Madras High Court
Gnanamurugan vs K.Vijayarangan on 14 July, 2025
CRP.No.2156 of 2023
IN THE HIGH COURT OF JUDICATURE AT MADRAS
Order reserved on : 04.07.2025 Order pronounced on : 14.07.2025
CORAM
THE HON'BLE MR. JUSTICE P.B.BALAJI
CRP.No.2156 of 2023
& CMP.No.13116 of 2023
Muniyammal (Died)
1.Gnanamurugan
2.Elumalai ..Petitioners
Vs.
K.Vijayarangan ..Respondent
Prayer: Civil Revision Petition filed under Article 227 of Constitution of
India, to set aside the order and decree dated 10.03.2023 made in I.A.No.1 of
2022 in A.S.No.05 of 2021 on the file of the learned Subordinate Judge,
Arakkonam.
For Petitioners : Mr.A.Gouthaman
For Respondent : Dr.C.Ravichandran
ORDER
This revision throws up a very interesting proposition of law as to
whether the defendant, who had been set ex-parte in a suit and his attempt to set
aside the ex-parte decree was unsuccessful, is entitled to put forth his defense in
a First Appeal challenging the ex-parte decree.
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2.I have heard Mr.A.Gowthaman, learned counsel for the
petitioners/defendants and Dr.C.Ravichandran, learned counsel for the
respondent/plaintiff.
3.The admitted facts are as follows:
The plaintiff filed a suit against the revision petitioners herein for
declaration and permanent injunction. The said suit came to be decreed ex-parte
on 30.01.2008. The defendants took out an application to set aside the ex-parte
decree and the same came to be allowed on 18.07.2011. However, the
respondent/plaintiff challenged the same before this Court in revision
proceedings in CRP.Nos.3870 of 2011 and 3880 of 2011 and the revisions came
to be allowed and consequently, the setting aside application came to be
dismissed. The said revisions were allowed by this Court on 25.04.2019 and the
ex-parte decree was restored. Thereafter, the revision petitioners chose to file a
First Appeal, challenging the ex-parte decree and pending the said First Appeal,
the petitioners filed I.A.No.1 of 2022 seeking permission to receive documents
in evidence in the First Appeal. The First Appellate Court, in and by order dated
10.03.2023, has dismissed the said application, as against which, the present
revision has been filed.
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4.The learned counsel for the revision petitioners would contend that
merely because the ex-parte decree has become final, it would not preclude the
defendants from challenging the ex-parte decree by way of a First Appeal,
which remedy is available under the statute, namely, Code of Civil Procedure
and the same cannot be taken away. He would also contend that the Order IX
Rule 13 of the CPC, the application to set aside the ex-parte decree was final
only with regard to the non appearance of the defendants and not assigning
sufficient reasons for setting aside the same. He would therefore contend that
there is no legal bar for the defendants to file a First Appeal and challenge the
decree that has been passed against the revision petitioners.
5.The learned counsel for the petitioners would further submit that the
application to receive additional documents was filed under Order XLI Rule 27
of CPC and the same ought to have been taken up along with the main appeal
and the Appellate Court erred in taking up the application independently and
disposing of the same, which according to the learned counsel for the revision
petitioners, is against well settled principles of law enunciated by the Hon'ble
Supreme Court as well as this Court.
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6.In support of his contention, the learned counsel for the revision
petitioners would place reliance on the following decisions:
1.N.Mohan Vs. R.Madhu ((2020) 20 SC 302).
2.Bhanu Kumar Jain Vs. Archana Kumar and Others
((2005) 1 SCC 787).
3.Union of India (UOI) Vs. Ibrahim Uddin and Others
((2012) 8 SCC 148).
4.Bhivchandra Shankar More Vs. Balu Gangaram
More and Others ((2019) 6 SCC 387).
5.The Koushik Mutually Aided Cooperative Housing
Society Vs. Ameena Begum & Another (SLP.(C).No.5489 of
2021 dated 01.12.2023).
6.Rajathi Ammal and Others Vs. Vankatasubbu Reddiar
(Died) and Others (CRP(NPD).No.2979 of 2016 dated
09.09.2021).
7.Per contra, Dr.C.Ravichandran, learned counsel for the
respondent/plaintiff would contend that the Trial Court has not committed any
grave error in deciding the interlocutory application separately, without
postponing the decision in the said application to receive additional documents
along with the First Appeal at the time of final disposal of the First Appeal. He
would state that the defendants having unsuccessfully attempted to set aside the
ex-parte decree, though may be entitled to file a statutory First Appeal, the
grounds of challenge available to the defendants would be very limited and by
no stretch of imagination, would permit the defendants to canvas or put forth
their defense. He would rely on the decision of the Hon'ble Supreme Court in
Bhanu Kumar Jain Vs. Archana Kumar and Another, reported in (2005) 1 SCC
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787, which has also been relied on by the learned counsel for the revision
petitioners, and also placed reliance on the decision of this Court in
A.Meiazhagan Vs. Mangayarkkarasi and Others, passed in A.S.No.640 of 2016
dated 25.04.2017, in support of his contention.
8.I have carefully considered the submissions advanced by the learned
counsel on either side.
9.The facts are not in dispute. The defendants, who are the revision
petitioners herein, suffered an ex-parte decree and their attempt to have the said
decree set aside was initially fruitful before the Trial Court. However, in
revisions, this Court had set aside the order of the Trial Court and thereby the
ex-parte decree came to be restored. It is thereafter that the First Appeal has
been preferred by the revision petitioners. Insofar as the maintainability of the
First Appeal, there is no quarrel. The law is now well settled on this point. The
Hon'ble Supreme Court in Bhanu Kumar Jain's case, has held that the dismissal
of an application under Order IX Rule 13 of CPC would not bar filing of an
appeal under Section 96 of the CPC. This view was also affirmed by a later
Three Judges Bench of the Hon'ble Supreme Court in N.Mohan's case. The
view in Bhivchandra Shankar More's case is also approved. The same view was
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also reiterated by the Hon'ble Supreme Court in Koushik Mutually Aided
Cooperative Housing Society's case.
10.However, the point for consideration in the present revision is as to
whether (i) the First Appellate Court was right in taking up the interlocutory
application under Order XLI Rule 27 CPC independently, without hearing the
application along with the First Appeal, while finally disposing of the First
Appeal; (ii) whether the defendants having lost their right to set aside the ex-
parte decree could be permitted to rely on fresh documentary evidence on their
side in the First Appeal.
11.Coming to the first question regarding consideration of an
interlocutory application under Section XLI Rule 27 of CPC in a First Appeal,
the Hon'ble Supreme Court in Union of India Vs. Ibrahim Uddin's case, has
held that as a general principle, the Appellate Court should not travel outside the
record of the Lower Court and cannot take any evidence in appeal, except for
the provisions of Rule 27 of Order XLI of the CPC, in and whereby the
Appellate Court has the power to record additional evidence in exceptional
circumstances. The Hon'ble Supreme Court also held that such permission can
be only subject to the condition laid down in the rule and the parties are entitled
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as a matter right to admission of additional evidence in the First Appeal.
12.As regards the stage of consideration of an application under Order
XLI Rule 27 of CPC, the Hon'ble Supreme Court held that it should be
considered at the time of hearing of the appeal on merits and the issue is
whether the Appellate Court is able to pronounce judgment on the materials
before it, without taking into consideration the additional evidence sought to be
adduced and that such occasion would arise only on examining the evidence as
it stands and the Court comes to the conclusion that some inherent lacuna or
defect becomes apparent to the Court.
13.The above ratio would certainly apply to a case where the parties had
gone through a regular trial and both the plaintiff and the defendants had let in
oral and documentary evidence and the aggrieved party who was on First
Appeal sought to introduce additional evidence. Under such circumstances, as
held by the Hon'ble Supreme Court, the consideration as to whether such
documentary evidence would be necessary or not, would have to be decided at
the time of hearing of the appeal on merits.
14.The facts of the present case are however peculiar. The defendant has
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lost his right to defend the suit, after being set ex-parte an ex-parte decree came
to be passed. The defendants' application to set aside the ex-parte decree has
also become final with the order passed in revisions before this Court.
15.In view of the above, the defendants have lost their right to file a
written statement and contest the suit. No doubt, the defendants are entitled to
avail the statutory remedy under Section 96 of CPC, by way of challenging the
ex-parte decree in a First Appeal. However, the moot point is whether in such a
First Appeal challenging an ex-parte decree, the defendants can be permitted to
lead any evidence. Firstly, the defendants have lost their right to file a written
statement itself and therefore, there cannot be any amount of evidence in the
absence of pleadings. This fundamental principle, if kept in mind, would
straight away lead to the answer to the second issue that arises for consideration
in this revision.
16.The law is more than well settled that no amount of evidence can be
adduced in the absence of pleadings. The only grounds on which the defendants
can challenge the ex-parte decree are only with regard to the entitlement of the
plaintiff to such a decree, based on the plaint and the documents which have
been marked at the time of recording ex-parte evidence. No other evidence or
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plea can be looked into. While so, in such circumstances, I do not find any error
committed by the First Appellate Court in independently taking up the
application under Order XLI Rule 27 of CPC. It was not necessary for the First
Appellate Court to follow the general settled principle with regard to the
consideration of an application for additional evidence along with the hearing of
the appeal on merits.
17.In fact, in Bhanu Kumar Jain's case, the Three Judge Bench of the
Hon'ble Supreme Court, has held that the defendant who has suffered an ex-
parte and also was not successful in getting the same set aside under Order IX
Rule 13 of CPC could only argue the First Appeal on the merits of the suit, in
order to contend that materials brought on record by the plaintiffs were not
sufficient for passing a decree in favour of the plaintiffs or that the suit itself
was otherwise not maintainable.
18.In A.Meiazhagan's case, this Court followed the ratio laid down by the
Hon'ble Supreme Court in Bhanu Kumar Jain's case and held that excepting the
challenge to the merits of the ex-parte decree, the defendants cannot canvas
anything beyond the same. It was also held by this Court that without resorting
to Order IX Rule 13 of CPC, by showing sufficient cause to set aside the ex-
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parte decree, the appellant cannot take recourse under Order XLI Rule 27 of
CPC to introduce evidence without any pleadings before the Trial Court. In the
case on hand, even the defendants resorting to Order IX Rule 13 of CPC to set
aside the ex-parte decree was admittedly unsuccessful. Therefore, in my
considered opinion, the defendants cannot attempt to achieve what they could
not otherwise achieve before the Trial Court, by invoking provisions of Order
XLI Rule 27 of CPC. The First Appellate Court has rightly dismissed the
application. In view of the above, I do not find any infirmity or illegality in the
order passed by the Trial Court.
19.In fine, the Civil Revision Petition is dismissed. There shall be no
orders to costs. Connected Civil Miscellaneous Petition is closed.
14.07.2025
Speaking/Non-speaking order
Index : Yes/No
ata
To
The Subordinate Judge, Arakkonam.
P.B.BALAJI.J,
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ata
Pre-delivery order made in
14.07.2025
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