IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 13.09.2017
C O R A M
THE HONOURABLE MR.JUSTICE M. GOVINDARAJ
C.R.P.(PD) NOS.2082 AND 2083 OF 2017 AND CMP NOS.9974 AND 9975 OF 2017 1.D.Selvi 2.R.Soundarapandian 3.R.Sankar 4.P.Devada 5.R.Arulmozhi ... Petitioner nos.1 to 5 in both CRPs'
Vs.
1. M/s.Shreyas Investments Rep. by its Partner N.Balasubramanian S/o.Late M.Natarajan Having office at No.240, Royapettah High Road, Chennai - 600014.
2. M/s.Coramandal Beach Properties Private Limited Rep. by its Director Monisha Ranjan W/o. Pramod Ranjan Having its Registered Office at Flat No.1-B, Ranga Prasad Apartments, No.9, Binny Road, Poes Garden, Chennai - 600 086.
3. G.Madusudana Reddy
4. G.Thirupal Reddy ... Respondent nos.1 to 5 in both CRPs'
PRAYER: Civil Revision Petitions filed under Article 227 of the Constitution of India against the fair and decreetal order dated 13.02.2017 made in I.A.Nos.46 of 2017 and 47 of 2017 respectively, in I.A.No.1443 of 2013 in O.S.No.294 of 2013 on the file of the District Munsif Court at Madurantakam.
For Petitioners : Mr.B.Dayaalan For Respondents : Mr.S.Prem Auxilian Raj COMMON ORDER These Civil Revision Petitions are directed against the order dated 13.02.2017 passed in I.A.Nos.46 of 2017 and 47 of 2017 respectively, in I.A.No.1443 of 2013 in O.S.No.294 of 2013, on the file of District Munsif Court, Madurantakam.
2. The petitioners are the plaintiffs. The respondents are the defendants 1 to 4 in the suit. The petitioners have filed the above suit for declaration of title and permanent injunction. In the above suit, the petitioners are also filed an application under Order 39 Rule (1) and (2) of the Civil Procedure Code restraining the respondents / defendants 1 to 4 from encumbering or alienating the suit schedule properties to the third parties. Even though the respondents had entered appearance in the suit, they were set exparte in the application on 25.04.2016, for not filing http://www.judis.nic.icn ounter. The matter was posted for enquiry on 21.11.2016. Since the respondents / defendants were already set exparte on 25.04.2016, the petition in I.A.No.1443 of 2014 was allowed on 21.11.2016. Aggrieved over the same, the first respondent / fourth defendant has filed I.A.Nos.46 and 47 of 2017 respectively, to set aside the exparte decree.
3. The petitioners / plaintiffs have filed counter affidavit stating that since interim injunction has already been granted under Order 39 Rule (1) and (2) of the Civil Procedure Code, which is an appealable order, the respondents can only file an appeal. The Trial Court, after having found that the respondents were set exparte on 25.04.2016 and an exparte decree was passed on 21.11.2016, the application under Order 9 Rule 13 is maintainable. The Trial Court has also found that for the fault of the Advocate, the litigant shall not suffer. On the basis of the same, the exparte decree was set aside and the respondents were directed to argue the matter on merits, on 23.02.2017. Aggrieved over the said order, the petitioners have filed the present Civil Revision Petitions.
4. According to the petitioners, when an order is passed under Order 39 Rules 1 and 2 of the Civil Procedure Code, a person aggrieved the over the same, shall have to file an appeal under Order 43 Rule 1 of the Civil Procedure Code.
5. It is well settled principle that when an order is passed after hearing both the parties, on merits, then an appeal will lie under Order 43 Rule 1 of the Civil Procedure Code. In the instant case, it is an admitted fact by both the parties that the respondents were set exparte on 25.04.2016 and an exparte decree was passed on 21.11.2016. In that event, the said order cannot be construed to be an order passed under Order 39 Rule (1) and (2) of the Civil Procedure Code and it is not an appealable order, as mentioned by the petitioner, under Order 43 Rule 1 of the Civil Procedure Code. The Trial Court has rightly set aside the exparte order and decided the matter on merits, rather than rejecting it on technicalities. I do not find any discrepancy in the order passed by the Trial Court.
6. Therefore, both the Civil Revision Petitions merit no consideration and accordingly, stand dismissed. No costs. Consequently, connected civil miscellaneous petitions are closed.
13.09.2017
Index : Yes/No Internet : Yes/No TK To The District Munsif Court Madurantakam.
M.GOVINDARAJ, J.
TK C.R.P.(PD) NOS.2082 AND 2083 OF 2017 13.09.2017