Madras High Court
Palaniappan vs Rukmani on 6 November, 2024
C.R.P.(PD).Nos.2337 & 2338 of 2015
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 06.11.2024
CORAM:
THE HONOURABLE MR.JUSTICE V.LAKSHMINARAYANAN
C.R.P.(PD).Nos.2337 & 2338 of 2015
and M.P.Nos.1, 1 of 2015
Palaniappan .. Petitioner
(in all cases)
Vs.
1.Rukmani
2.Velusamy
3.Venkatesan @ Devakumar .. Respondents
(in all cases)
Prayer in C.R.P.(PD.No.2337 of 2015: This Civil Revision Petition is filed
under Article 227 of the Constitution of India, praying to set aside the order
dated 17.04.2014 in I.A.No.415 of 2011 in O.S.No.404 of 2004 on the file of
the District Munsif cum Judicial Magistrate Court, Paramathi.
Prayer in C.R.P.(PD.No.2338 of 2015: This Civil Revision Petition is filed
under Article 227 of the Constitution of India, praying to set aside the order
dated 17.04.2014 in I.A.No.289 of 2014 in O.S.No.404 of 2004 on the file of
the District Munsif cum Judicial Magistrate Court, Paramathi.
(In both cases):
1/12
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C.R.P.(PD).Nos.2337 & 2338 of 2015
For Petitioner : Mr.S.Baskaran
For Respondents : Mr.R.Vivek
COMMON ORDER
These Civil Revision Petitions arises at the instance of the plaintiff.
2.The property originally belonged to one Karuppagoundar
S/o.Rajagounder. He purchased the property in the year 1946. Thereafter, he
settled the property in favour of his two daughters, Rasaammal and
Palaniammal. The said Rasaammal was entitled to common 1/4th share in the
suit property. Rasaammal sold her 1/4th share in favour of the plaintiff and his
wife Lakshmi by way of registered sale deed dated 04.12.1992. The
remaining 1/4th portion belonged to the 1st defendant. The plaintiff admitted
that the 2nd defendant Rukmani's husband one Chinnu @ Chellappan was
entitled to 1/2 share in the suit property. He died and therefore, his wife
Rukmani and sons Velusami and Venkatesan @ Devakumar succeeded to the
1/2 share. The plaintiff pleaded he convened a Panchayat on 06.04.2003 and
sought for division of the property. No division was not effected to the
satisfaction of the plaintiff. Hence, he filed a suit for partition and separate
possession and seek his 1/4th share of the property.
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C.R.P.(PD).Nos.2337 & 2338 of 2015
3.The suit was originally presented before the Subordinate Court at
Namakkal. By virtue of enhancement of pecuniary jurisdiction of the District
Munsif Courts, the suit was transferred to the file of the District Munsif cum
Judicial Magistrate at Paramathi and re-numbered as O.S.No.404 of 2004.
4.In the said suit, summons were served on all the defendants. Yet they
remained exparte. An exparte preliminary decree came to be passed on
27.02.2006. Thereafter, the petitioner / plaintiff filed I.A.No.417 of 2009
seeking for appointment of an Advocate Commissioner and to pass a final
decree. In the said proceedings, notice was ordered to the respondents /
defendants. Notice was also served and they engaged a counsel. Arguments
were heard in the final decree application and it also came to be allowed on
18.08.2010. An Advocate Commissioner was appointed who visited the suit
property on 09.10.2010.
5.At that stage, the defendants filed an application to condone the delay
of 1820 days in filing the application to set aside the exparte preliminary
decree. The defendants pleaded that the 4 th defendant is mentally challenged
and therefore, the decree passed by the Trial Court without appointing a
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C.R.P.(PD).Nos.2337 & 2338 of 2015
guardian for him is unsustainable. The plaintiff pointed out to the Court that
the petition to condone the delay also suffers from the same infirmity. He
urged no petition had been filed to appoint any of the petitioners / defendants
as the legal guardian for the mentally challenged person namely the 4 th
defendant. Thereafter, an application was filed in I.A.No.289 of 2014 by the
2nd defendant / mother of the 4th defendant, seeking to appoint her as his
guardian.
6.In the application filed for condonation of delay, the 3rd defendant
entered the witness box and deposed as P.W.1. One Dr.Sivakumar, entered
the witness box and deposed as P.W.2. The plaintiff entered the witness box
and marked the summons that had been served on the defendants at the time
of preliminary decree as well as the vakalat that had been filed on behalf of
the defendants / respondents at the time of the final decree proceedings. The
plea of the plaintiff was that at no point of time, it was disclosed to the Court,
that the 4th defendant was a mentally challenged person and therefore, they
are not entitled to take the said plea at the belated stage. To substantiate their
case, the petitioners had filed Ex.P1 to P4, namely the medical records issued
by the hospitals. A noteworthy one is Ex.P4, a certificate that had been issued
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C.R.P.(PD).Nos.2337 & 2338 of 2015
by NIMHANS Hospital at Bangalore, stating that the 4th defendant is mentally
challenged.
7.On a consideration of the pleas raised by the parties, the learned Trial
Judge appointed the 2nd defendant / mother as the guardian for the 4th
defendant and also condoned the delay in filing the application to set aside the
exparte preliminary decree on payment of cost of Rs.3,000/-.
8.Aggrieved by the same, the plaintiff is on revision before this Court.
9.I heard Mr.S.Baskaran, for the civil revision petitioner and
Mr.R.Vivek, for the respondents.
10.The narration of the aforesaid facts shows that the plaintiff who is a
stranger purchaser of the property has brought forth a suit seeking for
partition and separate possession in order to obtain his 1/4th share. The plaint
concedes that the 1st defendant is entitled to 1/4th share and defendants 2 to 4,
in common, are entitled to 1/2 share. Mr.S.Baskaran is absolutely right that
summons had been served on the parties and therefore, they ought not to have
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C.R.P.(PD).Nos.2337 & 2338 of 2015
taken a plea that they are not aware of the exparte preliminary decree. In
addition, I would also agree with Mr.S.Baskaran that having engaged a
lawyer, the defendants 1 to 3 cannot plead that they are not aware of the even
the final decree application in I.A.No.417 of 2009 being allowed by the Court
on 18.08.2010.
11.However, there are two crucial facts which I have to take into
consideration for disposing this revision.
12.The first fact being the nature of the preliminary decree passed by
the learned District Munsif cum Judicial Magistrate at Paramathi. A perusal of
the judgment shows that it is a laconic and non-speaking judgment. There is
no discussion as required in terms of Order XX of the Code of Civil
Procedure, 1908. By the said provision, a Court will have to pass a reasoned
judgment even if the defendants are exparte at the time of granting the decree.
A mere sentence that proof affidavit has been filed, exhibits have been marked
and consequently, the suit is decreed does not pass muster. This issue has
been settled by my brother Hon'ble Mr.JUSTICE N.ANAND VENKATESH in
R.Stella Vs. V.Antony Francis reported in (2019) 5 L.W 161. He held that a
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C.R.P.(PD).Nos.2337 & 2338 of 2015
judgment that has been passed in the manner as done in the present case is
unsustainable in law and is an illegal one.
13.The second crucial fact that I have to take note of is that the 4 th
defendant has been conclusively proved to be a mentally challenged person. In
case a mentally challenged person is arrayed as a party to the suit, it is the
duty of the plaintiff to appoint a guardian for the said person.
14.Mr.S.Baskaran pleads that the plaintiff was not aware that the 4th
defendant was mentally challenged. He adds a vakalat had been filed by the
lawyer, Mr.D.Srinivasan, for the 4th defendant. The fact that the vakalat had
been filed and the counsel does not disclose the said defendant, who is
mentally challenged person, as a same one. The law always throw a protective
cloak around minors, infants and mentally challenged persons, so that they do
not suffer a decree for no fault of theirs. It is only in furtherance of such
protective cloak that an advocate or a party, who has no adverse interest as
against persons falling under the aforesaid three categories, is appointed as a
guardian to contest the suit.
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C.R.P.(PD).Nos.2337 & 2338 of 2015
15.This issue too is settled by a judgment of the Supreme Court in the
case of K.P.Natarajan & another Vs. Muthalammal & others [2021 (15)
SCC 817]. The appeal arose before the Supreme Court from an order passed
by this Court. The plaintiff in the said suit sought for specific performance of
an agreement of sale, but did not appoint a guardian for the minor. The
plaintiff succeeded in obtaining a exparte decree. The defendants filed an
application to set aside the exparte decree with condonation of delay. The
application was dismissed. Aggrieved by the same, they approached this
Court by way of Civil Revision Petition. At the time of allowing the Civil
Revision Petition, this Court took note of the fact that if a minor is not
represented by a guardian, the very decree that is passed against a minor is a
nullity. Not only was the delay condoned, but the exparte decree was also set
aside. The view taken by the Hon'ble Mr.JUSTICE R.SUBRAMANIAN was
confirmed by the Supreme Court in the judgment cited supra. Only difference
between the case cited supra and the present case is that the former was a
case of minor and in the present case, it is a case of mentally challenged
person.
16.At this stage I also had to refer to Order IX Rule 13 proviso of the
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C.R.P.(PD).Nos.2337 & 2338 of 2015
Code of Civil Procedure, 1908. In terms of the proviso where a decree would
of a such nature that it cannot be set aside against one defendant alone, it has
to be set aside against all. Being a suit for partition, a decree cannot be set
aside only against the mentally challenged person. It has to be set aside
against all the defendants when such a serious lacuna comes to the notice of
the Court.
17.A supplementary point, though not pleaded by Mr.R.Vivek, which
arises for consideration in this case. At the time of passing of the preliminary
decree, the learned counsel who appeared for the defendants reported that
“NO INSTRUCTIONS”. When “no instructions” are reported, it is the duty of
the Court to ensure that the learned counsel who appears on behalf of the
concerned party puts the party on notice that he is revoking the vakalat. That
procedure not having been followed, I cannot sustain the pleas of
Mr.S.Baskaran.
18.The learned Trial Judge was duty bound to allow the guardian
petition since the defendants 2 to 4 pointed out the mental incapacity of the 4 th
defendant. In the light of the above discussion, I am not inclined to interfere
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C.R.P.(PD).Nos.2337 & 2338 of 2015
with the order passed by the learned District Munsif cum Judicial Magistrate,
Paramathi in I.A.No.415 of 2011 and I.A.No.289 of 2014 dated 17.04.2014.
19.The appointment of the 2nd defendant as guardian for the 4th
defendant in I.A.No.289 of 2014 will enure in favour of the said defendant
even in the suit. All that the plaintiff will have to do is to file a memo in order
to correct the cause title. There is no necessary to file a separate amendment
application.
20.The relationship between the vendor of the plaintiff and the 1 st
defendant not being in dispute, the defendants shall file a written statement
within a period immediately as undertaken by Mr.R.Vivek.
21.The learned District Munsif cum Judicial Magistrate, Paramathi is
requested to number the application under Order IX Rule 13 and allow the
same. Thereafter, he shall grant 15 days time to the defendants to file their
written statement. Once the written statement is filed, being a suit of the year
2004, the learned District Munsif cum Judicial Magistrate is requested to
expedite the proceedings on all stages and dispose of the suit within a period
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C.R.P.(PD).Nos.2337 & 2338 of 2015
of 9 months from the date of setting aside the exparte decree.
22.From a reading of the plaint, it is clear that the plaintiff Palaniappan
had jointly purchased the property along with his wife Lakshmi and she has
not been made as a party to the suit. When the purchase is clear from the sale
deed which has been filed as Document No.2, the wife of the plaintiff is a
proper and necessary party. Hence, the plaintiff is permitted to amend the
plaint by including his wife Lakshmi as the 2nd plaintiff to the suit.
23.With the above observations, this Civil Revision Petition stands
dismissed. The learned District Munsif cum Judicial Magistrate, Paramathi is
requested to act on a web copy of this order and not wait for the certified
copy. Consequently, the connected Miscellaneous Petitions are closed. No
costs.
06.11.2024
krk
Index : Yes / No
Internet : Yes / No
Neutral Citation : Yes / No
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C.R.P.(PD).Nos.2337 & 2338 of 2015
V.LAKSHMINARAYANAN, J.
krk
To
The District Munsif cum Judicial Magistrate Court,
Paramathi.
C.R.P.(PD).Nos.2337 & 2338 of 2015
06.11.2024
https://www.mhc.tn.gov.in/judis
