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2009 Supreme(Mad) 5534
High Court of Judicature at Madras
THE HONOURABLE Mr. JUSTICE M. VENUGOPAL
Suseela
Versus
Ramakrishnan & Another
Civil Revision Petition (NPD) No. 2952 of 2009 & M.P.No.1 of 2009
Decided on : 15-12-2009
For the Petitioner:R. Nalliappan, Advocate.
For the Respondents:R1, N. Manokaran, Advocate.
The main legal point established in the judgment is that the provisions of Order 9 Rule 13 of the Civil Procedure Code apply only to a person who has been a party to the main proceedings and specifically arrayed as a defendant, and not to a stranger to the main suit proceedings.
Headnote:
Limitation Act - Civil Procedure - Order 9 Rule 13 - 5 of the Limitation Act - 3 of the Civil Procedure Code - 436 of 2006 in O.S.No.411 of 1990 - The court discussed the provisions of Order 9 Rule 13 of the Civil Procedure Code and its applicability to a stranger to the main suit proceedings. It also referenced the Limitation Act and the decision of the Honourable Supreme Court in Rajkumar -vs-Sardari Lal, the decision of this Court in M.George -vs-M.Albert, and the decision of this Court in Ramjisingh Bhulian Singh -vs-Tarun K. Shah and others, to support its analysis and conclusion.
Fact of the Case:
The petitioner filed a Civil Revision Petition against the order dismissing the application to set aside an ex-parte Preliminary Decree dated 09.03.1994, passed by the learned District Munsif, Rasipuram. The petitioner, being the sister of the second respondent/plaintiff, claimed a share in the suit properties and sought to set aside the decree on the grounds of fraud and error by the trial Court.
Finding of the Court:
The Court found that the revision petitioner, being a stranger to the main suit proceedings, could not avail the benefits of Order 9 Rule 13 of the Civil Procedure Code. It concluded that the revision petition lacked merits and was dismissed, affirming the trial Court's order.
Issues: The issues revolved around the applicability of Order 9 Rule 13 of the Civil Procedure Code to a stranger to the main suit proceedings, the entitlement of the revision petitioner to set aside the ex-parte Preliminary Decree, and the maintainability of the Civil Revision Petition.
Ratio Decidendi: The Court's decision was based on the interpretation of Order 9 Rule 13 of the Civil Procedure Code, which it found applicable only to a person who has been a party to the main proceedings and specifically arrayed as a defendant. It emphasized that the revision petitioner, being a stranger to the main suit proceedings, could not make use of the provisions of Order 9 Rule 13.
Final Decision: The Civil Revision Petition was dismissed, and the trial Court's order was affirmed, with each party bearing their own costs. The Court clarified that the dismissal of the Civil Revision Petition would not preclude the revision petitioner from seeking appropriate remedy in the manner known to law if advised to do so.
The petitioner has filed this Civil Revision Petition as against the order dated 08.07.2009 in I.A.No.436 of 2006 in O.S.No.411 of 1990 passed by the learned District Munsif, Rasipuram in dismissing the application filed by the petitioner under Section 5 of the Limitation Act praying to set aside the ex-parte Preliminary Decree dated 09.03.1994.
2. The Trial Court while passing order in I.A.No.436 of 2006, dated 08.07.2009 has interalia come to the conclusion that the petitioner has projected the I.A.No.436 of 2006 after a lapse of 12 years from the date of passing of the Preliminary Decree and resultantly dismissed the application without costs.
3. According to the learned counsel for the revision petitioner, the revision petitioner is the sister of the second respondent/plaintiff, who has a share in the suit properties and the first respondent/plaintiff has not arrayed the revision petitioner as one of the parties to the main suit in O.S.No.411 of 1990 and the suit has been filed before the trial Court to defraud the petitioner and in the main suit a Preliminary Decree has been passed on 08.07.2009 and a Final Decree proceedings have been initiated in I.A.No.695 of 2005 and in the Final Decree application a Commissioner has been appointed and he is to file his report and at this stage, the matter is pending and moreover the trial Court has committed an error in coming to the conclusion that the petitioner has projected the I.A.No.436 of 2006 after a long lapse of 12 years and the revision petitioner has no other alternative but to file an application to set aside the exparte Preliminary Decree by condoning the intervening delay and since the impugned order of the trial Court in I.A.No.436 of 2006 suffers from material irregularity and patent illegality the same needs to be set aside by this Court sitting in revision.
.4. Expatiating his submission, the learned counsel for the revision petitioner cites the decision of the Honourable Supreme Court in Rajkumar -vs-Sardari Lal and Others (2004) 2 Supreme Court Cases 601 at Page-602 wherein it is among other things held that;
.The word "he" in Order 9 Rule 13 cannot be rigidly construed so as to exclude the person who has stepped into the shoes of the defendant.
.5. He also relies on the decision of this Court in M.George -vs-M.Albert (2005) 3 MLJ 327 wherein it is held that;
.The Code of Civil Procedure is designed to facilitate justice and not a penal enactment and therefore, the order of the Lower Court on payment of cost since the application filed belatedly has been confirmed.
6. Also, the learned counsel for the revision petitioner brings it to the notice the decision of this Court in Ramjisingh Bhulian Singh -vs-Tarun K. Shah and others 2002 AIHC
4035-4036 wherein it is among other things held that;
The application for setting aside the exparte decree and the execution petition filed by the petitioner who was stranger to decree would be maintainable.
7. In response, the learned counsel for the first respondent/plaintiff submits that the revision petitioner is a stranger to the suit and since she is not a party to the main suit proceedings, she is not entitled to avail the benefits of Order 9 Rule 13 of Civil Procedure Code inasmuch as the ingredients of the said provision speaks only of the word defendant and when the revision petitioner admittedly is not a party to the proceedings in the main suit and when an exparte preliminary decree has admittedly been passed by the trial Court, then, the revision petition filed by the revision petitioner is not per se maintainable in law and on this score alone the revision petition has to be dismissed in limini.
.8. In support of the contention that the revision petitioner cannot maintain the present revision petition before this Court, the learned counsel for the first respondent/plaintiff cites the decision in Smt.Santosh Chopra -vs-Teja Singh and Another AIR 1977 DELHI 110, wherein it is held that;
.Only the defe
