[Cites 4, Cited by 0]
Madras High Court
Mr. Rajarajan vs Mr. K.P. Selvam on 6 January, 2026
2026:MHC:71
CRP NO.603 OF 2023
IN THE HIGH COURT OF JUDICATURE AT MADRAS
ORDER RESERVED ON : 09 / 12 / 2025
ORDER PRONOUNCED ON : 06 / 01 / 2026
CORAM :
THE HONOURABLE MR. JUSTICE R. SAKTHIVEL
C.R.P.NO.603 OF 2023
Mr. Rajarajan ...Petitioner/Petitioner/Plaintiff
Vs.
1.Mr. K.P. Selvam
2.Mr. Chandra
3.The Branch Manager,
Salem Central Co-operative Bank Limited,
Thammampatti Post,
Gengavalli Taluk,
Salem District.
4.Mr. Subbarayan
5.Mr. Arumugam
6.Mr. Perumal
7. Mr. K.A.Kaliyan
8. Mr. Selvarasu …Respondents/Respondents/Defendants
Prayer: Civil Revision Petition filed under Article 227 of the Constitution
of India, 1950, praying to set aside the Fair and Decretal Order dated
November 30, 2022 passed in I.A.No.216 of 2016 in O.S.No.91 of 2011
on the file of the Subordinate Court, Attur.
For Petitioners : Ms. Anvitha.R
for Ms.V.Srimathi
Page No.1 of 12
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CRP NO.603 OF 2023
For Respondents : Mr.K.Arunbabu for Respondent No.4
Mr.A.Sriram for Respondent No.7
Not ready in notice for Respondent No.2
Respondent Nos.1, 3, 5 and 6 served -
No appearance
ORDER
Feeling aggrieved by the Fair and Decreetal Order dated November
30, 2022 passed in I.A.No.216 of 2016 in O.S.No.91 of 2011 on the file of
the ‘Subordinate Court, Attur,’ (hereinafter referred to as the ‘Trial
Court’), the Petitioner therein has filed this Civil Revision Petition under
Article 227 of the Constitution of India.
2.For the sake of convenience, hereinafter, the parties will be
referred to as per their array in the Original Suit.
3.The Plaintiff filed the Original Suit against the Defendants seeking
the relief of declaration of certain documents as null and void, permanent
injunction and also seeking an alternative relief of Partition and separate
possession.
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CRP NO.603 OF 2023
4.The Suit was filed in the year 2011. When the Suit was posted on
July 27, 2016 for the appearance of the Plaintiff, the Plaintiff failed to
appear before the Trial Court and conduct the case and hence, the suit was
dismissed for default on July 27, 2016. Thereafter, the Plaintiff filed a
petition under Order IX Rule 9 of the ‘Code of Civil Procedure, 1908’
(‘CPC’ for short) to set aside the dismissal order and to restore the Suit on
file, in I.A.No.216 of 2016. After hearing both sides, the Trial Court
passed a conditional order dated November 30, 2022 stating that the
Interlocutory Application is allowed subject to payment of costs of
Rs.1,000/- payable by the Plaintiff to the 6th Defendant before December 9,
2022, failing which, the petition shall be dismissed. The Plaintiff did not
comply with the conditional order passed by the Trial Court. Hence, the
said Interlocutory Application stood dismissed.
5.Feeling aggrieved by the Fair and Decreetal Order dated
November 30, 2022, the Plaintiff has filed this Civil Revision Petition.
6.Ms.R.Anvitha, representing Ms.V.Srimathi, learned counsel on
record for the Revision Petitioner submits that the Advocate of the
Petitioner / Plaintiff before the Trial Court failed to take note of the Order
passed by the Trial Court and convey the same to the Plaintiff. Hence, the
Plaintiff could not comply with the conditional order. The Plaintiff has no
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CRP NO.603 OF 2023
deliberate or willful intention to cause any delay in the proceedings or
disobey the order of the Court. The Plaintiff is ready to deposit the said
amount as may be directed by this Court. Accordingly, she prayed to set
aside the order of the Trial Court.
7.Per contra, Mr.K.Arunbabu, learned counsel appearing for the 4th
Respondent and Mr.A.Sriram, learned counsel appearing for the 7 th
Respondent submit that the order under challenge is an appealable Order
under Order XLIII Rule 1(c) of CPC. Hence, the present Civil Revision
Petition is not maintainable. They submit that the suit was filed in the year
2011 and that, with a view to harass the Defendants 3 to 8, the Plaintiff
wantonly allowed the suit to be dismissed for default and thereafter filed a
petition for restoration, only with an intention to delay the proceedings and
to secure unlawful enrichment. The learned Counsels further submit that
the Trial Court dismissed the petition on November 30, 2022, but the
Plaintiff filed Copy Application only on January 05, 2023 and no reason
was assigned for the same. The Certified Copy of the Order made in the
Interlocutory Application was delivered on January 30, 2023, but the
revision was filed on February 28, 2023. This itself shows the plaintiff's
intention to prolong the proceedings and cause hardship to the Defendants.
The conduct of the Plaintiff is not bona fide. Therefore, the learned
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CRP NO.603 OF 2023
Counsels appearing for the Respondents 4 and 7 pray that this Civil
Revision Petition be dismissed.
8.This Court has considered the submissions made by both sides and
perused the records.
9.The Suit was dismissed for default on July 27, 2016. The
restoration petition was filed by the Plaintiff on August 11, 2016 and the
same was returned for curing some defects. After curing the defects, the
plaintiff re-presented the same on December 17, 2017 and the same was
numbered on April 27, 2018. Sixth Respondent filed counter on January 8,
2020. Thereafter, due to Covid - 19 Pandemic, the matter saw various
adjournments. On November 14, 2022, both sides' arguments were heard
and the matter was posted on November 30, 2022 for orders. The operative
portion of the fair order dated November 30, 2022 passed by the Trial
Court in the Interlocutory Application reads thus:
'Kotpy; kDjhuh; 6k; vjpu;kDjhuUf;F
+.1/000/- bryt[j; bjhifahf neuoahf tUk;
09.12.2022f;Fs; brYj;j ntz;Lbkd;Wk;/
mt;thW brYj;jpdhy; kD mDkjpf;fg;gLk;
vd;Wk; jtWk; gl;rj;jpy; ,k;kD js;Sgo
bra;ag;gLk; vd;w epge;jida[ld;
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CRP NO.603 OF 2023
jPu;khdpf;fg;gLfpwJ.'
9.1. Operative portion of the decreetal order passed by the Trial
Court in the Interlocutory Application reads thus:
'1) kDjhuh; 6k; vjpu;kDjhuUf;F
+.1/000/-I bryt[j; bjhifahf neuoahf
tUk; 09.12.2022f;Fs; brYj;j
ntz;Lbkd;Wk; mt;thW brYj;jpdhy; kD
mDkjpf;fg;gLk; vd;Wk;/ jtWk;
gl;rj;jpy; ,k;kD js;Sgo bra;ag;gLk;
vd;w epge;jida[ld; jPu;khdpf;fg;gLtjhf
30.11.2022 md;W cj;jutplg;gl;Ls;sJ.
2) 09.12.2022 md;W kDjhuh; bryt[j;
bjhifia brYj;jtpy;iy vd;gjhYk;/
kDjhuh; miHj;J M$uhftpy;iy
vd;gjhYk; ,e;j kD js;Sgo
bra;ag;gLfpwJ.
30.11.2022k; ehshfpa ,d;W vd;
ifbaGj;Jk;/ ,e;ePjpkd;w Kj;jpiua[k;
nghl;Lf; bfhLf;fg;gl;lJ.'
10. As it could be seen from the above extracts, the order of
payment of cost and the order of dismissal on failure thereof, form part of
the same order. If the plaintiff fails to comply with the condition of
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CRP NO.603 OF 2023
payment of cost, the Interlocutory Application would stand dismissed
automatically without any further direction or interference from the Court.
As per Order XLIII Rule 1 (c) of the CPC, if an Application under Order
IX Rule 9 of CPC is rejected, appeal would lie. Thus appeal remedy is
provided under CPC for dismissal of an Application under Order IX Rule
9 of CPC and hence, as per Section 115 (2) of CPC, no revision would lie.
No doubt that revision is normally permissible over order of payment of
cost. But in this case, the Order IX Rule 9 Application would
automatically stand dismissed on the plaintiff's failure to comply with the
condition of payment of cost within the prescribed time limit. The order
for payment of cost and the order of dismissal constitute a single order and
they cannot be severed, making the order under challenge an appealable
order under Order XLIII Rule 1 (c) of CPC and not a revisionable one
under Section 115 of CPC. The said view is fortified by two decisions of
this Court, the earliest being Chintakayala Ramayya -vs- Mithinti
Lakshmayya reported in AIR 1944 Mad 383 = (57) L.W. 292. For easy
appreciation of the facts of Chintakayala Ramayya's case, the order under
challenge therein dated July 5, 1943 is reproduced hereunder:
Operative Portion of the Judgment therein:
"On the whole, I should think that the suits should be
restored and sufficient costs should be awarded to the respondents
as a panacea as was done by His Lordship in the Case quoted
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above, Venkateswara Rao v. Subramaniam (1939) 2 M.L.J. 611 =50
L.W.430. I therefore order the petitioner to pay Rs. 100 for costs of
the respondents irrespective of the result in the suits within 15 days
from this date. They shall also deposit costs of the suits as a
condition precedent before the trial of the suits which are hereby
restored to file and posted peremptorily to the 26 th July 1943. In
default, the petitions will stand dismissed with costs."
Decreetal Order therein:
"It is ordered that the petition be and the same is hereby
allowed. It is further ordered that the petitioners do deposit into
Court a sum of Rs. 100 towards their costs in this petition and also
I.A. Nos. 569, 570 and 625 to 627 of 1943 irrespective of the result
of the suits and do also deposit the costs decreed on or before 26th
July 1943. It is further ordered that in default of payment the
petitions do stand dismissed with costs."
11. Bare reading of the above extracts would make it clear that the
order under challenge in Chintakayala Ramayya's Case is similar and
comparable to the order under challenge in the case on hand. In
Chintakayala Ramayya's Case, an appeal was preferred over the said
order and a preliminary objection was raised that only revision would lie.
This Court overruled the same and held that only appeal would lie as the
order of dismissal and the order of payment of cost form a single order.
12. The another decision is Devaki alias Devi -vs- S.Vani reported
in 2002 – 1 – L.W. – 345, wherein it was held as hereunder:
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CRP NO.603 OF 2023
“It is thus explicit from the decisions referred to above that
under Order 43 Rule 1(d) the conditional order passed by the court
in the application filed under Order 9 Rule 13, C.P.C. is an
appealable order. It is also seen from the above decisions that if the
Court imposes certain conditions to be complied with before the
stipulated date and the consequence of such non-compliance is
stated in the very order itself, then it would be a final order. In this
case, it is specifically stated in the order that the application would
stand dismissed if the amount is not deposited within the stipulated
date. Therefore, I have no hesitation in holding that the order
passed by the trial court in this case is an order which falls under
Order 43 Rule 1(d) of C.P.C. and that the remedy of the aggrieved
party is only to file an appeal and not a revision.”
13. Though the aforecited cases arise out of dismissal of Order IX
Rule 13 Applications and the case on hand deals with a dismissal order of
an Order IX Rule 9 Application, the legal principle laid down in the
aforecited case laws can very well be applied to the present case. From the
aforecited case laws, the legal position is clear that when the order of
dismissal is subject to payment of cost and when the dismissal is automatic
in case of failure thereof without any need for further direction or
interference from the Court, they form a single order and consequently,
only appeal would lie over the same and no revision would lie. As stated
supra, in the case on hand, the order of the Trial Court is such that the
Interlocutory Application would stand dismissed automatically if the
plaintiff fails to comply with the condition of payment of cost. In other
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CRP NO.603 OF 2023
words, in case of failure in payment of cost by the plaintiff, the
Interlocutory Application would stand dismissed without any reference to
or interference from the Court. The fair and decretal order dated November
30, 2022 under challenge is the single and only order, and no further order
was necessary, nor passed. The docket order dated December 9, 2022 is a
mere formal recording of the factum of dismissal vide the earlier order
which is the fair and decretal order dated November 30, 2022. Hence, no
revision would lie over the fair and decretal order dated November 30,
2022 passed by the Trial Court. The remedy available to the plaintiff is
appeal under Order XLIII Rule 1 (c) of CPC and not revision under
Section 115 of CPC. Therefore, this Civil Revision Petition is liable to be
dismissed as not maintainable.
14.In the result, the Civil Revision Petition is dismissed as not
maintainable. Considering the facts and circumstances of the case, there
shall be no order as to costs.
06 / 01 / 2026
Index :Yes
Speaking order :Yes
Neutral citation :Yes
mps/tk
To
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CRP NO.603 OF 2023
1.The Subordinate Court,
Attur.
2.The Section Officer,
VR Section,
Madras High Court.
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CRP NO.603 OF 2023
R. SAKTHIVEL, J.
mps/tk
PRE-DELIVERY ORDER MADE IN
C.R.P.NO.603 OF 2023
06 / 01 / 2026
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