IMPORTANT POINT
The discretion of the trial court to set aside an ex parte decree under Order IX Rule 13 CPC is essential to ensure a fair trial, particularly when the opposing party has not been given a reasonable opportunity to present their case.

ORDER :

THE HON'BLE MR.JUSTICE SATHI KUMAR SUKUMARA KURUP

Both the Civil Revision Petitions had been filed seeking to set aside the Fair and Decretal Order dated 12.02.2021 made in I.A.Nos.1612 and 1614 of 2017 in O.S.No.191 of 2011 on the file of the learned District Munsif, Avinashi.

2. The learned Counsel for the Revision Petitioners submitted that the Revision Petitioners are the Plaintiffs in the suit in O.S.No.191 of 2011 on the file of the learned District Munsif, Avinashi. The Defendants had entered appearance and filed written statement, issues were framed and the Suit was posted for Trial. In the Trial, the second Plaintiff was examined as P.W-1. Exs.A-1 to A-18 were marked. Subsequently, it was repeatedly adjourned for cross examination. Since P.W-1 was not cross examined after grant of sufficient opportunities, the learned District Munsif, Avinashi had posted the case for further witness for the Plaintiffs. Accordingly, P.W-2 and P.W-3 were also examined in chief and posted for cross examination. Even after examination of P.W-2 and P.W-3, the case was repeatedly posted for cross examination. Ultimately on 16.09.2017 the case was posted for arguments. Still the Defendants did not file any Petition to set aside the ex parte Order. Thereafter, arguments heard and on merit the learned District Munsif, Avinashi had pronounced the Judgment on 10.10.2017. Subsequently, the Defendants 1 and 3 filed I.A.No.1614 of 2017 and Defendants 2 and 4 filed I.A.No.1612 of 2017 under Order IX Rule 7 of CPC. Order IX Rule 7 of CPC can be invoked only when the proceedings are pending before Court. The learned District Munsif had after hearing arguments, pronounced Judgment on merits on assessment of the evidence. Therefore, the Plaintiffs as Respondents in I.A.No.1612 of 2017 as well as I.A.No.1614 of 2017 had filed counter vehemently objecting to the Petition under Order IX, Rule 7 of CPC and also contending that since the Judgment was passed on merit, the Defendants have to prefer an Appeal under Order XVII, Rules 1 to 3 of CPC.

3. The learned District Munsif, Avinashi, ignoring the vehement objection of the Plaintiffs as Respondents in I.A.Nos.1612 and 1614 of 2017 had mechanically passed orders thereby setting aside the ex parte decree. Aggrieved by the orders passed in I.A.Nos.1612 and 1614 of 2017 the Plaintiffs had filed two Civil Revision Petitions in C.R.P.Nos.2207 and 2208 of 2021.

4. It is the contention of the learned Counsel for the Revision Petitioners that the order passed by the learned District Munsif, Avinashi, is not well reasoned order as per Order IX, Rule 7 of CPC and as per Order XVII, Rules 1 to 3 of CPC. Therefore, the Order passed by the learned District Munsif, Avinashi allowing the I.A.Nos.1612 & 1614 of 2017 are to be set aside. In support of his contention, the learned Counsel for the Revision Petitioners has placed reliance on the reported Ruling of the Hon'ble Supreme Court of India in (2003) 5 SCC 641 [B.Janakiramaiah Chetty -vs- A.K.Parthasarthi and others] and (2019) 6 SCC 387 [Bhivchandra Shankar More -vs- Balu Gangaram More and others].

5. The learned Counsel for the Respondents Thiru.V.Anandha Murthy submitted his arguments. As per his submissions, the suit in O.S.No.191 of 2011 on the file of the learned District Munsif, Avinashi was filed by the Revision Petitioners for the relief of declaration of title to the suit properties and for permanent injunction against the Defendants. The Plaintiffs are related to the Defendants. After filing of the written statement, issues were framed and suit was proceeded for trial. The evidence of the Plaintiffs was recorded by the learned District Munsif, Avinashi. Inspite of several chances, the Defendants did not cross-examine the Plaintiffs' witnesses. Therefore, the learned District Munsif, Avinashi, had decreed the suit ex parte. The Defendants filed Petition under Order 17, Rule 3 which was dismissed and the judgment was pronounced and ex parte decree granted. Sub