The Authorised Officer Vs Edward Selvakumar

Appeal against the Judgment and Decree dated 19.10.2016 passed in OS.No. 95 of 2012 on the file of Principal District and Sessions Judge at Tiruvallur.

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https://www.mhc.tn.gov.in/judis

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AS No. 593 of 2023

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For Appellant(s): M/s.R.Imayavaremban for M/S.Ramalingam and Associates For Respondent(s): M/s.Akshay Ram for M/s.VAT Legal For R1 & R2 R3 TO R8 – No Appearance

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JUDGMENT

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(Judgment of the Court was delivered by C.V.Karthikeyan J.)

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The eighth defendant in O.S.No.95 of 2012 is in appeal questioning the judgment and decree, dated 19.10.2016, passed by the Principal District Judge, Tiruvallur,

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Even before entering into the discussion on the merits of the suit filed, we extract the judgment impugned herein in its entirety for better appreciation :

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Suit for (i) declare that the settlement deed dated 17.02.2003 registered as Document No.820 on the file of the Sub Registrar, Kundrathur, executed in favour of the 5^th Defendant by the settlor Jaymary S.K.John, as null and void with regard to the 1/7th share of the plaintiff in the suit schedule (ii) for permanent injunction restraining the 8^th defendant his men, agents or any person claiming through them from dealing with the suit schedule mentioned properties (iii) for preliminary decree for partition and separate possession of the plaintiff’s 1/7th share and to partition the suit properties morefully described in the schedule hereunder and allot 1/7th share by metes and bounds in favour of the plaintiff and directing the defendants to pay the costs of the suit.

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https://www.mhc.tn.gov.in/judis

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AS No. 593 of 2023

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PW’s proof affidavit filed. Ex.A1 to Ex.A8 are marked. Claim proved. Preliminary decree is passed as prayed for with costs.

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A perusal of the extracted portion above would show that the learned District

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Judge had failed to consider whether in the evidence recorded the claim of the plaintiff had been proved in the manner known to law and also had failed to consider whether the documents marked as Exs.A-1 to A-8 were admissible, relevant and proved in the manner known to law.

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It is trite law that even if defendants remain ex parte , the burden is on

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the plaintiff to prove every averment stated in the plaint through oral and documentary evidence and, in the absence of such proof, a decree can never follow. There must be a discussion on the nature of averments in the plaint, there must be a discussion on the nature of evidence adduced, and there must be a discussion on each and every document filed on their admissibility, of their relevancy, and whether they had been proved in the manner known to law. In the absence of any such discussion, any judgment rendered is a nullity.

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The judgment extracted above is a classic example of a judgment, which should be declared as a nullity and we are dismayed at the nature of judgment passed by the Principal District Judge, Tiruvallur, in the aforementioned Original Suit.

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https://www.mhc.tn.gov.in/judis

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AS No. 593 of 2023

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In Ramesh Chand Ardawatiya v. Anil Panjwani, AIR 2003 SC 2508 ,

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the Hon’ble Supreme Court held as follows :

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“33…. But there is substance in the other limb of this submission made by the learned senior counsel for the defendant-appellant. Even if the suit proceeds ex-parte and in the absence of a written statement, unless the applicability of Order VIII Rule 10 of the CPC is attracted and the Court acts thereunder, the necessity of proof by the plaintiff of his case to the satisfaction of the Court cannot be dispensed with. In the absence of denial of plaint averments the burden of proof on the plaintiff is not very heavy. A prima facie proof of the relevant facts constituting the cause of action would suffice and the Court would grant the plaintiff such relief as to which he may in law be found entitled. In a case which has proceeded ex-parte the Court is not bound to frame issues under Order XIV and deliver the judgment on every issue as required by Order XX Rule 5. Yet the trial Court would scrutinize the available pleadings and documents, consider the evidence adduced, and would do well to frame the ‘point for determination’ and proceed to construct the ex-parte judgment dealing with the points at issue one by one. Merely because the defendant is absent the Court shall not admit evidence the admissibility whereof is excluded by law nor permit its decision being influenced by irrelevant or inadmissible evidence.”

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