Madras High Court
Ganesan (Died) vs Anjalatchi on 22 December, 2023
Author: Sathi Kumar Sukumara Kurup
Bench: Sathi Kumar Sukumara Kurup
CRP.Nos.1710 & 1711 of 2021
IN THE HIGH COURT OF JUDICATURE AT MADRAS
RESERVED ON : 20.06.2023
PRONOUNCED ON : 22.12.2023
CORAM:
THE HON'BLE MR.JUSTICE SATHI KUMAR SUKUMARA KURUP
CRP.Nos.1710 & 1711 of 2021
and
CMP.No.13299 of 2021
1.Ganesan (died)
2.Suriya
3.G.Anitha
4.G.Sheela
(Petitioner 2 to 4 brought on record as LRs of the
deceased Sole Petitioner Viz Ganesan vide Court
order dated 30.01.2023 made in CMP.Nos.793
and 3092 of 2022 in CRP.No.1710 and 1711 of 2021)
...Petitioners in both CRPs
Vs.
1.Anjalatchi
2.Velarasan ... Respondents in both CRPs
PRAYER in CRP.No.1710 of 2021: Civil Revision Petition is filed under
Article 227 of the Constitution of India, to set aside the decretal order dated
11.03.2021 passed in I.A.No.113 of 2018 in O.S.No.304 of 2015 on the file
of the Additional District Munsif, Cuddalore.
PRAYER in CRP.No.1711 of 2021: Civil Revision Petition is filed under
Article 227 of the Constitution of India, to set aside the decretal order dated
15.04.2021 passed in I.A.No.446 of 2016 in O.S.No.304 of 2015 on the file
of the Additional District Munsif, Cuddalore.
For Petitioners : Mr.W.M.Abdul Majeed
(in both CRPs) for M/s.G.Sumitra
For Respondents : Mr.N.Suresh
1/18
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CRP.Nos.1710 & 1711 of 2021
(in both CRPs)
COMMON ORDER
Both these Civil Revision Petitions had been filed seeking to set aside
the decretal orders dated 11.03.2021 and 15.04.2021 passed in I.A.No.113 of
2018 and I.A.No.446 of 2016 in O.S.No.304 of 2015 on the file of the
Additional District Munsif, Cuddalore.
2.The brief facts which are necessary for disposal of these Civil
Revision Petitions are as follows:
2.1.The Revision Petitioner in both the Civil Revision Petitions is the
Plaintiff in O.S.N.304 of 2015 pending on the file of the learned Additional
District Munsif, Cuddalore. The Revision Petitioner as Plaintiff had earlier
filed suit in O.S.No.109 of 2011 for recovery of money. The suit was
decreed on 15.06.2011. Based on the decree, the Plaintiff as Decree-holder
filed Execution Petition and obtained order of attachment of the property.
Subsequently, after attachment was ordered, the decree-holder filed another
Execution Petition for delivery of possession. Accordingly, possession was
also taken. The Respondents had interfered with the possession of the
Decree-holder. Therefore, the Plaintiff in O.S.No.109 of 2011 was forced to
file the second suit in O.S.No.304 of 2015.
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2.2.The second suit in O.S.No.304 of 2015 was filed to declare the
title of the Plaintiff in the suit and to recover the possession of the property
and for measne profits. The Defendants in O.S.No.304 of 2015 remained ex
parte. The Defendants in the suit in O.S.No.304 of 2015 filed another suit
against the Plaintiff in O.S.No.304 of 2015 and another in O.S.No84 of
2014. The suit in O.S.No.84 of 2014 was dismissed for non-prosecution on
20.12.2016. The Respondents in these Civil Revision Petitions had filed
petition in I.A.No.486 of 2016 in I.A.N.446 of 2016 in O.S.No.304 of 2015
seeking to set aside the order passed in I.A.No.446 of 2016 dated
24.06.2016. The said petition was allowed on payment of cost of Rs.500/-
each. However, the Petitioners in I.A.No.486 of 2016 in I.A.No.446 of 2016
in O.S.No.304 of 2015 did not pay the cost on time. The same was
dismissed. Therefore, the Respondents herein had filed petition in
I.A.No.113 of 2018 in I.A.No.446 of 2016 in O.S.No.304 of 2015 to extend
the payment of cost of Rs.500/- passed in I.A.No.446 of 2016 in O.S.No.304
of 2015. The same was resisted by the Plaintiff in O.S.No.304 of 2015 as
Respondents in the Interlocutory Applications. The learned Additional
District Munsif, Cuddalore, allowed the Petitions. Therefore, aggrieved by
the same, the Plaintiff in O.S.No.304 of 2015 had approached this Court by
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CRP.Nos.1710 & 1711 of 2021
filing these Civil Revision Petitions.
3.The learned Counsel for the Revision Petitioners contended that
after the suit had been decreed ex parte, the Petition under Order IX, Rule 7
of CPC, is not at all maintainable as the Court has become functus officio.
Therefore, he seeks to set aside the order passed by the learned Additional
District Munsif, Cuddalore, in I.A.No.113 of 2018 in I.A.No.446 of 2016 in
O.S.No.304 of 2015 as per orders dated 11.03.2021 and 15.04.2021.
4.The learned counsel for the Respondents submitted that the
Respondents are the Defendant in O.S.No.304 of 2015 on the file of the
learned Additional District Munsif, Cuddalore. He further submitted that the
Plaintiff in O.S.No.304 of 2015 had filed the suit seeking to declare the title
of the suit properties in favour of the Plaintiff and for recovery of possession
from the Defendants and for measne profits from the date of the plaint till
the date of delivery of the suit property. The Plaintiff in the suit in
O.S.No.304 of 2015 had filed the suit on the basis of delivery of possession
in O.S.No.109 of 2011 and also on the basis of the patta granted to the
Plaintiff as per the decree in O.S.No.109 of 2011.
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CRP.Nos.1710 & 1711 of 2021
5.The learned Counsel for the Respondents invited attention of this
Court to the suit in O.S.No.109 of 2011. The said suit was for the relief of
partition. The suit was decreed granting preliminary decree of partition of
the ½ share of the Plaintiff in the suit property. On the basis of the decree
passed in O.S.No.109 of 2011 and E.P.No.270 of 2012 was filed and
accordingly the possession of the property was handed over to the Plaintiff.
When the possession was about to be handed over, the Defendants in
O.S.No.304 of 2015 is alleged to have obstructed the same and the
Defendants in O.S.No.304 of 2015 had filed E.A.No.35 of 2012 under
Section 47 of CPC which was dismissed on merits. The second Defendant
in O.S.No.304 of 2015 had filed E.A.No.429 of 2014 under Order 21 Rules
97 and 99 which was also dismissed. All the claims put forward by the
Defendants were negatived. Finally, the Plaintiff in O.S.No.304 of 2015
was able to take delivery of the suit property with the help of Police on
12.08.2015.
6.As per the plaint averments in O.S.No.304 of 2015, the Defendants
who were in occupation temporarily at the instigation of the enemies of the
Plaintiff were evicted. The Plaintiff took possession of the suit property and
he is in possession and enjoyment of the same. Suddenly with the help of
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CRP.Nos.1710 & 1711 of 2021
unruly elements, the Defendants have trespassed into the suit property in the
2nd week of September 2015 and refused to vacate the same. Therefore, the
Plaintiff had filed the suit. The claim of the Defendants are barred by the
principles of res judicata as their claim to the suit property was already
negatived in O.S.No.109 of 2011. The possession of the Defendants over
the suit property is unlawful and they are liable to surrender possession of
the suit property to the Plaintiff. Therefore, the Plaintiff had filed the suit
seeking to declare the title to the suit property, for recovery of possession of
the suit property, free from obstruction of the Defendants and on their failure
possession of the suit property may be delivery to the Plaintiff through
process of Court and order for an enquiry into future mesne profits from the
date of plaint till the date of delivery of the suit property.
7.It is the contention of the learned Counsel for the Respondents that
the claim in O.S.No.109 of 2011 giving rights to the filing of the subsequent
suit itself shows that the decree passed by the earlier suit in O.S.No.109 of
2011 was not passed as per procedures. The Hon'ble Supreme Court has laid
down the law that while granting the relief in suit the court has to answer all
the issues. Just because the Defendants in O.S.No.109 of 2011 remained ex-
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CRP.Nos.1710 & 1711 of 2021
parte, the learned Judge without discussing the evidence passed ex-parte
decree which had given rise to these complications. Subsequently, the suit
had been filed for declaration of title to the suit property and for delivery of
vacant possession and for mesne profits. If what had been stated by the
Plaintiff in O.S.No.304 of 2015 is true, based on the suit for partition in
O.S.No.109 of 2011 delivery of possession was granted to the Plaintiff
through the bailiff of the Court, then there is no necessity for the Plaintiff to
file subsequent suit seeking declaration of title. In the suit in O.S.No.304 of
2015, the Defendants were set ex-parte. The Defendants had filed
I.A.No.446 of 2016 in O.S.No.304 of 2015 seeking to set aside the ex-parte
order passed against them in O.S.No.304 of 2015. That Petition was
allowed by directing the Defendants, the Petitioners in I.A.No.446 of 2016
to pay a sum of Rs.200/- as cost to the Plaintiff on or before 08.04.2021.
Since the Defendants in O.S.No.304 of 2015 did not pay the cost to the
Plaintiff, the petition in I.A.No.446 of 2016 was dismissed.
8.It is the further contention of the learned Counsel for the
Respondents that the Counsel for the Petitioners had not issued notice for
hearing on the Counsel for the Plaintiff. Therefore, I.A.No.446 of 2016 in
O.S.No.304 of 2015 was dismissed. To restore the I.A.No.446 of 2016, the
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CRP.Nos.1710 & 1711 of 2021
Defendants in O.S.No.304 of 2015 had filed I.A.No.113 of 2018 which was
also resisted by the Plaintiff. I.A.No.113 of 2018 to restore the I.A.No.446
of 2016 in O.S.No.304 of 2015 was filed under Order IX, Rule 9 of C.P.C.
This petition was resisted by the Plaintiff as Respondent. After due enquiry
as per order dated 11.03.2021 the petition in I.A.No.113 of 2018 was
allowed on payment of cost of Rs.1,000/- to the Plaintiff. Therefore, the
petition in I.A.No.446 of 2016 was restored to file.
9.It is the further contention of the learned Counsel for the
Respondents that if the Court had granted an ex-parte order/decree in favour
of the Plaintiff it will give rise to further complications. Therefore, the ex-
parte order passed against the Defendants in O.S.No.304 of 2015 dated
04.04.2016 had to be set aside and the suit has to be disposed off after full
trial. Thereby, the Court has to discuss the evidence and answer all the
issues. Instead of decreeing the suit without answering the issues, as the suit
was decreed ex-parte, it will give rise to further complications. Therefore,
the learned Counsel for the Respondents seek to dismiss these Civil
Revision Petitions filed by the learned Counsel for the Plaintiff. The
petitioners in I.A.No.446 of 2016 who are the Defendants in the suit had
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CRP.Nos.1710 & 1711 of 2021
complied the cost. Therefore as a consequences of the same, ex-parte order
is to be set aside. It is not the intention of the party to repeatedly allow the
suit to be dismissed ex-parte and repeatedly file the petition. The Court
could have waited for the passing of a decree only after setting aside the ex-
parte order passed against the Defendants. I.A.No.486 of 2016 was filed to
restore the petition in I.A.No.446 of 2016. I.A.No.486 of 2016 was allowed
on payment of cost of Rs.500/- to be paid on or before 18.11.2016.
I.A.No.113 of 2018 was filed seeking extension of time to pay the cost under
Section 5 of the Limitation Act read with Section 151 of CPC. The said
petition was also resisted by the Plaintiff. I.A.No.113 of 2018 was allowed
as per order dated 11.03.2021 by granting time and on payment of cost of
Rs.1000/-.
10.It is the contention of the learned Counsel for the Respondents
that the earlier Counsel engaged by the Defendants are not acted fairly to
protect the interest of the Defendants. He had acted against the Defendants.
Therefore, the Defendants have preferred complaint against the earlier
Counsel and filed fresh petition seeking extension of time to pay the cost
and to set aside the ex-parte order. After due enquiry, the learned Additional
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CRP.Nos.1710 & 1711 of 2021
District Munsif, Cuddalore, had allowed the petition in I.A.No.113 of 2018
by imposing cost of Rs.1000/- to be paid to the Plaintiff on or before
24.03.2021. Therefore, in the interest of justice, the Civil Revision Petition
is to be dismissed and the O.S.No.304 of 2015 to be restored to file by
affording opportunity to the Defendants to participate in the proceedings and
agitate their valuable rights.
11.By way of reply, the learned Counsel for the Revision Petitioners
submitted that by the time the I.A.No.113 of 2018 was allowed, the suit
itself was decreed ex-parte and on the basis of the ex-parte decree, E.P was
filed. The contention of the learned Counsel for the Respondents cannot at
all be accepted as the Defendants in the suit had agitated their rights in EP
by filing E.A.No.244 of 2018 which was dismissed by the very same court.
Subsequently, Execution Petition filed by the Plaintiff was ordered. In the
Execution Petition, the Defendants had notice of the execution petition
notice of the ex-parte decree, the petition under Order IX, Rule 7 of CPC
cannot be entertained after passing of the decree. The learned Additional
District Munsif, Cuddalore had allowed the petition, after the suit was
decreed. Therefore, the order passed by the learned Additional District
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Munsif, Cuddalore in whose court EA was also filed by the 3rd party in the
suit challenging the decree as in-executable, the same was also dismissed.
E.A was dismissed. Against which the 3rd party who filed EA had not
preferred any Appeal or Revision. E.A.No.244 of 2018 filed by the 3rd party
in E.P.No.114/2017 in O.S.No.304 of 2015 was dismissed as per order dated
09.11.2020.
12.Therefore, the learned Additional District Munsif, Cuddalore
ought not to have allowed the petition for extension of time for payment of
cost in I.A.No.446 of 2016 only by allowing I.A.No.113 of 2018 as per order
dated 11.03.2021. The learned District Munsif, Cuddalore had caused
injustice to the decree-holder by passing an order which is perverse. The
Petitioner under Order IX, Rule 7 of C.P.C., had become infructuous by the
disposal of the O.S.No.304 of 2015 as per judgment and decree dated
05.04.2017, whereas the learned Judge has not applied his mind by allowing
I.A.No.113 of 2018 had passed perverse order thereby creating
complications after grant of ex-parte decree, based on which EP had already
been filed in the very same court. If the learned judge had be careful that he
is the executing court as well as the Trial Court. Therefore, both records are
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CRP.Nos.1710 & 1711 of 2021
available before him. Instead of allowing I.A.113 of 2018 ought to have
dismissed the petition has become infructuous. The Court cannot pass order
in a petition under Order IX, Rule 7 of C.P.C., as the suit itself had been
disposed of only if the suit had been pending before the Trial Court. The
petition under Order IX, Rule 7 of C.P.C., could have been entertained. The
earlier petition in I.A.No.446 of 2016 even though the Court passed an
order, the Defendants have not paid the cost and therefore the petition was
dismissed for default and to restore the same. I.A.486 of 2016 was filed and
that was also allowed on cost, that cost was not paid. Thereafter, for
extension of cost in I.A.113 of 2018 had been filed by time. The suit itself
had been decreed and the Defendants have received notice in EP also.
Therefore, the order passed in I.A.113 of 2018 is without jurisdiction, the
court has become functus officio.
Point for consideration:
1. Whether the order passed by the learned Additional
District Munsif, Cuddalore, in I.A.No.113 of 2018 in
O.S.No.304 of 2015 dated 11.03.2021 is to be set aside?
2. Whether the order passed by the learned Additional
District Munsif, Cuddalore, in I.A.No.446 of 2015 in
O.S.No.304 of 2015 dated 15.04.2021 is to be set aside?
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13.Heard the learned Counsel for the Revision Petitioners and the
learned Counsel for the Respondents in both Civil Revision Petitions.
Perused the typed set filed along with the memorandum of C.R.P.Nos.1710
& 1711 of 2021.
14.On perusal of the plaint in O.S.No.109 of 2011, decree in O.S.109
of 2011, plaint in O.S.No.304 of 2015, the order passed in E.A.No.429 of
2014 in E.P.No270 of 2012 in O.S.No.109 of 2011, a copy of the delivery
receipt dated 12.08.2015, the petition and affidavit in I.A.No.446 of 2016 in
O.S.No.304 of 2015, the petition and affidavit in I.A.No.486 of 2016 in
I.A.No.446 of 2016 in O.S.No.304 of 2015, counter in I.A.No.486 of 2016
in I.A.No.446 of 2016 in O.S.No.304 of 2015, the order in I.A.No.486 of
2016 in I.A.No.446 of 2016 in O.S.No.304 of 2015, the judgment in
O.S.304/2015, the petition and affidavit in I.A.No.113 of 2018 in
I.A.No.446 of 2016 in O.S.No.304 of 2015, counter in I.A.No.113 of 2018
in I.A.No.446 of 2016 in O.S.No.304 of 2015, order and decretal order in
E.A.No.244 of 2018 in E.P.No.114 of 2017 in O.S.No.304 of 2015, the order
passed in I.A.No.113 of 2018 in I.A.No.446 of 2016 in O.S.No.304 of 2015
and the Memorandum of Grounds in CRP. The order passed by the learned
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District Munsif, Cuddalore is without jurisdiction all the petitions arises out
of Order IX, Rule 7 of C.P.C. The petitioner in I.A.No.446 of 2016, by the
time, the I.A.No.446 of 2016 and I.A.No.113 of 2018 had been filed. The
suit in O.S.No.304 of 2015 had been disposed of by judgment and decree
dated 05.04.2017. Therefore, the order passed by the learned District
Munsif on 11.03.2021 granting extension of time to pay the cost in
I.A.No.446 of 2016, the petition under Order IX, Rule 7 of C.P.C. is without
jurisdiction. Therefore, as rightly pointed out by the learned counsel for the
Revision Petitioner, the Court had passed an order without jurisdiction and
the Court had already disposed of the suit in O.S.No.304 of 2015 by
judgment and decree dated 05.04.2017. The order passed in I.A.No.113 of
2018 in I.A.No.446 of 2016 in O.S.No.304 of 2015 dated 11.03.2021 is
without jurisdiction, as the court has become functus officio.
15.As rightly pointed by the learned Counsel for the Revision
Petitioner the judgment and decree in O.S.No.304 of 2015 had not been set
aside by the Defendants under Order IX, Rule 13 on the date of filing of the
petition in I.A.No.113 of 2018. Therefore, the order was passed already in
I.A.No.446 of 2016 under Order IX, Rule 7 of C.P.C., has become
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infructuous. By the time, the order was passed in I.A.No.113 of 2018 to
condone the delay in restoring the I.A.No.446 of 2016.
16.The learned District Munsif, Cuddalore had not at all applied his
mind, when the suit had been decreed ex-parte and EP had been filed. The
Defendants having knowledge of filing of the EP, after receipt of notice. The
blame on the learned counsel engaged by the Defendants will not hold good
in the facts and circumstances of the case. The submissions of the learned
Counsel for the Respondents that the suit in O.S.No.109 of 2011 was also an
ex-parte decree, based on which, all the complications had arose and also
cannot be accepted, as the Defendants herein had been the defendant in
O.S.No.109 of 2011. They had not filed any petition to set aside the ex-
parte decree in O.S.No.109 of 2011 or filed any appeal against passing of the
ex-parte decree. After much water had flowed, the submission of the
learned Counsel for the Respondents, the Respondents herein that the
delivery receipt, based on which, the Plaintiff herein had filed the suit for
declaration of title and sought delivery of possession, based on the earlier
delivery receipt cannot accepted, as it is without any legal basis.
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17.As contended by the learned Counsel for the Revision Petitioners,
the submission of the learned Counsel for the Respondents cannot at all be
accepted. The Defendants are aware of the earlier proceedings and the
present proceedings. They had wantonly taken the risk of remaining ex parte
and filing Petition to set aside the ex parte decree along with the Petition to
condone the delay in filing the Petition to set aside the ex parte decree. This
is only to prevent the Plaintiff from enjoying the fruits of the decree.
18.In the light of the above discussion, the first point for consideration
is answered in favour of the Revision Petitioners and against the
Respondents. The order dated 11.03.2021 passed by the learned Additional
District Munsif, Cuddalore in I.A.No.113 of 2018 in O.S.No.304 of 2015 is
to be set aside.
19.The second point for consideration is also answered in favour of
the Revision Petitioners and against the Respondents. The order dated
15.04.2021 passed by the learned Additional District Munsif, Cuddalore in
I.A.No.446 of 2016 in O.S.No.304 of 2015 is to be set aside.
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In the result, both the Civil Revision Petitions are allowed and the
orders dated 11.03.2021 and 15.04.2021 passed by the learned Additional
District Munsif, Cuddalore in I.A.No.113 of 2018 and I.A.No.446 of 2016
in O.S.No.304 of 2015 are set aside.
The learned Additional District Musnif, Cuddalore is directed to
dispose of the Execution Petition within a reasonable period of two months
from the date of receipt of a copy of this order.
22.12.2023
Index : Yes / No
Internet : Yes / No
Neutral Citation : Yes/No
jas/cda
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CRP.Nos.1710 & 1711 of 2021
SATHI KUMAR SUKUMARA KURUP., J.
jas/cda/srm
To
1.The Additional District Munsif,
Cuddalore.
2.The Section Officer,
Vernacular Records,
Madras High Court.
order made in
CRP.Nos.1710 & 1711 of 2021
and
22.12.2023
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