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2010 Supreme(Mad) 3036
High Court of Judicature at Madras
THE HONOURABLE MR. JUSTICE G. RAJASURIA
Peddavadan
Versus
Chinnakannu & Another
C.R.P.(NPD).Nos.75 of 2006 & 1631 of 2005 & C.M.P.Nos.683 of 2006 & 18752 of 2005
Decided On : 27-07-2010
For the Petitioner:D. Rajagopal, Advocate.
For the Respondents:R1, R. Margabandhu, Advocate.
A third party can file an application to set aside an ex-parte decree and be impleaded in the suit, and during final decree proceedings, the court must work out equities.
Headnote:
Ex-parte Decree - Impleadment - O.S.No.168 of 1996 - Order 20 Rule 12 CPC - 1996(3) ALT 1097-CH.YASHODA DEVI AND ANOTHER V. B.DAYAKAR REDDY AND OTHERS
Fact of the Case:
The plaintiff filed a suit seeking division of properties and other reliefs. The defendant, who is the plaintiff's brother, remained absent, and an ex-parte decree was passed. The plaintiff filed applications for the appointment of a Commissioner and obtaining a final decree. A third party filed applications to set aside the ex-parte decree and to be impleaded as a defendant.
Finding of the Court:
The court held that the third party could be added as a defendant in the final decree proceedings and allowed the applications, setting aside the preliminary decree and permitting impleadment.
Issues: Whether the lower Court was justified in setting aside the preliminary decree and permitting impleadment of the third party.
Ratio Decidendi: The court found that the third party could claim the share of the original defendant and could be added as a defendant in the final decree proceedings. The court also emphasized the need to work out equities during the final decree proceedings.
Final Decision: The orders of the lower Courts were set aside, and the preliminary decree was upheld. The third party was to be added as a defendant in the final decree proceedings, and the matter was to be disposed of within four months.
1. Inveighing the order dated 10.1.2005 passed by the Additional District Munsif, Vellore, in I.A.Nos.18 and 17 of 2004 in O.S.No.168 of 1996, these civil revision petitions are focussed.
2. Broadly but briefly, narratively but precisely, the relevant facts absolutely necessary and germane for the disposal of these revision petitions would run thus:
(i) The revision petitioner herein filed the suit O.S.168 of 1996 seeking the following reliefs:
"(a) to direct the division of the suit properties into two equal share and allot one such share to the plaintiff;
(b) to direct the defendant to deliver possession of the suit properties so allotted to the plaintiff directly or through court;
(c) to direct enquiry under Order 20 Rule 12 CPC in respect of mesne profits.
(d) to direct the defendant to pay the cost of the suit."
(ii) The original defendant is none but the brother of the revision petitioner/plaintiff. Since the defendant remained absent, ex-parte decree was passed granting the reliefs as prayed in the suit.
(iii) It so happened that after obtention of the preliminary decree, the revision petitioner/plaintiff filed the applications to get the Commissioner appointed and for obtaining a final decree.
(iv) While the commissioner appointed in the case was processing the matter, the respondent herein, namely, Chinnakkannu filed the two interlocutory applications I.A.Nos.17 and 18 of 2004 with the following prayers:
I.A.No.17 of 2004: to set aside the exparte decree passed on 17.9.2002.
I.A.No.18 of 2004: To implead him as 2nd defendant in the suit.
(v) Ultimately, the lower Court allowed the said Chinnakkannu to get himself impleaded as one of the defendants in the suit and also allowed the one other application in setting aside the ex-parte preliminary decree passed in the suit.
3. Being aggrieved by and dissatisfied with the said orders, these revisions have been filed more or less on the same grounds by the plaintiff, the gist and kernal of them would run thus:
Chinnakkannu being the purchaser pendente lite is having no right to get the ex-parte decree set aside and he is not at all a necessary party and the Court below after two years of passing of the preliminary decree set aside the same and permitted the said Chinnakkannu also to get impleaded, ignoring the doctrine of lis pendens.
Accordingly, the revision petitioner/plaintiff prays for setting aside the orders of both the Courts below.
4. Whereas, by way of torpedoing and pulverising the arguements as put forth and set forth on the side of the revision petitioner, the learned counsel for the first respondent-Chinnakkannu would advance his arguments, which could tersely and briefly be set out thus:
(i) Suppressing the real facts, the plaintiff did choose to file the suit arraying his brother Chinnappan as the sole defendant. Chinnappan even before the filing of the suit by the plaintiff sold his half share in the suit properties in favour of one Dhanalakshmi and Jegannathan, vide sale deeds dated 5.10.1987 and 6.12.1993, respectively and as such, even before the filing of the suit by the plaintiff in the year 1996, Dhanalakshmi and Jegannathan acquired right over the suit properties, but they were not impleaded in the suit, by the plaintiff.
(ii) Subsequently, the said Dhanalakshmi and Jagannathan sold the property, which they purchased from Chinnappan in favour of the respondent/Chinnakkau in the year 1998. Chinnakkannu was not aware of the proceedings. When the Court Commissioner visited the property concerned for measurement and demarcation, he, within 30 days from the date of knowledge filed such applications and the Court below correctly allowed those applications, warranting no interference by this Court in the revision.
Accordingly, the learned counsel for the first respondent prays for dismissing the CRP.
5. Heard both sides.
6. The point for consideration is as to whether the lower Court was justified in setting aside the preliminary dec
