SupremeToday Landscape Ad
Back
Next
Judicial Analysis Court Copy Headnote Facts Arguments Court observation
Listen Audio Icon Pause Audio Icon
judgment-img

2017 Supreme(Mad) 3977

IN THE HIGH COURT OF JUDICATURE AT MADRAS
D. KRISHNAKUMAR, J.
K. Balakrishnan - Appellant
Vs.
S. Dhanasekar - Respondent
S.A. No. 26 of 2015
Decided On : 06-10-2017

Advocates:
Advocate Appeared:
For the Appellant : Mr. T. Murugamanickam, Ms. Zeenath Begum
For the Respondent: Mr. K. Sathapal, Mr. P. Mohanraj

Headnote:

Code of Civil Procedure, 1908 – Section 2 – Interference With Peaceful Possession – Whether the judgments of the Courts below are vitiated in that while passing an ex-parte decree, the judgment does not reveal a detailed reasoning for coming to a conclusion that a judgment should be passed in favour of the plaintiff – Whether the judgments of the Courts below are vitiated that they have granted a decree for permanent injunction without there being any proof of the plaintiffs possession of the suit property to evidence by an mutation of revenue records – Held, Court is of the view that the judgment and decree passed by the trial court in O.S. are not in consonance with the provisions of the Code of Civil Procedure and also the principles laid down by the Honble Supreme Court as well as this Court. – Hence, there is an error apparent in the judgment of the trial court in O.S. on the file of I Additional District Munsif, Salem and the same is liable to be set aside – Lower appellate Court also without considering the aforesaid provisions and settled principles of law, has dismissed the appeal. – Therefore, the judgment and decree passed by the lower appellate Court is also set aside. – Therefore, the questions of law as framed in the present Second Appeal are answered in favour of the appellant/defendant. – It is made clear that the Second Appeal decided in favour of the appellant only in respect of passing of exparte judgment in the suit. – Second Appeal Allowed

JUDGMENT :

The brief facts of the case as follows:

The respondent/plaintiff has filed a suit in O.S.No.24 of 2012 for permanent injunction against the appellant from interfering with the peaceful possession and enjoyment of the suit property. According to the plaintiff, the suit property originally belonged to one Mariappa Pillai by virtue of a registered sale deed, dated 28.1.1983. A sale agreement, dated 31.10.2004 was entered into between the respondent/plaintiff and the legal heirs of the deceased Mariappa Pillai. Subsequently, the respondent/plaintiff has also purchased the adjacent house site from the legal heirs of Mariappa Pillai by registered sale deed, dated 11.2.2005. The plaintiff is in possession and enjoyment of the same. The appellant/defendant is having house site on the western side of the plaintiff's house site. The defendant attempted to remove the boundary stones in the suit property and to trespass into the suit property. The respondent/plaintiff was examined as P.W.1 and Ex.A1 to A7 were marked. Since the defendant has not entered appearance, exparte decree has been passed against the defendant. Aggrieved by the ex-parte decree, dated 11.1.2013, the defendant had filed an appeal in A.S.No.52 of 2013.

2. Before the Appellate court, the appellant/defendant contended that the trial court failed to record reasons to pass judgment and decree in favour of the respondent/plaintiff. The lower appellate court considering the oral and documentary evidence adduced by the respondent/plaintiff and the grounds raised by the appellant/defendant, confirmed the judgment and decree passed by the trial Court and dismissed the appeal. Challenging the judgment and decree passed by the Courts below, the defendant/appellant has filed the present Second Appeal.

3. This court framed the following substantial questions of law involved, for entertaining the Second Appeal and for further consideration.

(i) Whether the judgments of the Courts below are vitiated in that while passing an ex-parte decree, the judgment does not reveal a detailed reasoning for coming to a conclusion that a judgment should be passed in favour of the plaintiff ?

(ii) Whether the judgments of the Courts below are vitiated that they have granted a decree for permanent injunction without there being any proof of the plaintiff's possession of the suit property to evidence by an mutation of revenue records ?

4. Heard the learned counsel for the appellant and perused the materials available on record.

5. The learned Senior counsel for the appellant/ defendant contended that the Courts below ought to have followed the procedure contemplated under Order 8 Rule 10 C.P.C. The trial court failed to appreciate the oral and documentary evidence to prove the plaintiff's possession of the suit property.

6. The only ground raised by the appellant is that the trial court passed the exparte decree without giving detailed reason or appreciating the evidence adduced by the plaintiff. The learned counsel for the appellant/defendant submitted that the respondent/plaintiff herein filed the suit before the Additional District Munsif Court for permanent injunction. The trial court passed the exparte decree against the appellant/defendant. Challenging the judgment and decree passed by the trial court, the appellant/defendant preferred an appeal before the Sub Court by raising a ground that the trial court failed to record reasons in the judgment for granting relief in favour of the plaintiff. According to the learned counsel for the appellant/defendant, the trial court has simply decreed the suit, by recording a finding that on the basis of the evidence of P.W.1 and the documents marked as Ex.A1 to A7, the plaintiff has proved the case. In the said judgment, except the aforesaid fact, there is no discussion or appreciation of evidence adduced by the plaintiff nor any reason in the judgment for granting relief in favour of the plaintiff. According to the learned Senior counsel for the appella


































































Click Here to Read the rest of this document

1
2
3
4
5
6
7
8
9
10
11
SupremeToday Portrait Ad
supreme today icon
logo-black

An indispensable Tool for Legal Professionals, Endorsed by Various High Court and Judicial Officers

Please visit our Training & Support
Center or Contact Us for assistance

qr

Scan Me!

India’s Legal research and Law Firm App, Download now!

For Daily Legal Updates, Join us on :

whatsapp-icon Back to top