Madras High Court
D.Vimala Shanthi vs V.Sobhana Kumar on 18 July, 2023
C.R.P.(MD).Nos.1794 and 1795 of 2017
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED : 18.07.2023
CORAM:
THE HONOURABLE MR.JUSTICE C.KUMARAPPAN
C.R.P.(NPD)(MD)Nos.1794 and 1795 of 2017
and
C.M.P(MD) No.9582 of 2017 in C.R.P(MD) No.1795 of 2017
C.R.P(MD) No. 1794 of 2017:
D.Vimala Shanthi
... Revision Petitioner/Petitioner/
Respondent
-vs-
V.Sobhana Kumar ... Respondent/Respondent/Petitioner
PRAYER: Civil Revision Petition is filed under Article 227 of the
Constitution of India, against the return order passed in Unnumbered
I.A.No.Nil of 2016 in I.D.O.P.No.30 of 2015, dated 22.06.2017, on the file of
the learned District Judge, Kanyakumari at Nagercoil.
For Petitioner : Mr.C.Kishore
For Respondent : Mr.K.P.Krishnadoss
https://www.mhc.tn.gov.in/judis
C.R.P.(MD).Nos.1794 and 1795 of 2017
C.R.P(MD) No. 1795 of 2017:
D.Vimala Shanthi
... Revision Petitioner/Petitioner/
Respondent
-vs-
V.Sobhana Kumar ... Respondent/Respondent/Petitioner
PRAYER: Civil Revision Petition is filed under Article 227 of the
Constitution of India, against the return order passed in Unnumbered
I.A.No.Nil of 2016 in I.D.O.P.No.30 of 2015, dated 22.06.2017, on the file of
the learned District Judge, Kanyakumari at Nagercoil.
For Petitioner : Mr.C.Kishore
For Respondent : Mr.K.P.Krishnadoss
COMMON ORDER
The present Civil Revision Petitions have been filed by the petitioner
under Article 227 of the Constitution of India, to set aside the return order
passed in Unnumbered I.A.Nos.Nil of 2016 in I.D.O.P.No.30 of 2015, dated
22.06.2017, on the file of the learned District Judge, Kanyakumari at
Nagercoil.
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C.R.P.(MD).Nos.1794 and 1795 of 2017
2. The revision petitioner is the petitioner/respondent before the trial
Court. She filed this Civil Revision Petition against the unnumbered Section
5 of Limitation Act application and an unnumbered Order 9 Rule 13 of
C.P.C. application.
3. For the sake of convenience, the parties will be referred to as per the
litigative status before the trial Court.
4. It appears that the petitioner/husband has filed an application for the
relief to dissolve the marriage solemnized on 26.08.1993. While the
application was pending, the learned trial Judge has passed an order on
08.08.2016, after set the respondent/wife exparte and ultimately, granted the
relief of divorce to the petitioner/husband. Against the said order, the
respondent/wife has filed an application to set aside the exparte decree along
with the delay condonation application. However, both the applications have
not been numbered and have been returned as per the following
endorsements:
“Returned on 18.01.2017:
“This Court has disposed off the cases by
considering the case records and evidence on had
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C.R.P.(MD).Nos.1794 and 1795 of 2017
pronounced considered Judgment on merits, How this
petitioner is entertainable. Time one month”.
Thereafter represented on 13.02.2017 and the
same was further returned on 16.02.2017:
“(1) How this petition is maintainable.
(2) Any rulings in the supporting of the
representation may be submitted. Time one month”
and thereafter, represented on 15.03.2017 and the
same was also returned on 22.06.2017:
“(1) Previous defects not rectified
(2) Addl. Fly sheet to be attached. Time one
month”.
Against the above return in unnumbered I.A.Nos.Nil of 2016, the instant
Revision petitions have been filed.
5. The learned counsel for the petitioner/wife would submit that the
very order passed by the learned trial Judge is contrary to the provisions of
Order 17 Rule 2 of C.P.C, and also would submit that the revision
petitioner/wife has not filed a counter statement and that she has not cross
-examined the petitioner's evidence. At this juncture, the trial Court cannot
pass an order on merits. Therefore, the very return without numbering the
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C.R.P.(MD).Nos.1794 and 1795 of 2017
Section 5 application and under Order 9 Rule 13 of C.P.C application is
illegal. Hence, he prayed to allow these applications.
6. In support of his submission, the learned counsel for the petitioner
has relied upon the judgment of this Court reported in 2010 (1) MWN (Civil)
612 (Muneeswari vs. Vanmathi) and Paragraph Nos.20, 21 and 22 are
extracted as follows:
“20. From the above decisions, it is clear that
for warranting the Application under Order 17, Rule
3 of C.P.C., it is essential that the Court could
proceed only when the parties were present, meaning
thereby, all the parties of the suit. Otherwise, if the
parties were not present, the Court could proceed
only under Order 17, Rule 2, Order 17, Rule 2 of
CPC provides that on the failure of any or both of the
parties to appear on the adjourned date of hearing,
two alternative courses are open to the Court viz., the
first one is to dismiss the Suit for default, if the
plaintiff is absent of decree the Suit ex parte in case
of absence of the defendant. The second course is
instead of following any of the above courses
contemplated by Order 9, the Court may pass such
other order as it thinks fit.
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C.R.P.(MD).Nos.1794 and 1795 of 2017
21. It is relevant to point out that before
amendment of Order 17, Rule 3 in 1976, this Rule did
not make any distinction in the absence or presence
of the party on the adjourned date of hearing and
could proceed with the case forthwith if the party had
defaulted in carrying out the purpose for which the
adjournment had been granted to it. However, after
the amendment, the position is quite distinct and
Court can proceed under Order 17, Rule 3 only if the
parties are present, but if the parties or any of them is
absent, the Court has no option but to act under
Order 17, Rule 2 of C.P.C.
22. Hence, in the present case, where the
plaintiff was absent on the adjourned date hearing
and no evidence of the plaintiff or substantial part
thereof had been recorded, in view of the settled
position of law, the Suit has to be dismissed in default
by invoking the provisions of Order 17, Rule 2 and
not by resorting to Order7, Rule 3 of C.P.C.
7. The learned counsel for the petitioner has also relied upon the
judgment of this Court reported in 2014 (4) L.W. 193 (Vijaya and others Vs.
Ranganathan and others) and Paragraph No.17 is extracted as follows:
17. Having regard to the judgments relied upon by
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C.R.P.(MD).Nos.1794 and 1795 of 2017
the learned counsel for the appellants and the
submissions made by the learned counsel on either side,
I am of the considered view that it is understandable that
since the fourth defendant is working in the army, he
cannot avail leave as and when he wishes. Therefore, the
non appearance of the fourth defendant at time of trial is
understandable. Even in that event, the trial court could
have set him exparte and an exparte decree could have
been passed, instead of deciding the matter on merits
under order 17 Rule 2 C.P.C.”
8. The learned counsel for the petitioner has further relied upon the
judgment of this Court reported in 2013 (1) L.W 737 ( Arunachalam Vs.
Valliyappan) and Paragraph Nos.3 and 12 are extracted as follows:
“3. The epitome and the long and short of the
germane facts absolutely necessary for the disposal of
this Civil Revision Petition would run thus:
The revision petitioner being the plaintiff filed the suit
in O.S.No.66 of 2007 for mandatory injunction and
perpetual injunction. The written statement was filed
resisting the suit. Whereupon, the issues were framed.
On the side of the plaintiff, the evidence was adduced
and the plaintiff's witnesses were cross-examined by
the defendant. However, when the matter was posted
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C.R.P.(MD).Nos.1794 and 1795 of 2017
for the defendant's side, no evidence was let in and for
that matter, neither the Advocate for the defendant nor
the party appeared. Thereafter, the lower Court
proceeded to decide the matter order XVII Rule 2 of
the Code of Civil Procedure. Whereupon the defendant
filed the application under Section 5 of the Limitation
Act to get the delay condoned in filing an application
under Order IX Rule 13 of the Code of Civil
Procedure. The counter affidavit was also filed
resisting the application filed under Section 5 of the
Limitation Act, Whereupon the lower Court condoned
the delay.
12. The aforecited precedent of the Honourable
Apex Court is the recent decision governing the field.
A mere running of the eye over it would clearly
indicate and exemplify that if a decree is passed
without recording evidence at least partly, of the
absentee party, the question of treating it as the one
passed under Order XVII Rule 2 of the Code of Civil
Procedure, does not arise and it is deemed to be an
exparte decree only and such a decree can be got set
aside on petitioning the same trial Court.”
9. Per contra, the learned counsel appearing for the respondent would
submit that since the learned trial Judge has passed an order on merits, the
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C.R.P.(MD).Nos.1794 and 1795 of 2017
only remedy available to the petitioner/wife is under Section 96 of C.P.C., and
not to file an application to set aside the exparte decree. Hence, he prayed to
dismiss the applications.
10. This Court has given anxious consideration to the submissions of
the learned counsel on either side.
11. Before embarking into the facts of the case, in order to understand
the case more effectively, it is relevant extract Order XVII Rule 2 of CP.C, the
same is as under:
Order XVII – ADJOURNMENTS
1.....
“2. Procedure if parties fail to appear on day
fixed.- provides that where, on any day to which the
hearing of the suit is adjourned, the parties or any of
them fail to appear, the Court may proceed to dispose of
the suit in one of the modes directed in that behalf by
Order 9 C.P.C or make such other order as it thinks fit”.
[Explanation.- Where the evidence or a substantial
portion of the evidence of any party has already been
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C.R.P.(MD).Nos.1794 and 1795 of 2017
recorded and such party fails to appear on any day to
which the hearing of the suit is adjourned, the Court
may, it its discretion, proceed with the case as if such
party were present.]”
12. As per the above Section, if any of the parties fails to appear on any
given day, the Court may proceed to dispose of the suit in one of the modes
directed by Order IX of C.P.C.
13. However, in the explanation to Order XVII Rule 2 of C.P.C, it has
been stated that if the substantial portion of the evidence of any parties has
already been recorded and in that occasion, any of the parties fails to appear,
then the Court can proceed as per its discretion either on merits or by way of
ex parte. At this juncture, it is relevant to extract Order IX Rule 13 of C.P.C
Order IX – Appearance of parties and
consequence of Non-appearance:
“.........13. Setting aside decree ex parte
against defendant. -- In any case in which a decree
is passed ex parte against a defendant, he may apply
to the Court by which the decree was passed for an
order to set it aside; and if he satisfies the Court that
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C.R.P.(MD).Nos.1794 and 1795 of 2017
the summons was not duly served,or that he was
prevented by any sufficient cause from appearing
when the suit was called on for hearing, the Court
shall make an order setting aside the decree as
against him upon such terms as to costs, payment
into Court or otherwise as it thinks fit, and shall
appoint a day for proceeding with the suit;
Provided that where the decree is of such a
nature that it cannot be set aside as against such
defendant only it may be set aside as against all or
any of the other defendants also:
[Provided further that no Court shall set aside
a decree passed ex parte merely on the ground that
there has been an irregularity in the service of
summons, if it is satisfied that the defendant had
notice of the date of hearing and had sufficient time
to appear and answer the plaintiff's claim]
[Explanation.- Where there has been an
appeal against a decree passed ex parte under this
rule, and the appeal has been disposed of on any
ground other than the ground that the appellant has
withdrawn the appeal, no application shall lie under
this rule for setting aside that ex parte decree.”
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C.R.P.(MD).Nos.1794 and 1795 of 2017
From the conjoint reading of Order IX Rule 13 r/w Order XVII Rule 2, it is
germane that, whenever the defendant was not participated in trial and absent,
no decree on merits could be passed.
14. Further while perusing judgments relied by the learned counsel for
the petitioner, it would emerge that for the absence of the parties and when
the evidence was not recorded, the trial Court should have disposed the
matter as per Order 17 Rule 2 of C.P.C., and not on merits.
15. In order to decide the issue on hand, it is relevant to extract the
observation of the learned trial Judge in the order of I.D.O.P.No.30 of 2015.
The learned Judge has recorded in paragraph No.7 as follows:
“7. In spite of several chances, the respondent
had not filed counter. Therefore, she was set exparte.
The fact that the respondent remained exparte would
go to show that the respondent admits the contention of
the petition and she has no valid defence to rebut the
same. That is why, she had remained exparte and left it
at that. That shows the respondent had no respect for
the petitioner and she had by her act consented for the
divorce. That is the only presumption available to this
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C.R.P.(MD).Nos.1794 and 1795 of 2017
Court, District Court, Kanniyakumari at Nagercoil, the
matrimonial Court under the Indian Divorce Act in the
facts and circumstances of this case as gathered from
the evidence of the petitioner and based on records
under Ex.P.1 to P3. This presumption is available to
the Court under Section 114 of the Indian Evidence
Act, which is a strong presumption based on materials
before the Court. Therefore, this Court is satisfied that
the petitioner had proved his contention regarding
desertion and cruelty. Therefore, the petitioner is
entitled to the relief of dissolution of marriage between
the petitioner and respondent dated 26.08.1993. the
point for consideration -1 is answered in favour of the
petitioner and against the respondent.”
16. Therefore, from the above observation, it is very much clear that
only at the stage of filing of the counter statement, the respondent/wife was
set ex parte. However, the trial Court proceeded with the case on merits,
which is absolutely illegal, in the back drop of the above facts, law and
precedent. Thus, the very submissions of the learned counsel for the
respondent that only remedy available to the revision petitioner is under
Section 96 of C.P.C. is contrary to Order XVII Rule 2 r/w Order IX Rule 13
of C.P.C.
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C.R.P.(MD).Nos.1794 and 1795 of 2017
17. Therefore, this Court is of the firm view that the very return
endorsement made by the Court below is liable to be interfered with.
Therefore, the Court below is directed to number the Section 5 application
and dispose of the case according to law. Further subject to the orders passed
in the Section 5 application, the Court below is directed to number the
another unnumbered application to set aside the exparte decree.
18. Considering the pendency of the issue since 2015, the trial Court is
expected to dispose of the petition as expeditiously as possible.
19. In the result, both the Civil Revision Petitions stand allowed. There
shall be no order as to costs. Consequently, the connected Miscellaneous
Petition is closed.
18.07.2023
NCC : Yes/No
Index : Yes / No
Internet : Yes / No
ebsi
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C.R.P.(MD).Nos.1794 and 1795 of 2017
To
1. The District Judge,
Kanyakumari,
Nagercoil.
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C.R.P.(MD).Nos.1794 and 1795 of 2017
C.KUMARAPPAN,J.
ebsi
C.R.P(NPD)(MD)Nos.1794 and 1795 of 2017
18.07.2023
https://www.mhc.tn.gov.in/judis
