Madras High Court
Jaya Poornachandra Rao vs Madras Race Club on 13 March, 2023
CRP.No.82 of 2023
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 13.03.2023
CORAM
THE HONOURABLE MRS. JUSTICE T.V.THAMILSELVI
C.R.P.No.82 of 2023
and
CMP.No.601 of 2023
Jaya Poornachandra Rao
Alias Vadlamannati Poornachandra Rao ... Petitioner
/Vs/
1. Madras Race Club
Represented by its
Additional Secretary,
V.R.Srinivasan,
Guindy, Chennai-600 032.
Aruna Devi(died)
2. Jaganatha Pandian
3. Jayasimhna Pandian
4. Gopal
5. Bay Oriental Reality Pvt Ltd.,
Rep.by its Director,
Dr.Saleem Ibrahim Brothers,
College Road, Chennai-600 006.
1/16
https://www.mhc.tn.gov.in/judis
CRP.No.82 of 2023
6. Sri Venkatachalapathy Nagar
Welfare Association,
Vadapalani Andavar Street,
Valasaravakkam.
7. Sasan Chemicals Limited,
21, Gopala Krishna Road,
T.Nagar, Chennai-600 017. ... Respondents
PRAYER : Civil Revision Petition filed under Article 227 of Constitution
of India, to set aside the fair and decretal order dated 07.11.2022 made in
IA.No.4 of 2022 in OS.No.11761 of 2010 on the file of the learned XVII
Additional City Civil Judge, Chennai.
For Petitioner : Mr.N.S.Siva Kumar
For Respondents : Mr.L.Dhamodaran for R1
: Mr. Vaibhave R.Venkatesh for R5
: R2 to R4, R6 and R7 dispensed with
ORDER
This petition has been filed to set aside the order passed by the
learned XVII Additional Judge, City Civil Court, Chennai in IA.No.4 of
2022 in OS.No.11761 of 2010 dated 07.11.2022.
2. The petitioner herein is the first defendant in the suit in
OS.No.11761 of 2010 on the file of XVII Additional City Civil Court,
https://www.mhc.tn.gov.in/judis
CRP.No.82 of 2023
Chennai. The said suit was filed by the first respondent herein/plaintiff
Madras Race Club for the relief for permanent injunction and other
consequential reliefs against the eight defendants. Originally, this Civil
Revision Petition is filed by the first defendant in OS.No.11761 of 2010 on
the file of the learned XVII Additional Judge, City Civil Court, Chennai.
3. It is the case of the Revision Petitioner that the petitioner is the first
defendant in the suit in OS.No.11761 of 2010 filed by Madras Race Club as
CS.No.366 of 2004 on the file of the Original Side of the High Court.
Subsequently, on pecuniary jurisdiction, the case was transferred to the file
of the learned XVII Additional Judge, City Civil Court, Chennai and re-
numbered as OS.No.11761 of 2010. Initially, the suit was filed on the
Original Side of the High Court and interim injunction was granted to the
plaintiff. Subsequently, the petitioner herein as first defendant engaged
counsel who had raised objection to the injunction already granted and
which was made absolute. Meanwhile, the earlier counsel for the petitioner
was elevated as Judge of the High Court. Subsequently, the petitioner
suffered from heart ailment and he was under the treatment and he had
undergone Angioplasty at Kaliyappa Hospital, Chennai. Subsequently, he
https://www.mhc.tn.gov.in/judis
CRP.No.82 of 2023
left for his native place in Andhra Pradesh and he is also heart patient and
once again he had undergone heart problems. Meanwhile, the Madras Race
Club through his Counsel, filed a petition before the learned Principal
Judge, City Civil Court, Chennai seeking transfer of this petition in
Tr.OP.No.234 of 2012 which was filed by the first respondent herein for
joint trial of the present suit along with the suit in OS.No.6039 of 2003. The
transfer original petition was partly allowed. The prayer of the plaintiff/
Madras Race Club for Joint trial was not ordered. Aggrieved by the same,
he had filed CRP(PD) No.6 of 2014, in which, interim stay was granted.
Subsequently, the Civil Revision was disposed of on 17.02.2021 with the
directions that both the suits shall be disposed of within a reasonable period
of six months from the date of receipt of a copy of the order. Meanwhile, the
same Madras Race Club filed Transfer Civil Miscellaneous Petition before
the High Court in Tr.CMP.No.268 of 2022 which was disposed of by this
Court vide order dated 23.08.2022.
4. The learned counsel for the first respondent would submit that the
affidavit filed by the revision petitioner having not assigned any reason for
non appearance in those cases and not given any good cause for the delay,
https://www.mhc.tn.gov.in/judis
CRP.No.82 of 2023
the same was rightly appreciated by the trial court which needs no
interference. To support his arguments, he relied on the proposition laid
down by the Hon'ble Supreme Court in the case M/s.Olympic Cards
Limited, rep.by its Managing Director H.Noormohamed vs. Standard
Chartered Bank, rep by its Portfolio Manager Mrs. Parvathy
Ramakrishnan reported in 2012 0 Supreme (Mad) 4875 the relevant
Paragraph is extracted here under :
24. Application under Order IX, Rule 7 CPC:- Be that as it may, let
us consider the merits of matter. In an application under Order IX, Rule 7
C.P.C, Court has to see the only points for consideration are:-
(1) Whether there was due service of summons:
(2) Whether there was good cause for previous non-appearance at
hearing.
Overriding consideration being rendering substantial justice.
Expression “ good cause” in Order IX Rule 7 of CPC or “ sufficient cause”
in Order IX Rul3 13 CPC have to receive liberal construction so as to
advance substantial justice.
In the above judgment, it is insisted that there was good cause or sufficient
cause for previous non appearance .
5. By way of reply, the learned counsel for the revision petitioner
would submit that he relied on the reported ruling of the Hon'ble High Court
https://www.mhc.tn.gov.in/judis
CRP.No.82 of 2023
rendered in Rajasekar /Vs/ Govindammal (late), 2020-4-L.W-481 – in
support of his contentions that Article 137 of Limitation Act does not apply
to an application under Order IX Rule 7 of CPC and the relevant portion in
Paragraph 24 is extracted here under
24. I therefore find that those Judgment, viz., the judgment in
Visalakshi Vs. Umapathy reported in 2015-3-L.W.332 = 2015 (5) CTC 67,
Judgment in G.Krishnasamy V.G.Seenivasan and another made in CRP
(MD) No.2819 of 2018 (PD) No.2412 of 2016 dated 23.08.2016, cannot be
held to be good law, in as much as, they are conflict with the decisions of
the Hon'ble Supreme Court in Sangram Singh Vs. Election Tribunal, Kotah
and others, case reported in (1956) 69 L.W.1 = AIR 1964 SC 993. For the
foregoing reasons, I conclude that Article 137 of the Limitation Act, does
not apply to application under Order 9 Rule 7 of the Code of Civil
Procedure and the same can be filed at any time before the judgment is
delivered in the suit or proceeding”.
6. To support his arguments, he relied on the proposition laid down
by the Hon'ble High Court in the case of R.Baskaran / vs/ N.Kamatchi,
2018-2-L.W480, the relevant Paragraph No.6 is extracted here under:
6. The time limit for setting aside the exparte order has been
settled by this Court and therefore, delay by itself cannot be a ground for
setting aside the exparte order and the above case is squarely applicable
to the present case and therefore considering the fact and circumstances
of the case and therefore, considering the facts and circumstances of the
https://www.mhc.tn.gov.in/judis
CRP.No.82 of 2023
case, the order passed by the learned Additional District Judge,
Pudukkotai made in IA.No.71 of 2015 in OS.No.12 of 2012 is set aside.
Accordingly, the Civil Revision Petition is allowed. The learned Additional
Subordinate Judge, Pudukkottai is directed to dispose of the suit in
OS.No.12 of 2012, pending on its file within a period of six months from the
date of receipt of a copy of this Order. No costs. Consequently, connected
Miscellaneous Petition is closed.
7. To support his arguments, he relied on the proposition laid down
by the Hon'ble High Court in the case of S.Santha /vs/ 1.
M.S.M.K.Packlam, 2.M.S.K.K.Ramesh reported in 2016 SCC OnLine
Mad 31323, the relevant Paragraph Nos.10, 13 and 14 are extracted here
under :
“ 10 .In another decision of this Court in the case of Baskar v.
Jeeva @ Jeevayan (CDJ 2015 MHC 820), it has been held below:
"5. Order 9 Rule 6 (1)(a) C.P.C. provides that the Court may make an order
that the suit shall be heard ex parte if it is proved that the summons on
the defendant was duly served. Such a decision to hear ex parte is
subject to power of the Court to set aside the same. Order 9 Rule 7 C.P.C.
does not contemplate the filing of a petition to set aside the order passed
in a suit to the effect that the suit be heard an ex parte. It simply states
that when the court has adjourned the hearing of the suit ex parte, and the
defendant, at or before such hearing, appears and assigns good cause for
his previous non-appearance, the Court may direct upon such terms as to
costs or otherwise, that he may be heard in answer to the suit as if he had
https://www.mhc.tn.gov.in/judis
CRP.No.82 of 2023
appeared on the day fixed for his appearance. The said proviso has been
interpreted in a number of decisions in the following manner.
(i) An application under Order 9 Rule 7 C.P.C. shall be need only if the
defendant wants status quo ante in respect of the proceedings to be
restored; and
(ii) If he does not want the status quo ante to be restored and he wants to
take part from the date on which he enters appearance, even without such
an application, he can participate in the proceedings as of right.
6. In this case, though there is enormous delay, the suit has not attained
finality till the respondent entered appearance and filed the application
under Order 9 Rule 7 C.P.C. Strictly speaking, he cannot be prevented
from taking part in the proceedings from the date of appearance, namely,
the date of filing the said petition. As the suit had not attained finality
either by passing of an interim decree or preliminary decree or final
decree, the petition filed by him under Order 9 Rule 7 C.P.C. would not be
rejected as belated or one filed beyond the period of limitation. Since
summons had not been served directly and only substituted service was
effected by paper publication, even after passing of an ex parte decree,
the Judgment Debtor can file a petition under Order 9 Rule 13 of C.P.C. to
set aside the ex parte decree.
7. It shall be pertinent to note that even after passing of ex parte decree,
the defendant can file an application under Order 9 Rule 13 C.P.C. to set
aside the ex parte decree besides having a right to file an appeal against
the ex parte decree without even seeking an order setting aside the ex
parte decree. The fact that summons was not duly served is also said to
be one of the valid reasons for setting aside ex parte decree. In this case,
as pointed out supra, no decree has been passed and hence, the
respondent would not be prevented from taking part in the proceedings
from the date on which he entered appearance. However, besides citing
the fact that summons was not duly served on him and on the other hand,
https://www.mhc.tn.gov.in/judis
CRP.No.82 of 2023
it was served by substituted service by effecting publication while he was
away from the suit village, he has assigned valid reasons for his non-
appearance from the date of first hearing of the suit till the date of his
filing an application under Order 9 Rule 7 C.P.C. The learned trial Judge
accepted the genuineness of the reasons assigned by the respondent and
allowed the petition, by the order which is impugned in the present
revision. This Court does not find any infirmity or illegality in the order
passed by the trial court."
13 It is clear from the above decisions that for an application
filed under Order 9 Rule 7 of the Code of Civil Procedure, no limitation
period is prescribed and that it is open to the Court to condone the
absence and set aside the ex parte order or permit the party to take part
in the proceedings at any stage of the proceedings.
14.Considering the facts and circumstances of the case and in the
light of the decisions of this Court as well as the Hon'ble Supreme Court
(cited supra), this Court is inclined to dismiss the Civil Revision Petition.
since there is no time limit to file application under Order IX Rule VII CPC,
having came to know about the exparte order, immediately, he filed an
application along with statement, but, the Trial Judge without appreciating
the reason assigned in the affidavit erroneously dismissed the same. Hence,
the learned counsel prayed to allow the said petition.
https://www.mhc.tn.gov.in/judis
CRP.No.82 of 2023
8. It is the contention of the plaintiff that he was inducted in the suit
property as lessee and he is in natural possession and enjoyment of the huge
area running about 12.53 acres land comprising in Block 15 and 16 of
Velacherry Village, Saidapet Taluk, Chennai and he was put in question of
said extent of land by one Venkata Narayana Rao under registered lease
deed dated 26.07.1927. Thereafter ten (10) years lease was renewed and
subsequently another 10 years was renewed. Now,according to him even
after expiry of lease period he is continues to be in possession and
enjoyment of large extent of land as lessee by holding over. Further, the
plaintiff submits that the defendant caused unlawful interference. Hence,
they filed a suit for permanent injunction.
10. The first defendant said to be the owner of the property and
second defendant is first defendant's sister and 3rd and 4th defendants are the
third party and they are plaintiff in other suits. The fifth defendant is also
another third party and the sixth defendant is the contested defendant who is
purchaser of the portion of the property. Now, the first defendant/revision
petitioner filed a suit in OS.No.3437 of 2021 pending before the XI
Additional Court for the relief of declaration and to declare the sale deed as
https://www.mhc.tn.gov.in/judis
CRP.No.82 of 2023
null and void. The first defendant is also one of the parties in OS.No.3437
of 2021. The first respondent already filed CRP.6 of 2014 for joint trial , the
same was partly allowed. He filed another transfer Miscellaneous Petition in
Tr.CMP.268/2022, the same was dismissed by this Court stating that the
first respondent/defendant and their only interest is that they were inducted
as part of the suit property as a tenant so they are not entitled to title in
respect of the suit property . So the suit is filed comparatively less than
other suits filed by the various reliefs sought by the respondents.
Accordingly, this Court was not inclined to transfer the proceedings and the
same was dismissed. Now, the issues were framed. The matter is pending
before the trial Court. After the disposal of CRP No.6 of 2014, he came to
know about the suit proceedings and he filed applications in IA.Nos.2 and
3 of 2022 to appoint an Advocate Commissioner and injunction but before
that he was informed that already he was set exparte. Immediately, he filed
an application to set aside the exparte order in IA.No.4 of 2022. In that
application, notice was served, the first respondent herein appeared and
raised his objection by stating that no reasons assigned for inordinate delay
and the medical proof was not attached for his illness. Considering the
said submission, the trial Court dismissed the said application stating that
https://www.mhc.tn.gov.in/judis
CRP.No.82 of 2023
the reason assigned for delay is not proper..
11. Perusal of the materials available on records reveals that in the
year 2010, the first respondent has filed a suit for permanent injunction
claiming himself as a tenant. Notice was served, but, the first defendant not
filed any written statement. Admittedly, he is residing at Vijayawada,
Andhra Pradesh. He remains ex parte. Now, he came to know that he was
ex-parte, nearly about 10 years later he has filed application to set aside the
order along with written statement. The reason for the delay he claimed that
he was aged about 70 years and due to medical illness he was not able to
follow, besides the earlier counsel who followed the suit proceedings up to
2012 before his elevation and thereafter lack of a communication he was not
able to follow the suit proceedings. Further, the sister/second defendant also
died. Now, the son of the first defendant who completed the graduation
taking earnest steps to follow the suit proceedings. Hence, he prayed to set
aside the findings of the trial court for the reason that Article 137 of
Limitation Act does not require time limitation to file a petition under Order
IX Rule 7 CPC.
https://www.mhc.tn.gov.in/judis
CRP.No.82 of 2023
12. However, the learned counsel for the first respondent raised
strong objection by stating that the affidavit filed by the revision petitioner
does not contain any valid reason to condone the delay and the trial Judge
has rightly held that it needs no interference. On seeing the facts of the case
from the year 2004 onwards there was a dispute regarding ownership of the
property between the petitioner and the respondents and other third parties
also claimed right over the property. Based up on the purchase, the first
respondent herein also disputing the title of the revision petitioner but
admitted fact is that the first respondent herein has been inducted as a tenant
and he is holding right over the property. Now, the contention of the
revision petitioner is that inspite of interim order the first respondent has put
up construction by violating the order passed by this Court. On an earlier
occasion when the first respondent prayed for joint trial, the same was
accepted and a direction was given to commence joint trial. However, the
transfer CMP filed by the first respondent was not acceptable by this Court.
So, the dispute between the parties are to be solved by adducing evidence
and not by getting exparte decree , because the subject property in issue is
vast extent of 12 acres of land in the heart of the City of Chennai and the
title of the property as well as the possession as well as other rights
https://www.mhc.tn.gov.in/judis
CRP.No.82 of 2023
comprised with the property is to be tried by adducing evidence on both
sides. Further, if opportunity is not given to the revision petitioner, his right
over the property will be defeated. Further more, admittedly, the revision
petitioner is aged about 70 years and he is suffering with age old ailments
and he is not able to follow the proceedings. Due to the said lacuna, the first
respondent is not entitled to take advantage of that. As a plaintiff the first
respondent has to prove his case and he should not fall up on the loop holes
of the revision petitioner/first defendant. Therefore, the reason assigned by
the trial judge is liable to be set aside.
13.Accordingly, the Civil Revision Petition stands allowed and the
impugned order in IA.No.4 of 2022 in OS.No.11761 of 2010 dated
07.11.2022 on the file of the learned XVII Additional City Civil Judge,
Chennai is hereby set aside. No costs. Consequently, the connected civil
miscellaneous petition is closed.The trial court is directed to dispose the
case within a period of six months from the date of receipt of a copy of this
order.
13.03.2023
Vv
https://www.mhc.tn.gov.in/judis
CRP.No.82 of 2023
To
1. The XVII Additional City Civil Judge,
Chennai
https://www.mhc.tn.gov.in/judis
CRP.No.82 of 2023
T.V.THAMILSELVI, J.
Vv
C.R.P.No.82 of 2023
and
CMP.No.601 of 2023
13.03.2023
https://www.mhc.tn.gov.in/judis
CRP.No.82 of 2023
https://www.mhc.tn.gov.in/judis
