S. Anusuya v. Arulmighu Renuka ParameshwariDevasthanam

IN THE HIGH COURT OF JUDICATURE AT MADRASDate:- 23 .11.2007CoramThe Honourable Mr. Justice M. VENUGOPALC.R.P. NPD. No.1677 of 2003andC.M.P. No.17647 of 2003S. Anusuya... Petitioner..vs.. Arulmighu Renuka ParameshwariDevasthanam,rep. by its Hereditary TrusteesN.L. Vasanthammal... RespondentPetition to set aside the order dated 29.11.2002 passed inM.P. SR.No.5147 of 2002 in Eject. suit No.83 of 1990 on the file of the IVSmall Causes Court, Chennai. For Petitioner : Mr. R. SubramanianFor Respondent : N.A.O R D E RThe civil revision petitioner is the legal heir of the deceasedfather Narasimhalu, who was the defendant in Ejectment Suit No.83 of 1990on the file of the IV Small Causes Court, Chennai. 2. The respondent/ plaintiff has filed a suit in Ejectment SuitNo.83 of 1990 for recovery of possession from Narasimhalu. The saidNarasimhalu died on 9.12.1989 and hence, M.P. No.1288 of 1990 was filedto bring on record his daughter/the civil revision petitioner as his legalheir. The said miscellaneous petition was allowed on 18.11.99. Later,M.P. No.2386 of 1999 was filed by the respondent/plaintiff to carry outamendment and was allowed on 23.12.99. On 16.9.2002, an ex parte decreewas passed against the petitioner in Ejectment Suit No.83 of 1990.Earlier the petitioner who was impleaded as 2nd defendant by paperpublication was set ex parte on 28.6.2000. It is contended that therevision petitioner was not directly served with summons through Courtand she never resided at No.45, N.S.C. Bose Road, Madras – 600 079. Therevision petitioner, on coming to know about the passing of ex parte https://hcservices.ecourts.gov.in/hcservices/ decree on 19.9.2002, filed a petition in M.P.SR.No.5147 of 2002 to setaside the said ex parte decree, stating that the suit summons were notserved on her and on coming to know about the ex parte decree,immediately, she has filed the petition. However, the said petition wasrejected by the learned Judge, Fourth Court of Small Causes, Chennai on29.11.2002. Aggrieved over the same, the present civil revision petitionhas been brought forth by the petitioner in revision.3. It is represented by the learned counsel for the petitionerthat when a petition was filed under Order 9 Rule 13 of the CivilProcedure Code before the Lower Court to set aside the ex parte decreepassed against the defendant, learned Judge ought to have numbered thesaid petition and ordered notice to the other side and thereafter, disposeof the same. Without doing so, the learned Judge has dismissed the saidpetition at the S.R. stage itself.4. According to the learned counsel for the petitioner, thelearned Judge, though passed a detailed order, the same was passed withoutordering notice to other side. Hence, the question that arises forconsideration before this Court is whether the petition filed under Order9 Rule 13 of the Civil Procedure Code can be dismissed at the S.R. Stageitself without numbering the same?5. Learned counsel for the petitioner pressed into serviceSection 122 of the Civil Procedure Code, which runs as follows:-"Power of certain High Courts to make rules:-High Courts not being the Court of a JudicialCommissioner may, from time to time after previouspublication, make rules regulating their own procedureand the procedure of the Civil Courts subject to theirsuperintendence, and may by such rules annul, alter oradd to all or any of the rules in the First Schedule."6. He also drew the attention of this Court to Rule 32 of theCivil Rules of Practice, which runs as follows:- "Proof of facts by affidavit:-Any fact required to be proved upon aninterlocutory proceeding shall, unless otherwiseprovided by these rules, ordered by the court, beproved by affidavit, but the judge may, in any case,direct evidence to be given orally; and thereupon theevidence shall be recorded and exhibits marked, in thesame manner as in a suit and lists of the witnessesand exhibit shall be prepared and annexed to thejudgment." https://hcservices.ecourts.gov.in/hcservices/

7. It is not in dispute that the revision petitioner is thelegal heir of the deceased Narasimhalu. According to the learned counselfor the petitioner, the order passed by the learned Judge in S.R. stageitself is without jurisdiction. It is represented that the avermentsmentioned in the petition filed under Order 9 Rule 13 of the CivilProcedure Code to set aside the ex parte decree dated 16.9.2002 passedagainst the petitioner are required to be proved and since no opportunitywas given to the revision petitioner to prove her case, the dismissal ofthe said petition at the S.R. stage is per se illegal. Reliance wasplaced on the decision reported in the case of KARUPPASWAMY & ORS. v.C.RAMAMURTHY (A.I.R. 1993 SC 2324), wherein it is held as follows:-"Limitation Act (1963), S.21(1), Proviso –Applicability – Suit filed against dead person –Plaintiff becoming aware of defendant's death fromremark on returned summons – Seeking impleadment of LRsof defendant, promptly thereafter – entitled to invokeproviso gto S.21(1)."8. A perusal of the order passed by the learned Judge at theS.R. stage itself clearly spells out that the learned Judge has perusedthe records in Ejectment Suit No.83 of 1990 and thereafter passed adetailed order on 29.11.2002 and rejected the petition. But, theprinciples of natural justice require that an opportunity should be givento the petitioner to prove her case, based on the averments made in theaffidavit filed in support of the petition to set aside the ex partedecree. Without taking the said petition on file and without numberingthe same, the order passed by the learned Judge at threshold, which, inthe considered opinion of this Court, is not correct. 9. No doubt, the learned Judge, IV Court of small Causes,Chennai, while passing orders on 29.11.2002 by rejecting the petition toset aside the ex parte decree, traversed on the factual details of thematter, but the same was done unilaterally. While dealing with thepetition filed under Order 9 rule 13 of the Civil Procedure Code, theproper procedure to be adopted by the learned trial Judge is to assign anumber, take it on file, order notice to the other side and after hearingthe matter on merits, arrive at a conclusion and dispose of the samewithin the parameters of law.10. As far as the present case is concerned, such a course wasnot adopted by the learned trial Judge. While dealing with the unnumberedpetition at S.R. stage and passing orders, the learned Judge, IV Court ofSmall Causes has failed to exercise his jurisdiction so vested in lawwithout giving an opportunity to prove the averments made in theaffidavit, by letting in oral or documentary evidence, if any on bothsides. https://hcservices.ecourts.gov.in/hcservices/

11. Hence, this Court, sitting in revision, perforce tointerfere with the order passed by the learned trial Judge and allow thecivil revision petition, by setting aside the order dated 29.11.2002passed in M.P. SR.No.5147 of 2002 in Eject. suit No.83 of 1990 on thefile of the IV Small Causes Court, Chennai, to promote substantial causeof justice and to prevent aberration of justice. Consequently, theconnected C.M.P. is closed.12. In fine, the learned trial Judge, IV Small Causes Court,Chennai is directed by this Court to take up the petition inM.P.SR.No.5147 of 2002 in Ejectment Suit No.83 of 1990 on file and disposeof the same on merits according to law after giving opportunity to otherside to file counter and permit the parties to adduce oral and documentaryevidence, if any, to effectually and completely adjudicate the matter inissue as expeditiously as possible. No costs.Sd/Asst.Registrar/true copy/Sub Asst.Registrarssa.To1. The Judge,IV Small Causes Court,Chennai.2. The Record Keeper,V.R.Section, High Court, Madras.1 cc To Mr.R.Subramanian, Advocate, SR.69727.C.R.P. NPD. No.1677 of 2003and connected C.M.P.SP(CO)RVL 29.11.2007