Open iDraf
Raji v. Anbalagan (Died) and Madhan

Raji
v.
Anbalagan (Died) and Madhan

(High Court Of Judicature At Madras)

Civil Revision Petition No. 3029 Of 2009 And M.P. No. 1 Of 2009 | 05-07-2010


(Prayer: This Civil Revision Petition is filed against the fair and decretal order dated 04.08.2009 in I.A. No.193 of 2009 in I.A. No.490 of 2008 in O.S. No.142 of 2007 on the file of the learned Principal Subordinate Judge, Krishnagiri.)

1. Inveighing the order dated 04.08.2009 in I.A. No.193 of 2009 in I.A. No.490 of 2008 in O.S. No.142 of 2007 on the file of the learned Principal Subordinate Judge, Krishnagiri, this Civil Revision Petition is focused.

2. Heard both sides.

3. For convenience sake, the parties are referred to hereunder according to their litigative status and ranking in the Suit.

4. A summation and summarization of the relevant facts absolutely necessary and germane for the disposal of this Civil Revision Petition would run thus:

The Revision Petitioners/Plaintiffs filed the Suit for partition in O.S. No. 142 of 2007. During the pendency of the Suit, the Defendants/Respondents Anbalagan and one Madhan filed I.A. No.161 of 2008 and obtained injunction as against the Plaintiffs not to disturb their peaceful possession and enjoyment of the property concerned and the same was allowed in their favour. Subsequently, I.A. No.490 of 2008 was filed under Order 39, Rule 2-A of C.P.C. for punishing the Plaintiffs for having committed contempt of Court. During the pendency of the said I.A. No.490 of 2008, the Defendant No.1 Anbalagan died; but no steps were taken to implead the legal heirs of Anbalagan. However, the lower Court allowed the I.A. No.490 of 2008 and ordered attachment of the properties and also arrest of Plaintiffs for violating the injunction order. While so, the Plaintiffs filed I.A. No.193 of 2009 under Order 9, Rule 7 of C.P.C. to get set aside the ex parte order passed in I.A. No.490 of 2008. The said Application was dismissed.

5. Being aggrieved by and dissatisfied with the said order, this Revision has been filed on various grounds, the gist and kernel of them would run thus:

The lower Court failed to see that in the I.A. No.490 of 2009, consequent upon the death of Anbalagan, his legal heirs were not impleaded. Without taking steps to implead the legal heirs of Anbalagan in the suit, the lower Court was not justified in simply proceeding with the I.A. and passing orders on that I.A. Having no other go, I.A. No.193 of 2009 was filed with the same cause title, and that I.A. was dismissed, finding fault with the Plaintiffs as though they did not file counter in the I.A. No.490 of 2008, despite ample opportunities having been given.

6. The learned Counsel for the Plaintiffs reiterating the grounds of Revision would develop his argument that the procedures adopted by the lower Court were not correct and the Plaintiffs should be given opportunity to defend the I.A. No.490 of 2008 as otherwise the consequences will be serious as against the Plaintiffs. The learned Counsel for the Plaintiffs also would submit that the order of arrest and attachment, was passed as against the Plaintiffs without giving them due opportunity to defend themselves before the lower Court. Accordingly, he prays for allowing this Civil Revision Petition.

7. By way of contradicting and gain saying the contentions/arguments as put forth on the side of Plaintiffs, the learned Counsel for the Defendants would submit that the Plaintiffs cannot capitalize their own mistake without filing an Application to get the legal heirs of Anbalagan impleaded as Defendants in the Suit and also correspondingly impleading those legal heirs in other interlocutory proceedings. The lower Court granted ample opportunity; but that was not utilised by the Plaintiffs. The Plaintiffs fragrantly violated the injunction order and harvested mango crops in the property over which, injunction is operating as against the Plaintiffs and in favour of the Defendants.

8. The point for consideration is as to whether the order of the lower Court is sustainable and whether it suffers from illegalities and infirmities?

9. At the outset itself, I would like to point out that the lower Court was not justified in ordering I.A. No.490 of 2008 by referring Anbalagan as dies, without impleading the legal heirs of Anbalagan in the Suit. It is the duty of the Plaintiffs to implead the legal heirs of the Defendant Anbalagan. I would also like to make it clear that in a partition suit or any other Suit for that matter either the Plaintiffs or the legal heirs of the decease Defendant can take steps to get the legal heirs of the deceased Defendant impleaded. It is not that only the Plaintiffs should take steps. However, if the legal heirs of the deceased Defendant is not interested, then the matter would be different and the duty is cast upon the Plaintiff only to implead the legal heirs of the deceased. In this case, Anbalagan and Mathan did choose to get injunction as against the Plaintiffs, consequent upon the death of Anbalagan, his legal heirs could have taken steps to implead themselves in the place of Anbalagan and prosecute the I.A. No.490 of 2008. No doubt, despite opportunities given the Plaintiffs did not file counter in I.A. No.490 of 2008. The lower Court took into account only the fact that Counter was not filed by the Plaintiffs for a pretty long time and decided that they were not entitled to any indulgence from the Court.

10. In view of the irregularity as well as the illegality, which is writ large in the order of the lower Court, the same cannot be sustained. The lower Court should have first directed the party or parties concerned to implead the legal heirs of deceased Anbalagan and thereafter proceeded with the matter. Once the legal heirs of the deceased Anbalagan are impleaded in the suit, then it would get reflected in all the Interlocutory proceedings and the Court has to give due direction to the parties concerned to carry out the necessary amendments in the Interlocutory proceedings but instead of adhering to such a procedure, the Court simply went to the extent of ordering I.A. No.490 of 2008 even though one of the Petitioners’/Defendants’ there in died. While holding so, I do not even for a moment hold that the Plaintiffs were not guilty of laches as the Plaintiffs should have placed the relevant materials before the Court and took steps to implead the legal heirs of Anbalagan.

11. Be that as it may, I am also of the view that the I.A. No.490 of 2008 is under Order 39, Rule 2-A of C.P.C., which ultimately resulted in ordering arrest and attachment and in such a case, the Plaintiffs are entitled to get adequate opportunity.

12. There is one other glaring illegality in the order of the lower Court. The ex parte order passed in I.A. No.490 of 2008 is ex facie untenable in the eye of law. I would like to extract the order dated 30.04.2009 as under:

“As per order in I.A.123/09 case advanced hearing today. Counter not filed. Respondent called absent. Set ex parte. Petition allowed.”

The Application under Order 39, Rule 2-A of C.P.C should not have been disposed of in such a cryptic manner without adhering to the procedure. No doubt, if a Respondent in an Application under Order 39, Rule 2-A, remained absent, the Court may proceed ex parte and pass an order but not in such a cryptic manner as it has been done in this case by the lower Court. The prayer in the Application is for attaching the property of the Respondents/Plaintiffs and commit them to Civil prison. By just one sentence the lower Court ordered as “Petition allowed”, which means that the Court without application of mind simply accepted the petition of the Petitioners/Defendants concerned for gospel truth and ordered attachment of the Property as well as arrest. No where, such procedure is contemplated. Objectivity is totally absent in the lower Court’s order. Ex parte proceedings should be conducted in the way known to law and it should be based on evidence. The order also should exemplify and display that the learned Judge concerned applied his mind on the relevant facts and arrived at the conclusion. No reason has been given as to why arrest as well as attachment should be ordered simultaneously. To say the least, the lower Court ignoring all these aspects simply passed the order, as set out supra, warranting interference by this Court on that count also. Accordingly, I am of the view that the order of the lower Court in I.A. No.490 of 2008 should be set aside and the matter is remitted back to the lower Court for dealing with it as per law.

12. In the result, this Revision is allowed and the order passed in I.A. No.193 of 2009 is set aside and the I.A. No.490 of 2008 is ordered to be restored on file. It is informed to this Court that already counter also has been filed. At the first instance, the lower Court shall see that in the Suit legal heirs of Anbalagan are impleaded as per law. The learned Counsel for the Plaintiffs would submit that an Applications for impleading the legal heirs of deceased Anbalagan are pending in the Suit. As such, that shall be taken at the first instance and disposed of as expeditiously as possible. In the event of allowing all those Applications, the amendment in the Plaint cause title would get reflected mutatis mutandis in all other Interlocutory Applications including I.A. No.490 of 2008 and thereafter, I.A. No.490 of 2008 shall be taken up and disposed of within a period of one month thereafter as per law.

13. The learned Counsel for the Respondent/Defendant would submit that already the order of injunction is in operation and that the order passed by this Court now should not be construed by the Revision Petitioners/Plaintiffs as though such an order is not in vogue. It goes without saying that the present Revision is not against the order of injunction, which is in operation.

14. With the above direction, this Civil Revision Petition is disposed of. No costs. Consequently, the connected Miscellaneous Petition is closed.

Advocates List

For the Petitioner Lakshmi Narayanan, Advocate. For the Respondent V. Perumal, Advocate.

For Petitioner
  • Shekhar Naphade
  • Mahesh Agrawal
  • Tarun Dua
For Respondent
  • S. Vani
  • B. Sunita Rao
  • Sushil Kumar Pathak

Bench List

HON'BLE MR. JUSTICE G. RAJASURIYA

Eq Citation

LQ 2010 HC 15386