Madras High Court
O.Velu vs Mr.G.Mani on 6 April, 2023
C.R.P. No. 934 of 2023
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 06.04.2023
CORAM:
THE HON'BLE MRS.JUSTICE T.V.THAMILSELVI
C.R.P. No. 934 of 2023
O.Velu,
S/o. Onnappan
... Petitioner
Vs.
Mr.G.Mani,
S/o. Late Govinda Naicker .. Respondent
PRAYER : Civil Revision Petition filed under Art. 227 of Constitution of
India, to set aside the docket order dated 29.09.2022 in unnumbered
O.S.SR.No.6840 of 2022 on the file of Hon'ble District Principal Judge at
Tiruvallur to direct to number the O.S. in SR.No. 6840 of 2022 in condone
delay petition.
For Petitioner : Ms.Rekha Sivakumar
1/12
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C.R.P. No. 934 of 2023
ORDER
Challenging the impugned docket order passed by the trial judge in an
unnumbered plaint dated 29.09.2022 in O.S.SR.No. 6840 of 2022, the
Revision Petitioner/Plaintiff preferred this Civil Revision Petition.
2. The learned counsel for plaintiff would submit that originally, one
Govinda Naicker, father of respondent herein filed a suit in O.S.No.1968 of
1991 on the file of District Munsif Court, Ambattur praying for a declaration
and other consequential relief against this defendant including father of this
Revision Petitioner viz., Onnappan and his grandmother and his two brothers.
Due to lack of communication, they were not able to follow the proceedings
and they were remained exparte and an exparte decree was passed on
16.03.2001. Thereafter, based on the exparte decree, now the plaintiff in that
suit, Govinda Naicker and his legal heirs attempted to transfer the patta in their
favour, then only the Revision Petitioner came to know that a decree was
passed behind his back. Hence, he has filed a suit before the trial court to
declare the said decree as null and void for the reason that the trial judge
without considering the merits of the documents adduced on the side of parties
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C.R.P. No. 934 of 2023
dismissed the suit and though it is an exparte decree, the trial judge has not
assigned any reason for passing a decree. Hence, the same is to be declared as
an invalid decree. So, the plaintiff has filed a suit for declaration declaring the
said exparte decree as null and void, but the trial judge returned the plaint how
the suit is maintainable and it was also not filed in time. Furthermore, again
when the plaintiff represented the same stating that the suit was filed in time
from the date of their knowledge, even then the trial judge not inclined to take
the plaint on file and the same was returned. Challenging the said findings, the
present Civil Revision Petition has been filed.
3. On perusal of records, it would reveals that the plaintiff herein filed a
suit for the relief of declaration to declare the exparte decree passed in
O.S.No.119 of 1996 originally numbered as O.S.No.1968 of 1991 on the file
of District Munsif, Ambattur as null and void for the reason that the said decree
passed by the trial judge without considering the merits and demerits of the
documents adduced on the side of parties and though it is an exparte decree,
the trial judge has not assigned any reason for passing a decree. Therefore, the
said decree deemed to be declared as null and void and accordingly, the present
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C.R.P. No. 934 of 2023
suit was filed. On perusal of decree passed by the trial court annexed in the
typed set of papers by the revision petitioner , it reveals that while the case was
taken on file in O.S.No. 1968 of 1991 now it was renumbered as O.S.No.119
of 1996 before the District Munsif Court, Ambattur, the defendant was remain
exparte, but the trial judge has framed 8 issues with regard to possession and
occupation and other consequential relief, but the trial judge passed the decree
as follows :-
“th/rh/1 tprhhpf;fg;gl;lhh;/ rhd;whtzk; v1 FwpaPL bra;ag;gl;lJ/ thjp jhthtpy;
nfhhpago jPh;g;g[ tH';fg;gLfpwJ/”
Accordingly, the suit is ordered and the decree was passed by the District
Munsif without adjudicating any of 7 issues as the trial judge framed in that
suit and also not discussed about the document relied on by the plaintiff, which
was marked as Ex.A1.
4. Furthermore, in an article about Exparte Decree and Duty of the
Court written by Hon'ble Mr.Justice M.Y.Eqbal (as he then was), on relying
the various judgments, he has held as follows :-
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C.R.P. No. 934 of 2023
“2. Sir Lawrence Jenkins about a century before
observed :-
“The fundamental principle of law is that the
plaintiff when he comes to Court must prove his case and
he must prove it to the satisfaction of the Court. His
burden is not lightened because the defendant is absent.
On the other hand, the responsibility increases.”
(Deonandan vs. Janki Singh) (1916 (44) Calcutta 573)
3. Lord Macnaghten in one case observed :-
“When the matter is heard exparte in absence of
contestant defendant, who is not represented, it is the duty
of the counsel to bring to the notice of the Court adverse
as well as favourable authorities.” (81 IC 867)
“Great caution should be exercised when suits are
heard exparte. This principle is of universal application.”
(1871) 8 BLR 44.
4. Mere absence of the defendant does not of itself justify
the presumption that the plaintiff's case is true. The Court has no
jurisdiction to pass exparte decree without any evidence being
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C.R.P. No. 934 of 2023
given by or on behalf of the plaintiff and the provision of Order VII
Rule 10 apply only when the Court has required the defendant to
file a written statement.”
(Amrit Nath Vs. Roy Dhunput)
(1871 (15) WR 503)
5. Their Lordships L.Sandreson, C.J., J. Woodroffe
and A.Mookerjee in the case f J.B. Ross vs. C.R.Scriven
observed :-
“15. The procedure in this country is not that which
prevails in England. In my experience, the practice sought
to be upheld by the respondents has not hitherto prevailed
in this Court where it has always been the practice in
undefended cases to take evidence as defined in the
Evidence Act, viz., oral statements of witnesses and
documents proved before the Court. The cursus curix may
be looked at when interpreting the terms of the Civil
Procedure Code. There is, in my opinion, nothing in the
decision (Galstaun v. Hutchison 15 Ind. Cas. 279 : 39
C. 789 : C.W.N. 945), to which I was a party and in which
judgment was also delivered by the late Chief Justice,
which justifies the contention which has been advanced by
the respondent before us. In this case, the plaintiff gave
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C.R.P. No. 934 of 2023
evidence and proved his claim, but a question of stamp
arose. The defendant entered appearance, but did not file a
written statement. The Code, however, is clear. The case
does not fall under Order XXXV 11; for the suit was based
upon an alleged breach of contract claiming unliquidated
damages.”
While considering Order 9 Rule 6, Their Lordships
observed:-
“19. Under Order IX, Rule 6, where the plaintiff
appears and the defendant does not appear when the suit
is called on for hearing, then if it is proved that the
summons was duly served the Court may proceed
exparte, “proceed exparte” means “proceed to take and
determine evidence” and “this is what the summons in
the suit says. The summons does not say that on failure
to appear the plaintiff is entitled to a judgment by default,
but on the defendant's failure to appear the case will be
heard and determined exparte, that is, in his absence by
the taking of evidence.”
(ILR 43 Cal. 1001)
6. A Division Bench of the Calcutta High Court in the case
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C.R.P. No. 934 of 2023
of Monmatha Kumar vs. Josada Lal reported in 1924 Calcutta
647 while delivering the judgment, Their Lordships Justice
Newbould and Rankin observed that even if the case is heard
exparte, it is the duty of the Court to consider the interest of the
absent party and not to pass decree, except on proof by the plaintiff
that he is entitled to that decree.
7. In Ghulam Hussain v. Singer Sewing Machine
Company, AIR 1926 Oudh 192, a similar view has been taken by
the Court holding that even though the defendant is set exparte, the
duty is still there on the part of the plaintiff's to prove prima facie
case in support of their claim. The documents ought to have been
scrutinized carefully so as to see whether right claimed is well
founded.
8. In the case of Sheonarayan Harlal Maheshwari vs.
Kanhaiyalal Devidin reported in AIR 1948 Nag. 168, the Court
observed :-
“Where the defendant does not appear and the
Court requires the plaintiff to adduce prima facie evidence
I think the Court ought to warn the plaintiff that such
evidence as he has adduced is not in the opinion of the
Court sufficient to establish a prima facie case. Unless
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C.R.P. No. 934 of 2023
this is done it is evidence that a plaintiff would be bound to
adduce all his evidence and examine his witnesses as fully
as he would in a defended case.”
9. In Bhujangrao vs. Baliram reported in AIR 1928
Nagpur 165, their Lordships observed that in every exparte case,
the Court must consider whether there are any matters that ought
to be proved by evidence in addition to having been proved by
admission of the defendant, and if it finds that there are, it must
state them definitely.”
“The judgment, as laid down by the Civil Procedure Code,
though it might be an exparte judgment, must contain a precis of
the plaint and the points that arose for determination and it should
also record the findings. It should also contain succinctly the
summary of the discussion of the evidence and the effect of the
document in the suit.”
Therefore, the Court cannot blindly decree the suit on the ground that the
defendants are exparte, besides mere absence of the defendant does not justify
the presumption that the whole of the plaintiff's case is true. Even the plaintiff
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C.R.P. No. 934 of 2023
failed to make out a prima facie case and the defendant is entitlted ex debito
justitiae to have such a decree set aside.
5. As discussed above, 7 issues framed by the trial court, but none of the
issues adjudicated and simply because the defendant was remained exparte, the
suit is decreed in favour of plaintiff without assigning any reason and for
granting such a relief in favour of plaintiff without adjudicating the issues, as
such, is totally an invalid decree. Therefore, the plaintiff herein is having valid
defence in the suit and if at all, the plaintiff is not permitted to putforth his
defence, his valuable right to defend his case will be defeated. Therefore, the
findings rendered by the trial judge is liable to be set aside. Accordingly, this
Civil Revision Petition is allowed and the trial court is directed to take the
plaint on file within a period of two weeks from the date of receipt of copy of
this order and to dispose the suit on merits by issuing summons to the
respondent. Accordingly, this Civil Revision Petition is allowed. No costs.
06.04.2023
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C.R.P. No. 934 of 2023
Index : Yes / No
Internet : Yes / No
Speaking/Non-speaking order
rpp
To
Principal District Judge, Tiruvallur.
T.V.THAMILSELVI, J.
rpp
C.R.P. No. 934 of 2023
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C.R.P. No. 934 of 2023
06.04.2023
https://www.mhc.tn.gov.in/judis
