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High Court of Judicature at Madras
THE HONOURABLE MR. JUSTICE G. RAJASURIA
Janpriya Builder represented by its Managing Partner Mr. Cleetus Vincent, Chennai
Versus
N. Bava & Others
C.R.P. (NPD) No. 2784 of 2009 M.P. No. 1 of 2009
Decided on : 08-06-2010
Revision Petition - Civil Injunction - Section 115 of CPC, Article 227 of the Constitution of India - 1996 (2) CTC 611 - The court considered the revision petition filed by a third party challenging an ex parte judgment and decree passed by the lower court in a civil injunction suit. The court held that a third party can invoke revisional jurisdiction under Section 115 of CPC or Article 227 of the Constitution of India. The court referred to the decision in Varada Reddiar and Another v. Jayachandran and Others (1996) 1 MLJ 629: 1996 (2) CTC 611 and emphasized the duty of the lower court to apply its mind before granting a decree. The court also highlighted the need for a judgment, even if ex parte, to be based on merits and supported by evidence. The ex parte judgment and decree were set aside, and the matter was remitted back to the lower court for further proceedings.
Fact of the Case:
The first respondent filed a suit seeking a permanent injunction against the Corporation of Chennai and the Assistant Executive Engineer, Corporation of Chennai. The trial court passed an ex parte judgment and decree in favor of the plaintiff. The revision petitioner, a third party, filed a revision petition challenging the judgment and decree, contending that it was not a speaking one and necessary parties were not added in the suit.
Finding of the Court:
The court found that the ex parte judgment and decree lacked application of mind and did not consider the necessary parties. It emphasized the duty of the lower court to apply its mind before granting a decree and highlighted the need for a judgment, even if ex parte, to be based on merits and supported by evidence. The court set aside the ex parte judgment and decree and remitted the matter back to the lower court for further proceedings.
Issues: The main issue was whether the revision petitioner, as a third party, had locus standi to file the revision and whether the judgment and decree of the lower court could be termed as legal in the eye of law.
Ratio Decidendi: The court held that a third party can invoke revisional jurisdiction under Section 115 of CPC or Article 227 of the Constitution of India. It emphasized the duty of the lower court to apply its mind before granting a decree and highlighted the need for a judgment, even if ex parte, to be based on merits and supported by evidence.
Final Decision: The ex parte judgment and decree were set aside, and the matter was remitted back to the lower court for further proceedings.
Inveighing the order dated 2. 2008 passed by the learned VIII Assistant Judge, City Civil Court, Madras in O.S. No. 4498 of 2008, this civil revision petition is focuseed.
2. Heard both sides.
3. Tersely and briefly, pithily and precisely, the relevant facts, which are absolutely necessary and germane for the disposal of this civil revision petition would run thus:
The first respondent N. Bava herein filed a suit in O.S. No. 4498 of 2008 as against the Corporation of Chennai and the Assistant Executive Engineer, Corporation of Chennai, the respondents 2 and 3 herein seeking the following reliefs: -to grant a permanent injunction restraining the defendants or anybody claiming through or under them from in any way interfering with the plaintiff’s peaceful possession and enjoyment of the suit schedule property and more particularly from interfering with his right to carry on business in the said property and for costs.
(extracted as such)
The revision petitioner herein is not a party to those proceedings. The trial Court passed the ex parte judgment and decree and the entire judgment is extracted here under for ready reference:
“Suit for permanent injunction and for costs.
Proved, Satisfied that the suit be and the same stands decreed as prayed for without cost.”
On 11. 2008, an application was filed by the revision petitioner seeking the following relief:
- to implead the petitioner as party 3 defendant in the suit O.S. No. 4498 of 2008.
Whereupon the Court returned it with the following endorsement.
“The suit got disposed as early as on 9. 2008 itself.
How this petition by the petitioner/3rd party is entertained.
Hence returned.”
Being aggrieved by dissatisfied with the ex parte judgment and decree passed by the lower Court, this revision has been focused on various grounds and among them, the main contention of the revision petitioner is that the judgment of the lower Court is not a speaking one and without application of mind, the said judgment was passed and the Court also did not take into consideration that necessary parties were not added in the suit.
4. Thelearned counsel for the revision petitioner would put forth and set forth his argument, the quintessence of the same would run thus:
The revision petitioner herein happened to be the owner of the big building including the premises referred to in the suit. Undoubtedly, the plaintiff who is R1 herein has been in occupation of a small portion of the premises belonging to the revision petitioner. According to him, it is an unauthorized occupation, which the plaintiff claims to have obtained as a leasee from his alleged lessor one Joseph Cleetus son of Cleetus Vincent. Janpriya Builder is a partnership of it. Cleetus Vincent and his wife, happened to be the partners and whereas Cleetus Vincent’s son namely Joseph cleetus is not a partner and he is not the owner of the said premises also; in such a case, the first respondent herein could not have obtained any valid lease or licence from him. Even though, the allegations in the plaint ace focuseed as against the petitioner, Janpriya Builders yet the respondent No. 1, herein, viz., plaintiff did not choose to implead Janpriya Builders as one of the parties to the suit. Apparently, Janpriya Builders/the revision petitioner herein might be appearing to be a 3 party to the suit, but, in fact, the said suit was engineered only for the purpose of getting some undue advantage as against Janpriya Builders and the plaintiff, also got his hidden intention accomplished by getting such an ex parte judgment which is a non speaking judgment, having no legs to stand.
Accordingly, he prays for allowing the revision petition.
5. Whereas by way of torpedoing and pulverising the argument as put forth on the side of the revision petitioner, the learned counsel for the first respondent would set forth and put forth his argument, the pith and marrow, the warp and woof of them would run thus:
.(i) If at all, the defendants in the sui
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