CRP NPD/535/2002 of VNEKATALAKSHMI @ RATHANAMMA Vs BAYAMMA on 31 December 2002

1. Bayamma2.Munireddy3.Lakshmi4.Chinna Venkatamma5.Muniamma6.Venkatagiriappa7.Akkachiamma8.Pappamma9.Munilakshmiamma10.Akkiamma11.Venkatesh12.Devaiah13.Minor Srinivasan (Minor 13th respondentrep. by mother and nextfriend R9) .. Respondents Civil Revision Petition preferred against the fair anddecretal order dated 17.12.1996 made in C.M.A.No.16 of 1996 on the file of theSubordinate Judge, Hosur confirming the fair and decretal order dated 18.03.1994 made in I.A.No.253 of 1990 in O.S.No.89 of 1978 on the file of theDistrict Munsif, Hosur.

!For Petitioner .. Mr.C.R.Muralidharan

^For Respondents .. Mr.V.Nicholas for R3

No appearance for R2and R4 to R13

:ORDERThis civil revision petition is directed against the fair anddecretal order dated 17.12.1996 made in C.M.A.No.16 of 1996 by the Court of

Subordinate Judge, Hosur thereby confirming the fair and decretal order dated18.03.1994 made in I.A.No.253 of 1990 in O.S.No.89 of 1978 by the Court ofDistrict Munsif, Hosur on certain grounds, such as that both the Courts belowhave erred in rejecting the application to set aside the exparte decree madeagainst the petitioner, particularly when the petitioner was shown to be aminor on the date of passing of the exparte decree and the petitioner notbeing aware of the pendency of the litigation; that the Courts below haveerred in holding the contention of the petitioner regarding her relationshipwith her mother was not cordial is unbelievable and has rejected the same;that the 5th defendant to the suit, the petitioner's mother was appointed asguardian in the suit and she engaged an Advocate and filed the writtenstatement and subsequently, she did not evince any interest in the suit whenit was taken up for trial and they both have been set exparte, while otherdefendants contested the suit resulting in the suit being decreed on07.06.1982 which the Courts below has failed to appreciate; that the Courtsbelow have failed to appreciate that the petitioner was born on 22.10.1962 andshe attained majority on 22.10.19 80 and despite the same, the firstrespondent/plaintiff had failed to take any step in the suit to declare thepetitioner as a major and even in the decree dated 07.06.1982, the petitionerwas shown only as a minor; that the Courts below have failed to note that thesubsequent appeal in A.S.No.76 of 1982 filed by the other respondents beforethe appellate Court, the petitioner has been shown only as a minor and not asa major and notice of appeal was not served on her and therefore, she couldnot appear in the said appeal at all; that the petitioner came to know of thedecree passed in O.S.No.89 of 1978 only on 21 .02.1990 when she was informedof the petition filed in I.A.No.861 of 1987 by the first respondent for afinal decree; that immediately the petitioner after knowledge, filedI.A.No.253 of 1990 in the suit which the Court has failed to appreciate it;that the Courts below have failed to appreciate that the petitioner isentitled to 1/3rd share in all the properties of Chinna Muni Reddy, which wasaccepted by the first respondent/ plaintiff in an earlier suit in O.S.No.44 of1974 on the file of District Munsif, Hosur and suppressing the same, the firstrespondent has filed the present suit and hence, she deliberately did not takeany step to declare the petitioner as major in a fraudulent manner; that theCourts below erred in holding that the application under Order IX Rule 13C.P.C. is not maintainable and the remedy lies only by way of appeal when thepetitioner was only set exparte in the suit as it abundantly comes to beknown; that the lower appellate Court has not appreciated the decisionreported in A.I.R. 1969 Orissa 52 (Manoranjan Samanta Kumar v. V.BrundabatiVeergam) but has erred in relying on the decision reported in A.I.R. 1985Calcutta 164 (Partosh Kumar Gangully v. Smt. Sitala Bala Ghosh and others)and A.I.R. 1976 Madras 262 (Sherija Bi v. V.Pillai) thereby in view of thefact that the petitioner was not aware of the proceedings and was thereforeunable to appear in the suit and apply for discharge of the guardianship onsuch and other grounds, the petitioner would pray to set aside and revise thefair and decretal order dated 17.12.1996 made in C.M.A.No.16 of 1996 by theCourt of Subordinate Judge, Hosur thereby confirming the fair and decretalorder dated 18.03.1994 made in I.A.No.253 of 1990 in O.S.No.89 of 1978 by theCourt of District Munsif, Hosur allowing the civil revision petition.

2. Since it is a matter of vital importance and an order made

2. Since it is a matter of vital importance and an order made in the above C.R.P. at the earliest would serve the ends of justice, thisCourt expediting the procedures, has decided the matter in an expeditiousmanner.

3. It is a case concerned with the petitioner, who was a minor at the time the first respondent filed the suit in the Court of originaljurisdiction in O.S.No.89 of 1978, which is a suit for partition and separatepossession of the suit properties said to have been left by one Chinna MuniReddy in which the petitioner is said to be having 1/3 rd definite share, nomention need be necessary that the petitioner is a vitally interested party tothe suit. The petitioner is the 6th defendant to the suit and since she was aminor at the time of filing of the suit, the first respondent/plaintiff hastaken steps to appoint her mother as a guardian of the petitioner and in facther mother is also a party to the suit proceedings as the 5th defendant.

4. In these circumstances, the petitioner's case is that she attained majority as on 22.10.1990, since she was born admittedly on 22.10.1962 and that the suit was decreed exparte not only against her but alsoagainst her mother, the 5th defendant, while the other defendants contestingthe suit, the decree as such, has been passed on 07.06.198 2.

5. The petitioner would come forward to take up the plea that she did not know the suit proceedings at all, nor had there been cordialrelationship in existence between herself and her mother and hence, eventhough initially her mother as a guardian, appointed an Advocate to defend thesuit, at a later stage, she had not taken care of the same as a result ofwhich, the petitioner has been set exparte and only when the notice was servedon a final decree petition taken out by the first respondent/plaintiff inI.A.No.861 of 1987 on 28.02.1990, she became aware of what had happened andtook immediate steps to file an application under Order IX Rule 13 C.P.C. toset aside the exparte decree passed against her under the pretext that she wasstill a minor, even though on the date of passing of the decree, that was on07.06.1982, she had very well become a major and therefore, the exparte decreepassed by the lower Court so far as the petitioner is concerned, is a nullity.6.On the part of the first respondent/ plaintiff, she wouldcome forward to deny the allegation on the ground that her mother, as theguardian of the petitioner, appointed an advocate and also filed a writtenstatement and her mother herself was a party to the suit, being the 5thdefendant; that the decree dated 07.06.1982 was not an exparte decree but acontested one by the other defendants; that it is false to allege on the partof the petitioner that she was unaware of the decree and the very suitproceedings till the date of service of notice in I.A.No.861 of 1986 on28.02.1990; that it is further false to allege that the petitioner is entitledto 1/3rd share of the suit properties; that the decree passed by the trialCourt being a legally binding one on the petitioner, because of her nonappearance would not become a nullity and since only after taking such stepsand exhausting the procedures the decree has been passed it would prejudicethe decree that has been passed and therefore even an application to be filedunder Order IX Rule 13 C.P.C. which has been resorted to on the part of thepetitioner is irregular and unacceptable and the remedy lies only inpreferring an appeal before the appellate forum as against the decree and on such grounds, the first respondent/plaintiff would ultimately pray to dismissthe application.

7. At the outset, it has to be decided whether an application,

under Order IX Rule 13 C.P.C., as it came to be filed by the petitioner, couldbe taken as a proper step or proceeding in law? A cursory glance made intothe said provision of law wherein the language is complete and clear andunambiguous to the effect that 'in any case in which a decree is passedexparte against a defendant, he may apply to the Court by which the decree waspassed for an order to set aside' and therefore, there is absolutely noimpediment caused on the part of the petitioner to have resorted to the saidprovisions of law for filing an application to set aside the exparte decree aspassed by the trial Court. Since it is clear from the language employed inthe Section, it could be presumed that even if other defendants are in thesuit and if the said suit has been decided against them in a contested manneron merits, if no participation is there on the part of any one or otherdefendants, such a defendant who has been set exparte in the suit, is atliberty to file an application under order IX Rule 13 C.P.C. and hence, thisquestion regarding the maintainability of the application filed by thepetitioner before the trial Court under Order IX Rule 13 C.P.C. is decided asmaintainable in law.

8. The next question that is to be decided in this case is, whether on such plea taken out on the part of the petitioner that she was aminor when the suit was filed in the year 1978, and that she had become amajor in the year 1980 and even though her mother was appointed as herguardian to defend the suit on her behalf as the 6th defendant in the suit,the petitioner would come forward to allege that no cordial relationshipexisted between herself and her mother and that she was not at all aware ofthe pending of the suit nor informed of anything about the same and therefore,only on service of the final decree notice in the year 1990, immediatelycoming to the knowledge of the dismissal she filed the petition to set asidethe exparte decree. The petitioner's case is that two years after she hadattained majority in the year 1982, the suit had been decided exparte againsther as though she was a minor and the same is a nullity and therefore shewould plead to set aside the exparte decree and permit her to participate inthe further proceedings of the suit, particularly in view of the fact that sheis entitled to a definite 1/3rd share in all the properties of the deceasedChinna Muni Reddy.

9. It is relevant to consider that this application has been filed 1 2 years before 1990 and the said application having been dismissed bythe trial Court an appeal has also been preferred by the petitioner and theappellate Court has passed an concurring order accepting the conclusionsarrived at by the trial Court as a result of which the petitioner has comeforward to file the above revision petition before this Court for all thegrounds such as those which have been mentioned supra.

10. It is a suit filed by the first respondent herein, needless to mention that she has made the petitioner a party to the suit proceedingsand hence impleaded her as the 6th defendant to the suit. The firstrespondent/ plaintiff has taken steps to appoint her mother as the guardian of the minor defendant petitioner resulting in the 5th defendant being appointedthe guardian of the 6th defendant who conducted the case on her behalf. Sincethe plaintiff has come forward to seek relief in the Court as against thedefendants, she should have also been careful only to see that she gets thedecree legally passed in a binding manner against all the defendants in thesuit, lest, she may not be able to enjoy the fruits of the decree if there isa nullity or inconsistency or infirmity in the decree.

11. No doubt need be entertained regarding the majorityattained by the petitioner in the year 1980 since she has offered the exactdate of birth as in the year 1962 and therefore, when the decree was passed inthe year 1982, roughly about two years later, the 6th defendant, thepetitioner, having attained majority in 1980 itself, it is the duty andresponsibility of the plaintiff to see that she gets a proper decree againstproper parties in the proper manner, lest, she may not be able to enjoy thefruits of the decree in a peaceful way. At this juncture, since it is theplaintiff, who is the interested party in getting the decree, she cannotsimply throw the burden on the defendants for having not come forward todeclare the majority as though it is the minor defendant who has filed thesuit seeking some reliefs, especially in a case of this nature wherein theminor pleads no knowledge of the very suit filed by her mother or even thedecree passed against her, unless the plaintiff is in a position to prove tothe effect that inspite of knowledge of the decree passed in the pending suitand that she had deliberately failed and neglected to implead her to theproceedings of the suit, the Court has to presume that the petitioner who wasminor had no knowledge of the suit proceedings or the passing of the decree.12.Since no authenticated evidence has been placed on the partof the first respondent/plaintiff, to the plea taken on the part of thepetitioner/6th defendant that since being a minor at the time of filing of thesuit and inspite of having attained majority, since she was not given tounderstand anything about the suit proceedings, much less, the decree passedon 07.06.1982, the version of the petitioner has to be accepted, in order togive her an opportunity to be heard in the suit wherein her vital andsubstantial interests are at stake, and therefore in these circumstances, itis always desirable to afford an opportunity for the petitioner to haveparticipation in the suit proceedings, particularly in view of the fact thatmost part of the trial procedure has been exhausted when the petitioner wasset exparte and permitting the suit to be proceeded from there, so as to passa decree on merits and in accordance with law which would be binding on allthe parties and therefore, the decision taken on the part of the trial Courtand the first appellate Court as well in a slip-shod manner, is not proper anderroneous in law, since the knowledge of the suit proceedings and the decreepassed in the suit came to her only on the service of the notice in the finaldecree petition on 28.02.1990 and since immediately thereafter, proceedingshave been initiated to set aside the exparte decree, it is only proper to haveallowed the petitioner to participate in the trial proceedings and decisiontaken on merits and in accordance with law thus giving full opportunity forthe petitioner to be heard.

13. The trial Court which dealt with the Interlocutory Application filed by the petitioner and the first appellate Court which has

passed an order adhering the trial Court, have not assigned proper reasons forthe petitioner to have had knowledge prior to the date of 28.02.1 990, whenshe is said to have been served with the notice of the final decree petitionand without having established this fact, the conclusion arrived at bluntlyrefusing the petitioner the opportunity to be heard could only be held to havebeen done in violation of the high principles of natural justice andtherefore, both the orders passed by the District Munsif, Hosur and theSubordinate Judge, Hosur become only liable to be set aside.In result,(i) The above civil revision petition succeeds and the sameis allowed;

(ii) The order dated 18.03.1994 made in I.A.No.253 of 1990in O.S.No.89 of 1978 by the Court of District Munsif, Hosur and theorder dated 17.12.1996 made in C.M.A.No.16 of 1996 by the Court ofSubordinate Judge, Hosur thereby confirming the lower Court orderand dismissing the application and the appeal filed by the petitionerare set aside;

(iii) The decree dated 07.06.1982 passed by the trial Courtin O.S.No.89 of 1978 is also set aside;

(iv) The trial Court is directed to conduct a fresh trialinto the facts and circumstances of the suit and decide the suit onmerits and in accordance with law with due opportunity for allthe parties including the petitioner to participate in theproceedings;

(v) since it is a long pending matter, it has becomeincumbent on the part of this Court to further direct the trial Courtto take up the suit out of turn, posting the same in the emergentlist and expediting the trial procedures so as to complete thetrial and deliver the judgment within six months from the dateof receipt of the copy of this order.

(vi) There shall be no order as to cost.

Index:YesInternet:YessbiTo1. The Subordinate Judge,Hosur.2. The District Munsif,Hosur.