MEMORANDUM OF GROUNDS OF CIVIL REVISION PETITION
(Under Article 227 of the Constitution of India)
IN THE HIGH COURT OF JUDICATURE AT MADRAS
MADURAI BENCH
C.R.P.(MD)NO. /2023
Against
I.A.No.1/2020
In
O.S.No:92/2011
(ON THE FILE OF THE PRINCIPAL SUB COURT, SRIVILLIPUTHUR)
Seethalakshmi
W/o Murugiah,
Door No.69, Sevalpatti South Street,
Rajapalayam Taluk,
Virudhunagar District. …. PETITIONER/PETITIONER/DEFENDANT
--Vs—
Selvarani
W/o Late Chandrasekaran,
Door No.40/46B, Sevalpatti North Street,
Rajapalayam Taluk,
Virudhunagar District.…. RESPONDENT/RESPONDENT/PLAINTIFF
The address for service of summons, notices etc to the
petitioner is as stated above and that of his counsels
MR.R.SURIYANARAYANAN, MRS.C.JEYA INDRA PATEL AND M.RAJESH
HAVING OFFICE AT PLOT NO.750, KARPAGA NAGAR, 4TH STREET,
K.PUDUR, MADURAI - 7.
The address for service of notices to the respondent is as
stated above.
..2..
The Civil Revision Petitioner begs to prefer the memorandum
of grounds of revision against the Fair order and Executable order,
dated 31.03.2023, made in I.A.No.1/2020 in O.S.No:92/2011 on the
file of Principal Sub Judge, Srivilliputhur, on the following among
other
GROUNDS
1. The court below ought to have allowed the petition to
condone the delay of 94 days, in filing the petition to set aside the
exparte decree and judgment dated 10.09.2019, and made in
O.S.No.92/2011, as the same is passed without merits, hence the
same is liable to be set aside but dismissed the petition, as it is not
maintainable, as the judgment is not an exparte one, but on merits,
is incorrect and illegal.
2. The court below failed to see that the petitioner’s husband
was examined as D.W1 and his chief examination is over by filing
the proof affidavit and for his cross examination, he was not
available due to the quarrel with the petitioner and went away and
in such a case, the court below ought to have given chance to the
petitioner to examine herself on her side but closed the side of
defendant’s side evidence for the non-appearance of D.W1 and
passed the judgment and decree is nothing but an exparte one and
the same could be set aside by entertaining the petition but
dismissed the same is incorrect.
3. The court below failed to see that as per Order 17 Rule 2 &
3(b) CPC, when the petitioner is absent on the day of hearing then
the court shall pass the exparte judgment but without doing so,
passing the judgment on merits even in the absence of petitioner
and without giving chance to produce her side witnesses is illegal.
4. The court below dismissed the petition on hyper technical
ground without going to the merit of the case for setting aside
exparte judgment, which is occurred due to excess of jurisdiction
and so the interference under Article 227 of Constitution of India is
necessitated.
Therefore it is humbly prayed that this Hon'ble court may be
pleased to call for the records relating with the Executable order and
Fair order, 31.03.2023, made in I.A.No.1/2020 in O.S.No:92/2011 on
the file of Principal Sub Judge, Srivilliputhur, and set aside the same
and thus render justice.
MEMO OF VALUATION
The value of the suit : Rs. /-
Court fee paid thereon Rs.
/-
Value of I.A Rs. Incapable
Court Fee paid Rs.20/-
Value of CRP Rs. Incapable
Court fee paid thereon Rs.500/-
Dated at Madurai this day of June 2023
COUNSEL FOR THE PETITIONER
IN THE HIGH COURT OF JUDICATURE AT MADRAS
MADURAI BENCH
C.M.P.(MD) No. /2023
In
C.R.P.(MD)NO. /2023
Seethalakshmi
W/o Murugiah,
Door No.69, Sevalpatti South Street,
Rajapalayam Taluk,
Virudhunagar District. …. PETITIONER/PETITIONER
--Vs—
Selvarani
W/o Late Chandrasekaran,
Door No.40/46B, Sevalpatti North Street,
Rajapalayam Taluk,
Virudhunagar District. …. RESPONDENT/RESPONDENT
AFFIDAVIT OF SEETHALAKSHMI
I, Seethalakshmi W/o Murugiah, Hindu aged about 71 years
and residing at Door No.69, Sevalaptti South, Street, Rajapalayam
Taluk, Virudhunagar District, do hereby solemnly affirm and
sincerely state as follows:-
1. I am the petitioner herein and the petitioner in the above
CRP and as such well acquainted with the facts of the case.
2. I submit that the respondent filed a suit for declaration and
recovery of possession against me, in O.S.No.92/2011 on the file of
Principal Sub Judge, Srivilliputtur. In the said suit, I filed my detail
written statement. Then the trial is commenced and after
examination of the plaintiff side whiteness, my husband is examined
as DW1 on 08.03.2019 and through him exhibits, EX.B1 to B4 are
marked.
Page No: 1
Corrections:
..2..
Thereafter the case is posted for cross examining of DW1 on
22.03.2019, 12.04.2019, 07.06.2019, and 21.06.2019, on that day
since my previous counsel was said to be expired, my present
counsel filed a vakalth on behalf of me and seek time. Then the case
is posted on 27.08.2019. Again it is posted for cross-examination for
DW1 on 14.08.2019 and 27.08.2019, on that day for the non-
appearance on DW1, the evidence on the defendant side is closed
and the case was posted on 05.09.2019 for argument. Then it is
posted on 09.09.2019 for judgment but on 10.09.2019, a decree and
judgment is passed by declaring that the plaintiff is the absolute
owner of the suit property and for recovery of possession.
3. I submit that though I am party defendant in the suit since I
am illiterate, my husband alone is conducting the case on behalf of
me and he was examined as DW1 and made his deposition by way
of filing proof affidavit but due to the family dispute, followed
quarrel between myself and husband, he left the home and did not
turn up for cross examination. I am ready to depose evidence on my
side, if I have a chance for proceeding with the case to substantiate
my claim. Hence after knowing the ex-parte decree dt.10.09.2019, I
filed a petition to set-aside ex-parte decree and judgment in
I.A.No.2/2020, along with delay excuse petition in I.A.No.01/2020, to
condone the delay of 94 days but the same was dismissed on
31.03.2023, on the ground that the decree and Judgment
dt.10.09.2019 is not an ex-parte but on merits and so the petition is
not maintainable. Hence I file this revision by invoking Article 227 of
Constitution of India, as the impugned order suffers with illegality
and excess of jurisdiction.
Page No: 2
Corrections:
..3..
4. I submit that the court below failed to see that the judgment
is passed one under order 17 rule 2 of CPC and not under order 17
rule 3 of CPC and in such a cases the judgment passed should be an
ex-parte one and the same is liable to set aside one.
5. I submit that during the pendency of the CRP, the
respondent may take further proceeding to recover the possession
of the suit property from me, hence it become necessary to stay the
operation of decree and judgment dt.10.09.2019 made in
O.S.No.96/2019 on the file of Principal Sub Judge, Srivilliputtur,
otherwise I will be put in to irreparable loss and injury.
Therefore it is humbly prayed that this Hon'ble court may be
pleased to stay the operation of decree and judgment dt.10.09.2023
in O.S.No.96/2019 on the file of the Principal Sub Judge,
Srivilliputtur, pending disposal of the CRP Petition and thus render
justice.
Solemnly affirm at Madurai
this day of June 2023 Before Me
and after knowing the contents
of affidavit in Tamil he has put
his signature in my presence. Advocate Madurai
Page No: 3 & last page
Corrections:
MEMORANDUM OF CIVIL MISCELLENEOUS PETITION
(UNDER SEC.151 CPC)
IN THE HIGH COURT OF JUDICATURE AT MADRAS
MADURAI BENCH
C.M.P.(MD) No. /2023
In
C.R.P.(MD)NO. /2023
Seethalakshmi
W/o Murugiah,
Door No.69, Sevalpatti South Street,
Rajapalayam Taluk,
Virudhunagar District. …. PETITIONER/PETITIONER
--Vs—
Selvarani
W/o Late Chandrasekaran,
Door No.40/46B, Sevalpatti North Street,
Rajapalayam Taluk,
Virudhunagar District. …. RESPONDENT/RESPONDENT
STAY PETITION
For the reasons stated in the accompanying affidavit it is
humbly prayed that this Hon'ble court may be pleased to stay the
operation of decree and judgment dt.10.09.2023 in O.S.No.96/2019
on the file of the Principal Sub Judge, Srivilliputtur, pending disposal
of the CRP Petition and thus render justice.
Dated at Madurai this day of June 2023
COUNSEL FOR PETITIONER
IN THE HIGH COURT OF JUDICATURE AT MADRAS
MADURAI BENCH
C.R.P.(MD)NO. /2023
Seethalakshmi … PETITIONER
----Vs---
Selvarani … RESPONDENT
INDEX
Page
Sl.No Date Description of Document
No.
1. 28.06.2023 Court Fee
2. 28.06.2023 Coding Sheet
3. 28.06.2023 Grounds
4. 28.06.2023 Stay Petition
5. 28.06.2023 Affidavit
6. 31.03.2023 Fair order in I.A.01/2020 in O.S.No.92/2011
7. 31.03.2023 Ex Order in I.A.01/2020 in O.S.No.92/2011
TYPED SET
8. Plaint in O.S.No.92/2011
07.04.2011
9. Written statement in O.S.No.92/2011
01.08.2011
10. 10.09.2019 Judgment in O.S.No.92/2011
11. .01.2020 Petition in I.A.01/2020 in O.S.No.92/2011
12. .05.2020 Counter in I.A.01/2020 in O.S.No.92/2011
13. .01.2020 Petition in I.A.02/2020 in O.S.No.92/2011
14. .05.2020 Counter in I.A.02/2020 in O.S.No.92/2011
15. 31.03.2023 Ex Order in I.A.01/2020 in O.S.No.92/2011
16. 31.03.2023 Ex Order in I.A.02/2020 in O.S.No.92/2011
17. 31.03.2023 Common Fair Order in I.A.01/2020 & I.A.02/2020
18. 28.06.2023 Memorandum of Grounds
19. 28.06.2023 Vakalat
20. 28.06.2023 Batta
This is certified that the above documents are true copies of the original
Dated at Madurai this day of June 2023
COUNSEL FOR THE PETITIONER
MEMORANDUM OF GROUNDS OF CIVIL REVISION PETITION
(Under Article 227 of the Constitution of India)
IN THE HIGH COURT OF JUDICATURE AT MADRAS
MADURAI BENCH
C.R.P.(MD)NO. /2023
Against
I.A.No.2/2020
In
O.S.No:92/2011
(ON THE FILE OF THE PRINCIPAL SUB COURT, SRIVILLIPUTHUR)
Seethalakshmi
W/o Murugiah,
Door No.69, Sevalpatti South Street,
Rajapalayam Taluk,
Virudhunagar District. …. PETITIONER/PETITIONER/DEFENDANT
--Vs—
Selvarani
W/o Late Chandrasekaran,
Door No.40/46B, Sevalpatti North Street,
Rajapalayam Taluk,
Virudhunagar District.…. RESPONDENT/RESPONDENT/PLAINTIFF
The address for service of summons, notices etc to the
petitioner is as stated above and that of his counsels
MR.R.SURIYANARAYANAN, MRS.C.JEYA INDRA PATEL AND M.RAJESH
HAVING OFFICE AT PLOT NO.750, KARPAGA NAGAR, 4TH STREET,
K.PUDUR, MADURAI - 7.
The address for service of notices to the respondent is as
stated above.
..2..
The Civil Revision Petitioner begs to prefer the memorandum
of grounds of revision against the Fair order and Executable order,
dated 31.03.2023, made in I.A.No.2/2020 in O.S.No:92/2011 on the
file of Principal Sub Judge, Srivilliputhur, on the following among
other
GROUNDS
1. The court below ought to have allowed the petition to
condone the delay of 94 days, in filing the petition to set aside the
exparte decree and judgment dated 10.09.2019, and made in
O.S.No.92/2011, as the same is passed without merits, hence the
same is liable to be set aside but dismissed the petition, as it is not
maintainable, as the judgment is not an exparte one, but on merits,
is incorrect and illegal.
2. The court below failed to see that the petitioner’s husband
was examined as D.W1 and his chief examination is over by filing
the proof affidavit and for his cross examination, he was not
available due to the quarrel with the petitioner and went away and
in such a case, the court below ought to have given chance to the
petitioner to examine herself on her side but closed the side of
defendant’s side evidence for the non-appearance of D.W1 and
passed the judgment and decree is nothing but an exparte one and
the same could be set aside by entertaining the petition but
dismissed the same is incorrect.
3. The court below failed to see that as per Order 17 Rule 2 &
3(b) CPC, when the petitioner is absent on the day of hearing then
the court shall pass the exparte judgment but without doing so,
passing the judgment on merits even in the absence of petitioner
and without giving chance to produce her side witnesses is illegal.
4. The court below dismissed the petition on hyper technical
ground without going to the merit of the case for setting aside
exparte judgment, which is occurred due to excess of jurisdiction
and so the interference under Article 227 of Constitution of India is
necessitated.
Therefore it is humbly prayed that this Hon'ble court may be
pleased to call for the records relating with the Executable order and
Fair order, 31.03.2023, made in I.A.No.2/2020 in O.S.No:92/2011 on
the file of Principal Sub Judge, Srivilliputhur, and set aside the same
and thus render justice.
MEMO OF VALUATION
The value of the suit : Rs. /-
Court fee paid thereon Rs.
/-
Value of I.A Rs. Incapable
Court Fee paid Rs.20/-
Value of CRP Rs. Incapable
Court fee paid thereon Rs.500/-
Dated at Madurai this day of June 2023
COUNSEL FOR THE PETITIONER
IN THE HIGH COURT OF JUDICATURE AT MADRAS
MADURAI BENCH
C.R.P.(MD)NO.1713/2023
Seethalakshmi … PETITIONER
----Vs---
Selvarani … RESPONDENT
WRITTEN ARGUMENTS FILED ON BEHALF OF THE PETITIONER
This Civil Revision Petition has been filed challenging the order
of dismissal of a Petition in I.A.No.01/2020 to condone the period of
94 days for setting aside the exparte the Judgment and decree in
O.S.No.92/2011.
The respondent filed a suit for declaration and recovery of
possession against the petitioner in O.S.No.92/2011. In which, the
petitioner filed her written statement and denied all her averments.
In the said suit, after the examination of plaintiff side witness, the
petitioner’s husband was examined as DW1 on 08.03.2019 and
through him Ex.B1 to Ex.B4 is marked. Then it is posted for cross
examination on the side of plaintiff. But due to misunderstanding
between the petitioner and her husband, he deserted her and has
not been turned up for cross examination. Hence the defendant side
evidence is closed by the trial court and the case is posted on
05.09.2019 for arguments and then the Judgment is passed on
10.09.2019. Then the petitioner knew the exparte decree and filed
the petition with delay excuse petition.
The trial court rejected the petitioner’s petition on the ground
of maintainability as the Judgement and decree dated 10.09.2019 is
on merits and not an exparte one. Hence this CRP is filed invoking
Article 227 of the Constitution of India.
The trial court failed to see that as under O.17 R 3 CPC,
“Where any party to a suit to whom time has been granted fails to
produce his evidence or cause attendance of his witness or to
perform any other act necessary act for the further process of the
suit for which time has been allowed. Then the Court may not
withstanding such default
a) If the parties are present proceed to decide the suit forthwith or
b) If the parties or any of them is absent proceed under O17 R2 CPC
In this case admittedly the petitioner who is the defendant in the
suit has not appeared on the date fixed by the Court. Hence the trial
Court necessarily proceeded the suit as under O17 R2.
As per O17 R2 CPC, if any party failed to appear the court may
proceed to dispose the suit in one of the modes under Order 9. It
contains explanation and as per the same, where a substantial part
of evidence of any party has already been recorded and such party
fails to appear on any date to which the hearing of the suit is
adjourned then the Court may in its discretion proceed the suit as if
such party where present.
In this case admittedly there is no substantial evidence produced by
the defendant as her husband though has been examined as DW1
he has not turned up for cross examination and hence his evidence
should be eschewed and in such a situation it deems there is no
substantial part of evidence on the part of the defendant to enable
the trial Court to pass a decree on merits. Hence the said Judgement
is only an exparte Judgment and not on merits. Further the bare
perusal of Judgment would clearly show that though petitioner’s
husband is shown as DW1 and documents Ex.B1 To Ex.B4 are
marked and the same was not considered by trial Court as evidence
of DW1 as it is eschewed for want of cross examination. The
Evidence of DW1 without cross-examining him shall not remain on
record as per the order of this Hon’ble Court in
C.R.P(MD).No.1132/2017 reported in MANU/TN/3189/2010. So the
evidence of DW1 cannot be taken as substantial evidence as
stipulated under O17 R 2 CPC so as to proceed the case of merits.
In a similar Case the Hon’ble Supreme Court of India in AIR
1987 SC 42 clearly hold that when the defendant remaining absent
and for him no evidence has been examined and O 17 R2 and not
O17 R 3 applies and Court can proceed exparte as under O9 and
subsequently can file a petition under O9 R13 CPC for setting aside
the Exparte Judgement and Decree.
Hence the CRP may be allowed.
COUNSEL FOR THE PETITIONER
