Madras High Court
J.S.T.Nallappa vs C.Mahendiran on 24 August, 2023
C.R.P.No.2238 of 2019
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED :24.08.2023
CORAM
THE HON'BLE Mr. JUSTICE V.LAKSHMINARAYANAN
C.R.P.No.2238 of 2019
J.S.T.Nallappa ...Petitioner
Vs.
C.Mahendiran ...Respondent
Prayer :- Civil Revision Petition is filed under Section 115 of Cr.P.C, to
set aside the fair order and decreetal order passed in I.A.No.579 of 2016
in O.S.No.100 of 2003 dated 19.12.2018 on the file of the Court of
District Munsif, Vaniyambadi.
For Petitioner : Mr.L.Sweety for
Mr.M.Nallathambi
For Respondent : Mr.J.Saravanavel
ORDER
The defendant who failed to convince the trial Court to condone
the delay of 3911 days in filing the petition to set aside the ex-parte
decree dated 22.11.2005 passed in O.S.No.100 of 2003 on the file of
learned District Munsif cum Judicial Magistrate, Vaniyambadi, Vellore
District, is the petitioner before this Court.
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C.R.P.No.2238 of 2019
2. The respondent filed O.S.No.100 of 2003 on the file of learned
District Munsif cum Judicial Magistrate, Vaniyambadi. In the said suit,
the relief that was sought for is to declare the respondent/plaintiff is the
Secretary of the M.J.M. and Thiru.Vee.Ka.Middle School Educational
Committee, Vaniyambadi. He also sought for an interim injunction
restraining the petitioner/defendant from interfering with the peaceful
possession and enjoyment of the post.
3. In the said suit, notice was taken to the following address:-
Mr.J.S.T Nallappa, No.19, O.C.F Road, Avadi, Chennai. The said notice
was returned with an endorsement as “Left”. On the basis of this
endorsement, paper publication was taken in Dinamalar daily to the same
address.
4.Petitioner in order to stake a claim to his rights filed
W.P.No.8196 of 2004. In the said Writ Petition, he gave his address as
No.12, M.T.H, Road, New Selvam Store, Avadi, Chennai – 600 005. Writ
Petition came up for disposal. The Writ Petition was finally disposed of
stating that subject to the outcome of the civil proceedings, the Writ
Petition may be closed.
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C.R.P.No.2238 of 2019
5.The notice had been returned “Left” and the paper publication
had been taken. The suit was decreed ex-parte. The ex-parte decree reads
as follows:-
epU:gz gpukhdg;gj;jpuk; jhf;fy; bra;ag;gl;lJ/ th/rh/1 tprhhpf;fg;gl;lhh;/ th/rh/M/1
Kjy; 5 tiuahd Mtz';fs; FwPaPL bra;ag;gl;ld/ nfhUhpik bka;g;gpf;fg;gl;lJ/ thjp
jhthtpy; nfhhpa[s;sgo bryt[j;bjhifa[ld; ,e;j tHf;FjPh;g;gplg;gLfpwJ/
6.On coming to know the decree passed, an application was filed
by the petitioner/defendant to set aside the ex-parte decree in I.A.No.579
of 2016. In the said I.A., the reason that was given by the learned counsel
for the petitioner was that notice was never served on the petitioner and
he had given a new address namely, No.2, Ashok Niranjan Nagar,
Ayyankulam, Paruthipattu, Avadi, Chennai – 7. The number of days
delayed is around 3911. It was strongly opposed by the respondent and
the application came to be dismissed, against which the present Revision.
7.I have heard Ms.L.Sweety, the learned counsel for the petitioner
and Mr.J.Saravanavel, the learned counsel for respondent.
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C.R.P.No.2238 of 2019
8.Ms.L.Sweety, the learned counsel for the petitioner submits that:-
i)as the summons had not been served on the petitioner, the
number of days delayed should not be taken into consideration.
ii)She would point out from the writ affidavit that as early as 2004,
she had given the correct address in affidavit, which was not the address
to which summons were taken in the suit.
iii)She pointed out from the ex-parte decree that by applying the
judgment in R.Stella Vs. V.Antony Francis C.R.P.(NPD)(MD)Nos.1303
of 2012 and 871 of 2013 dated 22.10.2019, the judgment being a non-
speaking decree, the same is exfacie illegal.
9.Mr.J.Saravanavel, the learned counsel would refer to the
acknowledgement card dated 08.11.2001 and would say that the address
to which the summons have sent was the correct address as the petitioner
himself acknowledge the same and it had been filed before the Court
below as Ex.R1. He would then submit that he is not responsible for the
Court passing the judgment in a wrong manner and therefore, the delay
need not be condoned. He would further add that the idea of the
petitioner is only to alienate the school and its properties. He states the
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C.R.P.No.2238 of 2019
school is doing a lot of charitable work for the poor and needy children
in the area and therefore, no discretionary order should be granted in
favour of the petitioner.
10.I have carefully heard either side and perused the records.
11.The first reason for condoning the delay is that notice was never
served on the petitioner either through Court or privately or through
publication. I come to this conclusion because, the address that was
given in the plaint is the former address of the petitioner/defendant.
Petitioner/defendant had given his present address in the Writ Petition
which was to the knowledge of the respondent/plaintiff as the latter had
entered appearance by a counsel. Still the summons was taken to the old
address and an exparte decree was obtained. On coming to know the
present address, action should have been taken to take notice to the
appropriate address.
12. Mr.Saravanavel, the learned counsel would state that Ex.R1
shows the address, which plaintiff had received notice in 2001. The suit
is of the year 2003 and the acknowledgement which has been filed by the
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C.R.P.No.2238 of 2019
learned counsel for the petitioner at page No.27 of the typed set would
show that it was not served. When service is not complete, the Court
resorts to publication only for the purpose of disposal of the suit. Paper
publication only raises a presumption of service of notice. It is not
conclusive proof of service of summons. Therefore, I have to conclude
that no notice was served on the petitioner in the suit and he came to
know about the decree only when it was disclosed in the counter in the
Writ Petition.
13.The second reason I would state for condoning the delay is a
perusal of the judgment shows that there is absolutely no discussion on
the merits of the claim of the respondent/plaintiff and as to how the
respondent/plaintiff proved his case. I agree with Mr.J.Saravanavel that it
was a practise of the subordinate Courts to pass a non-speaking decree as
declared by this Court in R.Stella Vs. V.Antony Francis
C.R.P.(NPD)(MD)Nos.1303 of 2012 and 871 of 2013 dated 22.10.2019.
Such kind of practise is not only prohibited by the Civil procedure but
also several precedents of the Supreme Court and this Court.
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C.R.P.No.2238 of 2019
14.Knowing the party had not been served with notice and the
decree being contrary to law are the two situations, which constrain me
to condone the delay.
15.Having said that, I am of the view that the petitioner ought to
have taken steps immediately. On account of the fact that nearly 3911
days has occasioned, respondent/plaintiff has been put to loss and
prejudice. Taking note of the situation, I am inclined to impose heavy
cost of Rs.1,00,000/- on the petitioner. Cost of Rs.1,00,000/- to be paid
within eight weeks from today.
16.On payment of aforesaid amount as costs, I.A.No.579 of 2016
will stand allowed.
17.The learned District Munsif Cum Judicial Magistrate,
Vaniyambadi, is requested to take up the application under Order 9 Rule
13 and allow the application.
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C.R.P.No.2238 of 2019
18.The petitioner/defendant shall file written statement on or
before 31.10.2023 and the suit itself shall be disposed of on or before
30.10.2024.
19.In case, the civil revision petitioner does not pay the costs or
fails to file the written statement within the time granted, this Civil
Revision Petition stands dismissed.
20.Accordingly, this Civil Revision Petition is disposed of with
costs. Consequently, connected miscellaneous petition is closed.
ep 24.08.2023
Index:Yes/No
Speaking Order: Yes/No
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C.R.P.No.2238 of 2019
To
1.The District Munsif, Vaniyambadi.
2.The Section Officer,
VR Section,
High Court of Madras.
https://www.mhc.tn.gov.in/judis
C.R.P.No.2238 of 2019
V.LAKSHMINARAYANAN.J,
ep
C.R.P.No.2238 of 2019
24.08.2023
https://www.mhc.tn.gov.in/judis
