The High Court dismissed an Original Side Appeal against a Single Judge's order setting aside an ex parte decree that was vitiated by the death of respondents and procedural irregularities, holding no reason to interfere. A connected CMP was closed.
The Original Side Appeal was dismissed; the connected CMP No.5605 of 2020 was closed; no costs.
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IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 06.03.2020
CORAM :
THE HON'BLE DR.JUSTICE VINEET KOTHARI AND
THE HON'BLE MR.JUSTICE R. SURESH KUMAR
O.S.A.No.119 of 2020 & CMP.5605 of 2020
A. Azizul Karim .. Appellant -vs1. P.S.Kirubakaran 2. P.S.Anandan .. Respondents
Original Side Appeal file dunder Order XXXVI, Rule 1 of O.S.Rules and Clause 15 of the Letter Patent against the order and decree dated 10.02.2020 in Application No.8992 of 2019 in C.S.No.212 of 2017 passed by the learned Single Judge of this Court .
For Appellant : Mr.N. Suresh ORDER [Order of the Court was made by DR.VINEET KOTHARI,J.] Heard the learned counsel appearing for the appellant. 2. By the impugned order dated 10.2.2020, the learned Single Judge had set aside the exparte decree and directed the defendants to file the written statement. The operative portion of the order is quoted below for ready reference.
'4. I considered the submissions of the learned counsel for the respective parties and examined the relevant documents. Upon such consideration, I find that the death certificate of the 4th defendant evidences that the 4th defendant died on 12.07.2018. Likewise, the death certificate of the 5th defendant evidences that he died on 30.01.2020 and the death certificate of the 8th defendant evidences that she died on 29.12.1989. Therefore, the judgment and decree dated 30.07.2018 was clearly obtained against three dead persons. In addition, as correctly pointed out by the learned counsel for the applicants, the address provided in the plaint is a
common address for all 8 defendants. This address clearly does not match the address of the 6th defendant as specified in O.S.No.1385 of 2019. In addition, the learned counsel pointed out that the address is actually that of a Tasmac Wine Shop. This contention has not been refuted by the learned counsel for the respondent/plaintiff. In fact, in spite of providing several opportunities to file a counter affidavit, the respondent/plaintiff has chosen not to file a counter affidavit on one pretext or the other. The learned counsel for the applicants also submitted that the sale agreement dated 02.06.2014 is a forged instrument, which also reflects this wrong address . However, the validity of the said contention should be tested in the suit. Neverthless, on the basis of the submissions made and the documents perused by me, I have no doubt that the applicants have made out a case to set aside the ex parte judgment and decree. Accordingly, this application is allowed and the ex parte judgment and decree dated 30.07.2018 in C.S.No.212 of 2017 is hereby set aside. The 6th and 7th defendants are directed to file the written statement within four weeks from the date of receipt of a copy of this order.
the death of the three respondents was not brought on record and the decree had obtained exparte against three persons. Therefore the exparte decree has been rightly set aside by the learned trial court and we do not find any reason to interfere with the findings of the learned Single Judge, as such, the Original Side Appeal is liable to be dismissed and accordingly, it is dismissed. Consequently, connected C.M.P.No.5605 of 2020 is closed. No costs.
s/dAssistant Registrar(CO)
True Copy
Sub-Assistant Registrar
To
1.The Sub Assistant Registrar
Original Side
High Court, Madras 104.
+1 CC to M/s. Jagadeeswari, Advocate sr 20338.
O.S.A.No.119 of 2020 &
CMP.5605 of 2020
MG(CO)
SP(17/03/2020)
3 issues framed by the court
Whether the trial court acted correctly in setting aside an ex parte decree and judgment obtained against deceased parties and with irregularities in service.
Whether the Original Side Appeal filed against the order setting aside the ex parte decree deserves maintenance.
Whether the High Court should transfer the trial to the City Civil Court upon a post-facto submission.
2 provisions across 2 enactments
A. Azizul Karim
P.S.Kirubakaran
P.S.Anandan
VINEET KOTHARI
R. SURESH KUMAR
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
