Madras High Court
Santha vs Thilagam on 22 September, 2023
C.R.P.(PD)Nos.3689, 3707 & 3709 of 2019
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 22.09.2023
CORAM :
THE HONOURABLE MR.JUSTICE V. LAKSHMINARAYANAN
C.R.P(PD)Nos.3689, 3707 & 3709 of 2019
and
CMP.No.24357 of 2019
1.Santha
2.Aswin Kumar
3.Madan Kumar
4.Kousalya .. Petitioners in all CRPs
vs
Thilagam .. Respondent in all CRPs
Prayer in CRP(PD)No.3689 of 2019: Petition filed under Article 227 of
the Constitution of India, against the Fair and Decretal order made in
E.A.No.2540 of 2017 against E.P.No.508 of 2016 in O.S.No.5145 of
2003 dated 30.09.2019 passed by the learned X Assistant Judge, City
Civil Court at Chennai.
Prayer in CRP(PD)No.3707 of 2019: Petition filed under Article 227 of
the Constitution of India, against the Fair and Decretal order made in
E.A.No.2541 of 2017 against E.P.No.508 of 2016 in O.S.No.5145 of
https://www.mhc.tn.gov.in/judis
C.R.P.(PD)Nos.3689, 3707 & 3709 of 2019
2003 dated 30.09.2019 passed by the learned X Assistant Judge, City
Civil Court at Chennai.
Prayer in CRP(PD)No.3709 of 2019: Petition filed under Article 227 of
the Constitution of India, against the Fair and Decretal order made in
E.A.No.1 of 2019 against E.P.No.508 of 2016 in O.S.No.5145 of 2003
dated 30.09.2019 passed by the learned X Assistant Judge, City Civil
Court at Chennai.
(In all CRPs)
For Petitioners : Ms.R.Chithradevi
For Respondent : Mr.N.Nagu Sah
COMMON ORDER
These civil revision petitions arise against an order passed in
E.A.No.1 of 2019 in E.P.No.508 of 2016 in O.S.No.5145 of 2003. The
petitioners before me are the legal representatives of the first
defendant/judgment debtor.
2.The case of the plaintiff is that the plaintiff's father one
S.Jeevarathinam was the allottee and absolute owner of the suit schedule
mentioned property. It is their case that their father had put up a
superstructure over the site and was in possession of the property from
1965 onwards.
https://www.mhc.tn.gov.in/judis
C.R.P.(PD)Nos.3689, 3707 & 3709 of 2019
3.The plaintiff further pleaded that the said Jeevarathinam passed
away on 13.02.1991 leaving behind the plaintiff as the sole legal heir to
inherit the property.
4.Taking advantage of the death of Jeevarathinam, the plaintiff
alleged that defendants 2 and 3 attempted to covet the property to
themselves. They also plead that the construction made by defendants 2
and 3 over the house site is illegal. Consequently, they presented a suit
for the following reliefs:
(a) permanent injunction against defendants 1 to 3 from putting up
any further construction and (b) for mandatory injunction directing
defendants 4 and 5 to take necessary action for the illegal construction
over the suit property without any sanctioned plan.
5. To the said suit, no written statement was filed. Consequently,
the Court set the defendants exparte and passed the following order:
'Suit for permanent injunction and mandatory
injunction and for costs.
No representation for defendants side. Several time
given. Defendants called absent set exparte. Hence claim
proved. Suit is decreed as prayed for with cost.'
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C.R.P.(PD)Nos.3689, 3707 & 3709 of 2019
6.A perusal of the order shows that it has not discussed the issues
that arose in the suit nor has it rendered a specific finding as to how the
plaintiff has proved her claim to the property. Even if the defendants
were to remain exparte, it is expected that the Court should give proper
reasons for the same.
7.An unreasoned judgment is contrary to the provisions of Order
20 of the Code of Civil Procedure. In R.Stella v. V.Antony Francis
(CRP(NPD)No.1303 of 2012 & 871 of 2013 dated 22.10.2019), Mr.
Justice N.Anand Venkatesh has been pleased to hold that such a
judgment is not only illegal, but contrary to law.
8.The High Court sitting under Article 227 of the Constitution of
India can take into consideration such a judgment, even in a collateral
proceeding and set aside the same. I am alive to the fact that the revisions
before me arise against the dismissal of an application filed in Execution
Petition, where specific directions were sought for against defendants 4
and 5. I cannot sustain the decree since the Executing Court itself would
be disabled from discerning from the judgment passed on 26.03.2009 as
to what is the effect of it. A couple of words that “claim proved” is not
sufficient for sustaining the mandatory direction that has been given
against defendants 4 and 5.
https://www.mhc.tn.gov.in/judis
C.R.P.(PD)Nos.3689, 3707 & 3709 of 2019
9.However, I have to take into consideration the fact that if I were
to set aside the decree and leave it as it is, the right of the plaintiff will be
seriously prejudiced. It is not the mistake of the plaintiff that a non-
speaking order has been passed by the Court. Therefore, to balance the
interests of both parties, in exercise of powers under Article 227 of the
Constitution of India, the judgment which is contrary to Order 20 Rule 5
of the CPC is set aside and the following directions are passed.
10.In fine, the judgment and decree in O.S.No.5145 of 2003 dated
26.03.2009 is set aside and consequently, the Execution Petition filed
against the said judgment and decree will stand dismissed. O.S.No.5145
of 2003 will stand restored on to the file of the VI Assistant City Civil
Court, Chennai. The Civil Revision Petitioners, who are the legal heirs of
the deceased first defendant, are impleaded in the suit as defendants 7 to
10. I am impleading them as defendants taking into consideration the
following two aspects:
(i) I do not want to push the plaintiff yet again to a position to
implead the legal representatives, which will be time consuming and
(ii) as there is no dispute in relationship between the deceased
Gowthaman and the civil revision petitioners, they are proper and
necessary parties to the suit.
https://www.mhc.tn.gov.in/judis
C.R.P.(PD)Nos.3689, 3707 & 3709 of 2019
11.Mr.Nagu Sah, learned counsel appearing for the respondents
undertakes to file the amended plaint copy before the Court on
10.10.2023. The amended plaint copy shall show the newly impleaded
defendants 7 to 10 as parties to the suit.
12.Ms.R.Chithradevi, learned counsel appearing for defendants 7
to 10 undertakes to appear before the Court on 10.10.2023. The written
statement filed by the deceased Gowthaman shall be received as a written
statement filed by the newly impleaded parties. A copy of the written
statement shall be served on Mr.Nagu Sah on 10.10.2023.
13.The draft issues shall be filed by the parties on 13.10.2023 and
the Court shall frame the issues on that date.
14.The evidence in the suit should be started on 30.10.2023 and
the trial should be completed on or before 31.03.2024.
15.I make it clear that if the Court gets an impression that any of
the parties are attempting to drag on the litigation, the Court shall reject
such requests and proceed in accordance with law.
16.The time lines fixed by this Court in the said order shall be
strictly adhered to and a report shall be submitted before this Court on
completion of trial, in any event before, 31.03.2024.
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C.R.P.(PD)Nos.3689, 3707 & 3709 of 2019
17.With the above directions, these civil revision petitions are
disposed of. No costs. Consequently, connected miscellaneous petition is
closed.
22.09.2023
Index:Yes/No
Speaking order/Non-speaking order
Neutral Citation:Yes/No
vs
Note: (i) Issue order copy on 25.09.2023.
(ii) Registry is directed to communicate
this order to the learned VI Assistant
City Civil Court, Chennai.
To
The X Assistant Judge, City Civil Court,
Chennai.
https://www.mhc.tn.gov.in/judis
C.R.P.(PD)Nos.3689, 3707 & 3709 of 2019
V. LAKSHMINARAYANAN,J.
vs
C.R.P(PD)Nos.3689, 3707 & 3709 of 2019
and CMP.No.24357 of 2019
22.09.2023
https://www.mhc.tn.gov.in/judis
