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2016 Supreme(Mad) 753

IN THE HIGH COURT OF JUDICATURE AT MADRAS
P.R. SHIVAKUMAR, J.
Damodharan - Petitioners
vs.
Mrs.Kantha Bhattad – Respondent
C.R.P (PD) Nos.992 & 993 of 2016
Decided On : 30-03-2016

Advocates Appeared:
For the Petitioners: Mr. G. Justin

The court emphasized that the proceedings under Article 227 of the Constitution of India cannot be converted into an appeal against an order or a revision.

Headnote:

Article 227 - Civil Procedure - O.S.No.1393 of 2008 - The court discussed the mistakes in the description of parties, the setting aside of the ex parte decree, and the impleading of the respondents as party defendants. The court confirmed the order of the trial court with a modification in the decreetal order.

Fact of the Case:

The suit was filed by C. Govindaraj and others against D. Sathyadharan and Mrs. Kalpana. An ex parte decree was passed, and later, respondents 1 and 2 filed a suit for a declaration of their title in respect of the suit property. They then filed applications to get themselves impleaded as party defendants and to set aside the ex parte decree.

Finding of the Court:

The court found mistakes in the description of parties but concluded that the order of the trial court setting aside the ex parte decree and impleading the respondents as party defendants cannot be interfered with and must be confirmed.

Issues: Mistakes in the description of parties, setting aside of the ex parte decree, and impleading of the respondents as party defendants.

Ratio Decidendi: The court confirmed the order of the trial court with a modification in the decreetal order, emphasizing that the proceedings under Article 227 of the Constitution of India cannot be converted into an appeal against an order or a revision.

Final Decision: Both the Civil Revision Petitions were dismissed with a modification in the decreetal order in I.A.No.1385 of 2015 to implead the petitioners as party defendants in the original suit and rank them as defendants 3 and 4.

ORDER :

These matters stand listed today for admission. The revisions under Article 227 of the Constitution of India arise out of a common order dated 06.11.2015 made by the learned District Munsif-Cum-Judicial Magistrate, Sriperumpudur in I.A.Nos.1385 and 1386 of 2015 in O.S.No.1393 of 2008 on the file of the said Court for impleading the respondents 1 and 2 as party defendants and to set aside the ex parte decree dated 23.02.2010 respectively.

2. The above said suit came to be filed by one C. Govindaraj and 6 others, who were the sons and daughters of Govindaraj, who is no more, against one D. Sathyadharan (died) and 2) Mrs. Kalpana W/o. Arpudharaj. Though 6 names are found in the first paragraph of the plaint as the plaintiffs, their ranks, namely serial numbers have not been furnished in the plaint. In fact, it is not known whether the plaintiffs 2 to 6 were originally on record as plaintiffs along with the deceased Govindaraj or they got impleaded subsequently as his legal representatives. It is also not known as to what happened to the legal representatives of Sathyadharan, shown as the defendant. Mrs. Kalpana, W/o. Arpudharaj is also shown as a defendant, but the ranks of the above said persons, have not been furnished in the cause title. It is also not known whether Kalpana was originally a defendant or she was impleaded as legal representative of deceased Sathyadharan. In the said suit, an ex prate decree came to be passed on 23.02.2010 as the said Kalpana did not contest the case. Subsequently, respondents 1 and 2 herein filed a suit on the file of the Sub-Court, Kancheepuram against the petitioners 1 to 5 in the revisions for a declaration of their title in respect of the suit property and for a consequential permanent injunction restraining them from interfering with their alleged peaceful possession and enjoyment of the suit property. In the said suit, an application I.A.No.172 of 2013 was filed for interim injunction. While advancing arguments in the said application in O.S.No.43 of 2013, the counsel for the revision petitioners 1 to 5 herein produced a certified copy of the decree passed in O.S.No.1393 of 2008 in the very same Court. Only thereafter, the respondents 1 and 2 herein came to know that an ex parte decree was obtained behind their back by the deceased Govindaraj, who was the first plaintiff in the suit in respect of the suit properties against Sathyadharan (deceased) and Kalpana without impleading the purchasers from Govindaraj by a sale deed dated 05.11.1980, 18 years prior to the filing of the suit and the subsequent purchasers from the said Sathyadharan including the respondents 1 and 2 herein. As the respondents 1 and 2 felt that it was a collusive ex parte decree obtained behind their back and their rights were at stake, they filed the above said I.A.Nos.1385 and 1386 of 2015 in O.S.No.1353 of 2008 to get them selves impleaded as party defendants and to enable them to get the ex parte decree set aside.

3. But the counsel for the respondents 1 and 2 in drafting the applications has excelled the counsel for the plaintiff not in the right direction, but in the wrong direction by making a meaningless prayer. What the respondents 1 and 2 herein/petitioners in the interlocutory applications wanted was to seek permission of the Court to file the application as a third party to set aside the ex parte decree and also for their impleadment as party defendants in the above said suit. While coining the prayer in the application for impleadment, they have committed an error and thus they prayed for their impeadment as defendants and their ranking as Defendants 7 and 8. In fact, there were only two defendants including the deceased first defendant and the prayer ought to have been made either simply for their impleadment as defendants or with a specific indication that they should be impleaded as defendants and ranked as Defendants 3 and 4. The said mistake was not noticed by the trial Court. The counsel for t









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