S.A.No.889 of 2002

BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT

DATED : 11.04.2023

CORAM

THE HONOURABLE MR.JUSTICE P.VELMURUGAN

S.A.No.889 of 2002

1.Saida Banu(Died)

2S.Ajzal Batcha(Died)

(A2 is brought on record as LR of the deceased

sole appellant vide order dated 27.11.19)

3.Ooma Ghazala Parveen

4.Afnan Fathima

5.Athufa Mariyam

6.Mohammed Ishaque

7.Minor Arfa Zainab

...Plaintiffs/Applts./Applts.

(Rep. by her mother third appellant)

(A3 to 7 are brought on record as

LRS of the deceased 2^nd appellant vide

Court order dated 06.01.2022)

-Vs-

1.Ramasami(Died)

2.Balachandar

3.Sundaramoorthy

4.Krishnamoorthy(Died)

5.Kumar

6.Palani

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S.A.No.889 of 2002

(R3 to R6 are brought on record

as LRS of the deceased 1^st respondent

vide Court Order dated 08.01.2018)

7.Dhanapackiam

8.Minor Sowmiya

9.Minor Shalini

... Defts./Respts./Respondents

(Minors 8&9 rep. by their mother

and natural guardian Dhanapackiam)

(R7 to R9 are brought on record as LRS of

the deceased 4^th respondent vide Court

order dated 08.01.2018)

PRAYER: Second Appeal filed under Section 100 of the Civil Procedure

Code, against the judgment and decree dated 28.12.2001 passed in A.S.No.

175 of 2001 on the file of the Additional District Court, Trichi, preferred

against the judgment and decree dated 03.04.2001 passed in O.S.No.404 of

1990 on the file of the III Additional District Munsif Court, Trichi.

For Appellants : Mr.R.Subramanian

For Respondents : Mr.Anand Chandrasekar

for M/s.Sarvabhauman Associates

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S.A.No.889 of 2002

J U D G M E N T

The first appellant herein is the plaintiff has filed a suit in O.S.No.

404 of 1990 against the original respondents before the III Additional

District Munsif Court, Trichirappalli, to declare the ex-parte decree passed

in O.S.No.845 of 1987 on 10.03.1988 as null and void and also a

consequential relief for permanent injunction to implead the ex-parte order.

The trial Judge, after the trial, dismissed the suit for default. Against which,

the first appellant herein filed an appeal before the Additional District

Court, Trichirappalli, in A.S.No.175 of 2001. The said appeal was dealt with

by the lower appellate Court and dismissed the same. Aggrieved over the

same, the first appellant/plaintiff has filed the present second appeal before

this Court raising the following substantial questions of law:

“1)Whether in law the Courts below are not wrong

in failing to see that a decree granted ex-parte without notice

to the defendant is null and void.

2)Whether in law the Courts below are right in

finding that notice was not required to the defendants in the

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S.A.No.889 of 2002

petition under Order 9 Rule 9 of C.P.C to restore a suit

dismissed for default.

3)Whether in law the Courts below are right in

omitting to see that the procedural law not having been

followed the decree is null and void.”

2.The case of the first appellant is that the respondents

herein/plaintiffs filed a suit in O.S.No.845 of 1987 before the District

Munsif Court, Trichirappalli,against the original appellants herein for

injunction. In the said suit, ex-parte order was passed on 28.01.1988 for

non-filing of written statement. During the pendency of the said suit, the

second defendant viz., Mohammed Ishaq. Thereafter, the case was posted on

29.01.1988 for taking ex-parte evidence. On that day the respondents herein

did not appear. Therefore, the suit was dismissed for default, on 29.01.1988.

Thereafter, they filed a petition in I.A.No.194 of 1988 to restore the said

suit. The said application was allowed and the suit was taken on file, on the

same day ie., on 10.03.1988, without following the procedure contemplated

under Order 9 Rule 9 of C.P.C and the said suit was dismissed for default on

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