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IN THE HIGH COURT OF JUDICATURE AT MADRAS
R. SUBRAMANIAN, J.
Shanthimalai Trust, Represented by its Managing Trustee, Thiruvanamalai – Appellant
Versus
Arunachala Education & Environment Development Trust (AEED Trust), Rep by its Managing Trustee, Fr. Pancras & Others – Respondent
CRP.NPD. No. 4324 of 2018
Decided On : 28-10-2020
Constitution of India, 1950 – Article 227 – Code of Civil Procedure, 1908 – Order 5 Rule 1 – Permanent Injunction – Cancelling the patta – Revision is by the first defendant in OS No.47 of 2009 seeking an extraordinary prayer to set aside the judgment and decree passed by the learned Principal Subordinate Judge, Thiruvannamalai, in the said suit on 28.04.2009. – Suit in OS No.47 of 2009 was filed by the first respondent herein seeking a declaration of its title over the suit properties, to restrain the petitioner/first defendant Trust, its men, agents, and others by means of permanent injunction from ever interfering with the peaceful possession and enjoyment of the plaintiff Trust over the suit properties, to restrain the respondents 2to 5/defendants 2 to 5 and their subordinates by means of permanent injunction from ever cancelling the patta granted in favour of the plaintiff Trust as per the terms of the settlement deed executed by the 1st defendant Trust in favour of the plaintiff Trust and for costs. – Held, Court do not think the observations of the Hon’ble Supreme Court extracted above would be taken to mean that there is a total bar on the exercise of jurisdiction under Article 227 by the High Courts in cases where a remedy is available under the Code of Civil Procedure. – Even the Hon’ble Supreme Court has only said that the availability of a remedy under the provisions of the Code of Civil Procedure may have to be construed as a near total bar. The Hon’ble Supreme Court has not totally debarred the High Courts from exercising their power under Article 227 in appropriate cases, if the High Court feels that the Trial Court has failed in its duty. – Court find that the Trial Court in the case on hand has not only passed a wholly illegal exparte decree, but it has shirked its responsibility in disposing of the applications for condonation of delay in seeking to set aside the exparte decree within a reasonable time by merely adjourning the proceedings without showing any sense of responsibility. – Court have no hesitation in setting aside the exparte decree dated 28.04.2009, in exercise of my power under Article 227 of the Constitution of India. – The very fact that the exparte decree came to be passed within 30 days of the institution of the suit is by itself a reason to set aside the exparte decree. – Civil Revision Petition Allowed
JUDGMENT :
(Prayer: Civil Revision Petition filed under Article 227 of the Constitution of India, praying to set aside the judgment and decree passed by the Principal Subordinate Court, Tiruvanamalai in O.S.No.47 of 2009 dated 28.04.2009 as null and void, award the cost of this petition.)
1. This matter is taken up for hearing through Video-Conferencing.
This Revision is by the first defendant in OS No.47 of 2009 seeking an extraordinary prayer to set aside the judgment and decree passed by the learned Principal Subordinate Judge, Thiruvannamalai, in the said suit on 28.04.2009.
2. This litigation presents a grim picture of the on goings in the District Judiciary.
3. The suit in OS No.47 of 2009 was filed by the first respondent herein seeking a declaration of its title over the suit properties, to restrain the petitioner/first defendant Trust, its men, agents, and others by means of permanent injunction from ever interfering with the peaceful possession and enjoyment of the plaintiff Trust over the suit properties, to restrain the respondents 2to 5/defendants 2 to 5 and their subordinates by means of permanent injunction from ever cancelling the patta granted in favour of the plaintiff Trust as per the terms of the settlement deed executed by the 1st defendant Trust in favour of the plaintiff Trust and for costs.
4. The suit was filed on 30.03.2009 along with two Interlocutory Applications for interim injunction under Order 39 Rule 1 and 2 of the Code of Civil Procedure which came to be numbered as IA Nos.56 and 57 of 2009. The Trial Court ordered notice in the said Applications returnable by 27.04.2009. Simultaneously summons for the first hearing in the suit was also issued returnable by 27.04.2009. The notice was despatched on 31.03.2009. It is seen from the records that an application to dispense with the notice under Section 80 of the Code of Civil Procedure was filed in IA No.55 of 2009 and the same came to be allowed on 30.03.2009. The suit summons were served on the defendants 1 to 5 on 06.04.2009. The notices in the applications viz. IA Nos.56 and 57 were also served on the same day on all the defendants/respondents. When the suit was called on for hearing on 27.04.2009, the following order was passed, in the suit, by the learned Subordinate Judge, Thiruvannamalai.
On 28.04.2009, the following order came to be passed:
“Proof affidavit of P.W.1 filed and recorded and Exhibits A1 to A15 are marked. Suit is decreed as prayed for with cost.”
The records also reveal that on 27.04.2009, the learned Principal Subordinate Judge, Thiruvannamalai passed the following orders in IA No.56 of 2009.
“Respondents notice served. R2 to R5 are called absent set exparte. Interim injunction granted and is made absolute till the disposal of the suit. This petition is allowed as prayed for accordingly with cost.”
Similar orders were passed in IA No.57 of 2009 also.
5. While things stood thus, the first defendant filed two applications on 04.12.2009, one seeking to condone the delay of 190 days in filing an application under Order 9 Rule 13 of the Code of Civil Procedure to set aside the exparte decree and the other under Order 9 Rule 13 of the of the Code of Civil Procedure to set aside the exparte decree. The application for condonation of delay was numbered as IA No.337 of 2009. The official respondents viz., the defendants 2 to 5 filed an application in IA No.75 of 2010 seeking condonation of delay of 274 days in filing a petition to set aside the exparte decree along with an application to set aside the exparte decree on 09.03.2010.
6. In the meantime, it appears that there was a change in the administration of the plaintiff Trust. Therefore, the plaintiff Trust filed an application in IA No.118 of 2010 seeking to delete the name of N.Kumaran s/o.Neelakandan, as the Managing Trustee of the plaintiff Trust and to substitute the name of
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