BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 23/01/2008 CORAM THE HONOURABLE MR.JUSTICE G.RAJASURIA C.M.A.(MD)No.1288 of 2007 Ayyanaal Ammal (Died) 1.Kamatchi Gounder 2.Selvi 3.Palaniammal 4.Saroja 5.Meenakshi 6.Suthanthira Devi .. Appellants Vs A.Thangasamy .. Respondent Prayer Appeal filed under Section 106 and Order 43, Rule 1(t) of C.P.C., against the fair and decreetal order dated 17.04.2006 passed in unnumbered application in I.A.S.R.No.11986 of 2006 in A.S.No.9 of 2006 by the learned First Additional Subordinate Judge, Madurai. !For Appellants ... Mr.T.R.Jeyapalan ^For Respondent ... Mr.V.Sitharanjandas :JUDGMENT
This appeal is focussed as against the fair and decreetal order dated
17.04.2006 passed in unnumbered application in I.A.S.R.No.11986 of 2006 in
A.S.No.9 of 2006 by the learned First Additional Subordinate Judge, Madurai.
2. Heard both sides.
3. A re’sume’ of facts absolutely necessary and germane for the disposal
of this Civil Miscellaneous Appeal would run thus:
A.S.No.9 of 2006 was filed by the unsuccessful plaintiff before the First
Additional Sub Court, Madurai. It so happened that for the non-appearance of
the respondent therein, the appellant was heard and Judgment was passed.
Subsequently application in I.A.S.R.No.11986 of 2006 was filed by the respondent
viz., Ayyanaal Ammal, for getting set aside such ex-parte Judgment of the
appellate Court. The appellate Court did not number that I.A., nevertheless
gave a finding to the effect that the order passed by the appellate Court was
not an ex-parte one.
4. The point for consideration is as to whether the order of the appellate
Court in not even numbering the I.A. and rejecting it at the threshold itself is
tenable under the law?
5.On point:
Heard both sides.
6. I would like to extract here under the paragraph No.2 of the order of
the appellate Court.
“Records perused. The respondent was not set as exparte. On perusal of
records and after perusing the written arguments of respondent filed in lower
court, appeal judgment was pronounced on 10.3.2006 on merits. Order 41 Rule 21
relates to re-hearing on application of respondent against whom exparte decree
made. It is not the case that no notice was served to him. With regard to his
ailment no record is filed. Hence, petition is rejected”.
7. Ex facie and prima face that order is an erroneous one. Both sides in
unison would submit that only on the non-appearance of the respondent in the
appeal before the appellate Court, such Judgment was passed after hearing only
the appellant’s counsel. It is a trite proposition of law that if any appeal is
disposed of on hearing only the appellant’s counsel, it should be construed only
as an ex-parte Judgment. But unfortunately the learned First Additional
Subordinate Judge, Madurai without understanding the distinction between an ex-
parte Judgment passed on merits and a Judgment passed after hearing both sides
rejected the I.A. Simply because the appellate Court passed an elaborate
Judgment after hearing the appellant, it cannot be termed as a Judgment, which
is not an ex-parte one. Hence, in this view of the matter, the fair and
decreetal order dated 17.04.2006 in unnumbered application in I.A.S.R.No.11986
of 2006 in A.S.No.9 of 2006 on the file of the learned First Additional
Subordinate Judge, Madurai is liable to be set aside and the learned First
Additional Subordinate Judge, Madurai is directed to number that I.A. and after
giving notice to the other side, shall process it as per law and dispose it
within a period of two months from the date of receipt of a copy of this order.
8. The learned counsel for the respondent would narrate in detail as to
how the respondent herein was made to suffer because of the delay caused by the
appellants, who happened to be the legal heirs of the deceased original
respondent/ defendant before the appellate Court. Hence, I am of the considered
opinion that at least a sum of Rs.1000/- (Rupees one thousand only) should be
awarded as cost payable by the appellants herein in favour of the respondent
within a period of one week from the date of receipt of a copy of this order as
a sine quo non for reaping the the fruit of this order.
9. Immediately the cost was paid by the learned counsel for the appellants,
and it was received by the learned counsel for the respondent.
10. As such, the Civil Miscellaneous Appeal is allowed and the fair order
and decreetal order dated 17.04.2006 passed in unnumbered application in
I.A.S.R.No.11986 of 2006 in A.S.No.9 of 2006 on the file of the learned First
Additional Subordinate Judge, Madurai is set aside.
smn
To
The First Additional Subordinate Judge,
Madurai.