Madras High Court
C.Banumathi vs A.M.T.P.S. Charities on 19 April, 2023
S.A.No.380 of 2007
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 19.04.2023
CORAM
THE HONOURABLE Mr. JUSTICE V. LAKSHMINARAYANAN
S.A.No.380 of 2007
and
M.P.No.2 of 2007
1.C.Banumathi
2.S.Sasikumar (Died)
3.Dhanalakshmi
4.Ganga
5.Santhi
6.Uma
7.Puvaneswari
8.Kuppu
9.Revathi
10.Minor Mohanapriya
rep. by her next friend/her mother/natural guardian
8th Appellants ...Appellants/Appellants/
Defendants
(Appellants 8 to 10 brought on record as LRs of the deceased 2nd
Appellant vide order of this Court dated 15.11.2019 in
C.M.P.No.24407 of 2009)
1/10
https://www.mhc.tn.gov.in/judis
S.A.No.380 of 2007
Vs.
A.M.T.P.S. Charities,
rep. by its Executive Officer,
Thiruvannamalai – 606 101. ...Respondent/Respondent/
Plaintiff
PRAYER : Second Appeal filed under Section 100 of the Code of
Civil Procedure against the Judgment and Decree in A.S.No.4 of 2006
dated 03.08.2006 on the file of the learned Subordinate Judge, Arni,
Thiruvannamalai District, confirming the Judgment and Decree in
O.S.No.70 of 1997 dated 03.02.1998 on the file of the learned District
Munsif Court, Polur, Thiruvannamalai District.
For Appellants : Mr.A.R. Suresh
For Respondents : Mr.R.Swaminathan
for Mr.S.Sathishrajan
JUDGMENT
The defendants are the appellants. The suit had been filed for
recovery of arrears of rents of Rs.6,200/- and to direct the defendants to
quit and deliver the vacant possession of the property.
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S.A.No.380 of 2007
2.The case of the plaintiff is that the plaintiff/Trust is the owner
of the suit schedule mentioned property. The defendant is a tenant on a
monthly rent of Rs.300/-. The defendant had been in arrears from
January 1995 to December 1996 and despite a Lawyer's notice being
issued on 14.12.1996, the defendant did not respond to the same nor
did they comply with the requirements to the notice. Being left with no
other alternative, the present suit for recovery of possession and for
payment of arrears was presented.
3.The said suit was decreed ex parte on 03.02.1998. The ex
parte decree was sought to be set aside by way of filing of application
under Order 9 Rule 13 of the Code of Civil Procedure. The said
application in I.A.No. 180 of 1999 was allowed on condition that the
defendants deposit a sum of Rs.200/- as costs. The cost was not paid.
Hence, an order was passed dismissing the application which had been
filed under Order 9 Rule 13 of CPC. As against the Judgment and
Decree passed in the suit, an appeal was filed in A.S.No.4 of 2006.
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S.A.No.380 of 2007
4.The learned First Appellate Judge dismissed the appeal holding
that once an order is passed under Order 9 Rule 13 of CPC, no appeal
is maintainable against the original decree. Against the Judgment and
Decree of the Lower Appellate Court, the present Second Appeal has
been filed.
5.Notice of motion had been ordered by the Court on 27.03.2007.
The appeal has not been admitted. I am admitting it on the following
Substantial Questions of Law:
“(1)Whether the filing of an application under Order
9 Rule 13 of the Code of Civil Procedure is a bar to prefer
a regular appeal against the Decree?
(20Whether the Lower Appellate Court had not
erred in noticing that the Judgment of the trial Court does
not comply with the requirements of Order 20 Rule 4 of the
Code of Civil Procedure?”
6.Answering the first question, I would hold that the learned First
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S.A.No.380 of 2007
Appellate Judge had committed a serious error in not noticing the
provision under Order 9 Rule 13 of CPC. The explanation appended to
Order 9 Rule 13 of CPC would be relevant here. It reads, where there
has been an appeal against a Decree passed ex parte decree under this
rule and the appeal had been disposed of on any ground other than the
ground that the appellant has withdrawn the appeal, no application
would lie under this rule for setting aside the ex parte decree. The bar
is that as against the decree that has been passed and an appeal has been
preferred and that appeal has been disposed of on grounds other than
withdrawal, the appellant in such a situation is barred from presenting
the application under Order 9 Rule 13 of CPC. To make it clear filing
of an application under Order 9 Rule 13 of CPC and its dismissal
thereof does not take away the statutory right of a party to file an
appeal under Section 96 read with Order 41. Order 9 Rule 13 of CPC
is not a bar for presentation of an appeal under Section 96 read with
Order 41 Rule 1 of CPC. Therefore, the order of the Lower Appellate
Court would have to be set aside.
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S.A.No.380 of 2007
7.Now taking up the second Substantial Question of law, I
noticed that the Judgment of the Trial Court is an unreasoned one and
therefore, it does not comply with the requirements of Order 20 Rule 4
of CPC. This Court in R. Stella v. V.Antony Francis [2019 (5) L.W.-
161] has held that an unreasoned Judgment does not answer the
requirements of law and such a Judgment must be set aside, when
brought to the notice of this Court. Under normal circumstances, I
would have set aside the Judgment and Decree of the Lower Appellate
Court and restored the appeal suit on to its file. However, having
noticed that the Judgment of the Trial Court is unreasoned, I have no
other option than to allow the Second Appeal and to set aside the
Judgment of the Lower Appellate Court as it is contrary to the
provisions of Order 9 Rule 13 of CPC and also set aside the Judgment
and Decree of the Trial Court, as it contrary to the provisions of Order
20 Rule 4 of CPC.
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S.A.No.380 of 2007
8.In fine, this Second Appeal is allowed. The Judgment and
Decree of the learned Subordinate Judge, Arni, Thiruvannamalai
District, in A.S.No.4 of 2006 dated 03.08.2006 is set aside. It erred in
confirming the unreasoned Judgment of the Trial Court in O.S.No.70
of 1997 dated 03.02.1998 on the file of the learned District Munsif,
Polur, Thiruvannamalai District and that the said Judgment and Decree
is also set aside and the suit is restored on to the file of the District
Munsif, Polur, Thiruvannamalai District.
9.The suit being of the year 1997, the learned District Munsif,
Polur, Thiruvannamalai District, is requested to give priority to the case
and dispose of the same on or before 30.11.2023. The Trial Judge is
requested to dispose of the suit within the time limit that has been fixed
by this Court and send report thereof immediately on its disposal. The
parties are directed to co-operate for disposal of the suit. The learned
Trial Court is given absolute discretion to reject any request for
adjournment, if it finds that it is dilatory or unnecessary. The entire
exercise shall be completed as mentioned above on or before
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S.A.No.380 of 2007
30.11.2023 and the report should be sent immediately thereafter.
For the delay caused by the appellant, he shall pay a sum of
Rs.10,000/- (Rupees ten thousand only) to the respondent within a
period of four weeks from today. Consequently, connected
Miscellaneous Petitions is closed.
19.04.2023
Index : Yes/No
Internet : Yes/No
Speaking order / Non speaking order
mps
To
1.The Subordinate Judge,
Arni,
Thiruvannamalai District.
2.The District Munsif,
Polur,
Thiruvannamalai District.
https://www.mhc.tn.gov.in/judis
S.A.No.380 of 2007
V. LAKSHMINARAYANAN, J,
mps
S.A.No.380 of 2007
and
M.P.No.2 of 2007
19.04.2023
(2/2)
https://www.mhc.tn.gov.in/judis
S.A.No.380 of 2007
C.M.P.No.349 of 2022
in
S.A.No.380 of 2007
V. LAKSHMINARAYANAN, J,
Heard Mr.A.R.Suresh, learned
counsel for the appellants and
Mr.R.Swaminathan, learned counsel
for the respondents.
I am satisfied with the reasons
assigned in the affidavit filed in
support of this petition. Hence, this
petition is allowed and the Second
Appeal is restored to file.
mps 19.04.2023
(1/2)
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