Madras High Court
Manimala vs Nagarajan on 5 January, 2024
Author: G.Ilangovan
Bench: G.Ilangovan
C.R.P(MD)No.2741 of 2023
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED:05.01.2024
CORAM
THE HON'BLE MR.JUSTICE G.ILANGOVAN
C.R.P(MD)No.2741 of 2023
and
C.M.P.(MD)No.14263 of 2023
Manimala .. Petitioner/Petitioner/Plaintiff
Vs.
1.Nagarajan
Solaimalaipillai(died)
2.Chandra
3.Jeyaraj
4.Rajangam
Chellamani(died)
5.Murugesan
6.Senthilkumar
7.asthuri
8.Shanmugavalli
9.Kannan
10.Sekar
11.Sumathi .. Respondents / Respondents /
Defendants
https://www.mhc.tn.gov.in/judis
Page No.1/8
C.R.P(MD)No.2741 of 2023
Prayer: Civil Revision Petition filed under Article 227 of the
Constitution of India, to set aside the fair and decreetal order dated
19.09.2023, made in IA.No.1 of 2022 in OS.No.4 of 2017 on the file of
the District Munsif Court, Nilakottai.
For Petitioner : Mr.R.Suriyanarayanan
For Respondent : No appearance
ORDER
This Civil Revision Petition has been filed challenging the fair
and decreetal order dated 19.09.2023, made in IA.No.1 of 2022 in
OS.No.4 of 2017 passed by the District Munsif Court, Nilakottai.
2. The petitioner is the plaintiff filed a suit in O.S.No.4 of 2017
before the District Munsif Court, Nilakottai, seeking various
relieves from the defendants. Pending the trial process, one of the
defendants namely, Solamalipillai died. During his life time, he did
not appear before the trial Court and contested the matter. He
remained exparte and thereafter also he did not come forward to
file petition during his life time. After his death, the petitioner filed
a memo stating that there is no necessity for adding the LRs of
the second defendant-Solamalaipillai. That memo was heard. In
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that memo, other contesting defendants made objection by filing counter.
After hearing both sides, order was passed by the trial Court stating that
claim was also made against the second defendant. On that ground, the
trial Court opined that the LRs of the second defendant must be brought
on record sothat they can put forth their objection or defence, as the case
may be. By this observation, the memo was dismissed. Against which
this petition is preferred. In this revision, notice was ordered to the
respondents and eventhough served, none appeared on behalf of them.
3.The learned counsel for the petitioner submitted that even the
reading of the plaint indicates that no specific relief is sought against the
second defendant and the 2nd defendant is not a party to the partition deed
dated 12.04.2014. But in the observation portion of the trial Court order,
it has been wrongly observed that in the alleged partition deed, the share
was allotted to the deceased. On that ground, the trial Court ordered to
add the LRs and he would further submit that it may not be proper to
proceed the trial process without reading of the prayer portion in the
plaint. The specific observation portion has been stated as under:
“,/ jhth brhj;jpypUe;J fle;j
21/04/2014 njjp 2. 10 Kjy; 13 gpujpthjpfis
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jtpu kw;w gpujpthjpfs; j';fSf;Fs;
tj;jyf;Fz;L rhh;gjptf Mtz vz;/1616-2014d;
go bra;J bfhz;l ghftp!;jp Mtzk;
bry;yj;jf;fjy;y vd tpsk;g[if bra;Jk;.”
From the above, it is clear that no relief is sought for against the second
defendant with regard to the alleged partition deed.
4. Apart from that the learned counsel on record would submit
that when a particular party remained exparte, there is no necessity to add
the LRs. To support his contention, he would rely upon the judgment
reported in 1998(1)CTC423 [Krishnaveni and 4 others v.
Ramachandra Naidu and others]. The relevant portion of the judgment
is as follows:
“12. Sub-Rule (4) to Order 22, Rule 4 was inserted
by the C.P.C. amendment Act, 1976. It is to be noticed
here that there was Madras High Court amendment
even prior to insertion of sub- rule (4) in Rule 4 of
C.P.C. by amendment Act 104 of 1976. The Madras
High Court amendment, reads:-
"The Court whenever it sees fit, may exempt the
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plaintiff from the necessity to substitute the legal
representative of any such defendant who has been
declared ex parte or who has failed to file his written
statement or who having filed it, has failed to appear
and contest at the hearing; and the judgment may in
such case be pronounced against the said defendant
notwithstanding the death of such defendant, and shall
have the same force and effect as if it has been
pronounced before death took place."
From this it is clear that it covers even a
defendant who had been declared exparte. In the new
sub-rule (4) inserted by C.P.C. Amendment Act, 1976,
the earlier amendment made by the Madras High Court
has been incorporated.”
5. In view of the above, this Court is also of the opinion that
there is no necessity to substitute the legal representative of the 2nd
defendant who has been declared exparte.
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6. In the result, this Criminal Revision Petition stands allowed.
The fair and decreetal order dated 19.09.2023, made in IA.No.1 of 2022
in OS.No.4 of 2017 passed by the learned District Munsif, Nilakottai, is
hereby set aside. No Costs. Consequently, connected miscellaneous
petition is closed.
05.01.2024
Index : Yes/No
Internet : Yes/No
NCC : Yes/No
PJL
To
The District Munsif,
Nilakottai, Dindigul District.
https://www.mhc.tn.gov.in/judis
https://www.mhc.tn.gov.in/judis
G.ILANGOVAN, J.
PJL
and
05.01.2024
https://www.mhc.tn.gov.in/judis
