal
3.S.Ganesan
4.T.Rani ... Petitioners
vs.
1.Govindammal
2.Mani
3.Kannamal
4.Radhamani ... Respondents
Civil Revision Petition filed under Article 227 of the Constitution of
India, seeking direction directing the Principal Subordinate Judge, Salem to
entertain the unnumbered petition and affidavit in I.A. of 2015 in O.S.No.430
of 2010 filed by the petitioner and pass appropriate orders on the same within
a stipulated time and allow the above C.R.P.
For Petitioners : Mr.R.Nalliyappan
For Respondents : Mr.D.Shivakumaran
ORDER
The first, fifth, sixth and seventh defendants in O.S.No.430 of 2010 are
the revision petitioners herein.
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C.R.P.(NPD)3067 of 2017
2. O.S.No.430 of 2010 had been filed by the first and second
respondents herein as the first and third plaintiffs, seeking partition and
separate possession of the suit mentioned properties. There was also a second
plaintiff. There were also two other defendants who are shown as respondents
in the present revision petition.
3. The first to fourth defendants had filed their written statement. They
stated that there was an oral partition. An additional written statement was also
filed by the first and second defendants. Thereafter, they did not participate
any further during the course of trial. The revision petitioners were therefore
set exparte. A Judgment was passed in the suit on 08.10.2015, whereby, while
considering the written statement filed, issues were framed and on the basis of
the available evidence, issues were answered and finally, the suit was decreed
as prayed for, which implied that partition was granted by Court.
4. Claiming that the said Judgment was an ex-parte Judgment, an
application under Order IX Rule 13 CPC was filed by the revision petitioners
herein seeking to set aside the ex-parte decree. That application was not
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C.R.P.(NPD)3067 of 2017
numbered, but rather returned by the learned Principal Sub Judge, Salem. It
was re-presented and the papers were again returned. They were again re-
presented, and finally on 28.06.2014, the learned Principal Sub Judge, stated
that the suit had been disposed of on merits on 08.10.2015 and therefore an
application under Order IX Rule 13 CPC was not maintainable and returned
the same. This revision petition has been filed against that noting.
5. I would rather that the learned Principal Sub Judge, had not taken
upon himself that particular aspect of deciding the maintainability of a
particular application, but rather come to that conclusion on the basis of a
counter affidavit filed by the respondent. That is a judicial decision to be taken
after considering rival pleadings and rival arguments and thereafter, any
application can be dismissed as not maintainable, if at all, on the face of it, it is
not supported by any provision of law or is violative of any specific provision
of law.
6. Here questioning the particular Judgment, dated 08.10.2015, there
were two options available i.e., the petitioner can seek to set aside the said
judgment by filing an application under Order IX Rule 13 CPC by taking it as
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C.R.P.(NPD)3067 of 2017
an ex-parte Judgment in so far as the revision petitioners are concerned, or an
appeal can also be filed against the same.
7.When there are two options available, rejecting the application even
without taking it on file, and stating that it is not maintainable, in my opinion
is not proper.
8.Therefore, the Civil Revision petition is allowed. A direction is given
to the learned Principal Sub Judge, Salem to take on record the petition, if it is
otherwise in order. The said un-numbered I.A shall be assigned a number.
Permission may be granted for filing a counter. Thereafter, the same can be
disposed on merits, by taking any view in accordance with law and in manner
known to law. It would be appreciable if that exercise is completed on or
before 31.07.2022. No costs.
30.03.2022
Index:Yes/No
Speaking Order:Yes/No
ssi
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C.R.P.(NPD)3067 of 2017
To:
1.The Principal Subordinate Judge, Salem.
2.The Section Officer,
V.R.Section, High Court of Madras.
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C.R.P.(NPD)3067 of 2017
C.V.KARTHIKEYAN, J.
ssi
C.R.P.(NPD).3067 of 2017
30.03.2022
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