In the High Court of Judicature at Madras Dated: 2 - 9 - 2008 Coram: The Honourable Mr.Justice S.J.Mukhopadhaya and The Honourable Mr.Justice M.Venugopal Original Side Appeal Nos.236 to 238 of 2006 & M.P.No.1 of 2006 in O.S.A.No.236 of 2006 Shanthilal Kothari .. Appellant in all the O.S.As. vs. 1. Sathrasala Sarath Bau 2. Justice S.Mohan 3. M.Selvi 4. S.J.Kalyani Mammidi 5. S.R.Harikrishnan 6. C.Venkatesan 7. Mahabir Chand Jain .. Respondents in all the O.S.As.
Original Side Appeal No.236 of 2006 against the fair and decretal order of the single Judge of this Court, dated 3.7.2006 in Application No.3126 of 2006 in Civil Suit No.770 of 1997.
Original Side Appeal No.237 of 2006 against the judgment and decree of the single Judge of this Court, dated 6.7.2006 in Civil Suit No.770 of 1997.
Original Side Appeal No.236 of 2006 against the fair and decretal order of the single Judge of this Court, dated 3.7.2006 in Application No.3381 of 2006 in Civil Suit No.770 of 1997.
For appellant : Mr.N.R.Chandran, Senior Counsel for
M/s.Surana and Surana
For respondent-1 : Mr.Arvind P.Datar, Senior Counsel for
M/s.M.Govindaraj
Common Judgment
S.J.Mukhopadhaya,J
As all these Original Side Appeals (for short, ‘the OSAs’) have been preferred by the same appellant, and arising out the same suit and the applications thereto, they were heard together and disposed of by this common judgment.
2. The appellant-Shanthilal Kothari, was the first defendant in Civil Suit No.770 of 1997 and the first respondent–Sathrasala Sarath Babu is the plaintiff in the said Civil Suit.
3. The parties are hereinafter referred as the plaintiff and the first defendant.
4. Civil Suit No.770 of 1996 was before this Court by the plaintiff for the following relief:
(i) for a declaration that the plaintiff continues to be the owner of the property set out in the schedule ‘A’ of the plaint and consequently direct the first defendant to put the plaintiff in possession of the said property;
(ii) for a permanent injunction restraining the defendants, their agents or servants or any one of them from in any manner dealing with the property described in Schedule A to the plaint including the demolition and reconstruction of the said property;
(iii) for a direction to the first defendant to pay a sum of Rs.15 lakhs as damages to the plaintiff together with interest @ 12% per annum from the date of the plaint to the date of payment;
(iv) for direction to the third defendant to render a true and proper account of all monies drawn by her and her nominees from the Bank Account No.15063 of the plaintiff of Lakshmi Vilas Bank, Sowcarpet Branch, Chennai and to pay the balance to the plaintiff with interest at 12% p.a. from the date of the plaint to the date of payment.
(v) for a direction to the third defendant to return the articles set out in Schedule B to the plaint, to the plaintiff, or in the alternative, direct the third defendant to pay a sum of Rs.1 lakh to the plaintiff together with interest at 12% per annum from the date of the plaint till the date of payment;
(vi) for costs of the suit and
(vii) such other relief this Court may deem fit and proper in the interest of justice and thereby render justice.
5. In the said Civil Suit (hereinafter referred to as ‘the suit’), the first defendant failed to file any written statement. A petition for condonation of delay of 3,729 days (more than ten years) in filing the written statement, was filed in Application No.3381 of 2006 in C.S.No.770 of 1997 ; in the absence of any valid ground, by the impugned order dated 3.7.2006, the said A.No.3381 of 2006 was rejected by the learned single Judge, against which the first defendant preferred O.S.A.No.238 of 2006.
6. It is seen that an ex-parte order was passed against the first defendant on 19.4.2006. The first defendant filed an application in Application No.3126 of 2006 in C.S.No.770 of 1997, to set aside the ex-parte order dated 19.4.2006 passed against him, which was also rejected by the impugned order dated 3.7.2006, against which, the first defendant preferred O.S.A.No.236 of 2006.
7. By the impugned judgment and decree dated 6.7.2006, the suit in C.S.No.770 of 1997 was decreed as prayed for, with costs, against which, the first defendant preferred O.S.A.No.237 of 2006.
8. The case of the first defendant is as follows:
(a) The plaintiff-Sathrasala Venkatram, was the owner of the land and building in Door No.140, Govindappa Naicken Street, Chennai. The first defendant-Shantilal Kothari, was the tenant under the plaintiff, in the said property and he agreed (lease agreement) on 2.10.1996 that he would undertake the re-construction of the building with a permission to sub-let the same and shall pay the enhanced rent of Rs.15,000/- p.m. for two years and thereafter, Rs.45,000/- p.m., besides depositing Rs.5 lakhs as security. The said lease agreement was sent to the Income Tax Department for necessary approval, on which, on 5.12.1996, the Income Tax Department gave their No Objection/Clearance Certificate, for execution of the lease deed.
(b) On 2.1.1997, a registered lease deed was executed in terms of the earlier agreement dated 2.10.1996.
(c) The further case of the first defendant was that the then plaintiff was a widower and was living alone and had no issue. It is the case of the first defendant that the then plaintiff developed misunderstanding with his brother’s son due to dispute regarding the property(ies) and had no connection with them. The then plaintiff was looked after by a maid-servant.
(d) After the execution of the registered lease deed, the then plaintiff created a registered Trust on 24.3.1997, in and by which, the then plaintiff divested the suit properties in favour of the said Trust. The then plaintiff also directed that the rent payable by the first defendant would be deposited with the Trust. Further direction was given by the then plaintiff in regard to the appropriation of the amount(s) deposited in the Trust. A trust deed was registered and the Registrar came to the house and the Registrar was present at the time of the registration of the trust deed.
(e) The first defendant applied for sanction plan for re-construction pursuant to the above said lease deed.
(f) The then plaintiff was residing on the back-portion of the suit properties. When the demolition and re-construction commenced, the then plaintiff left the premises and was residing with his brother’s son, namely Sugunakar. After joining with his brother’s son, the then plaintiff filed the suit (C.S.No.770 of 1997) in December 1997.
(g) It is the further case of the first defendant that the deceased-the then plaintiff, executed a Will on 5.12.1997, appointing the substituted plaintiff, namely Sathrasala Sharath Babu (the first respondent in these OSAs) and three others as executors for carrying out the charitable objects.
9. The then plaintiff died on 21.1.1998 and the suit (C.S.No.770 of 1997) was contested by the first defendant with interim application(s) filed during 1998. The substituted plaintiff (the first respondent in these OSAs) continued to contest the suit.
10. Summons were served on the first defendant and the suit was posted before Court on 19.4.2006 under the caption “for undefended board”. According to the first defendant, time was sought for, for filing written statement, but the Court had passed an order, setting the first defendant ex-parte on the ground that he was called, but absent. The Court also recorded the fact that the defendant(s) have not filed written statement.
11. The suit was posted on 26.4.2006 for recording ex-parte evidence. But at the request of the substituted plaintiff, it was posted after summer vacation.
12. In the meanwhile, the first defendant filed two applications, namely:
(i) Application in A.No.3126 of 2006 in C.S.No.770 of 1997, to set aside the ex-parte order passed against the first defendant on 19.4.2006 and
(ii) Application in A.No.3381 of 2006 in C.S.No.770 of 1997, to condone the delay of 3,729 days in filing the written statement.
Both A.Nos.3126 and 3381 of 2006 were dismissed by the learned single Judge on 3.7.2006.
The suit was posted for recording ex-parte evidence on 4.7.2006.
13. On 4.7.2006, when the suit was listed under the caption “for ex-parte evidence”, the learned single Judge recorded the evidence of P.W.1. On 6.7.2006, the lease deed and the trust deed were marked as exhibits and the suit was ultimately decreed as prayed for, with costs, by the learned single Judge.
In the above said background, the first defendant filed the above three O.S.As.
14. Learned Senior Counsel appearing for the first defendant submitted that the summons were served on the first defendant on 27.1.1998. Though the written statement was not filed within time, the suit was not immediately posted for “undefended board” or before the learned Master of this Court. It was posted by the Registry directly before the learned single Judge on 19.4.2006 when the learned single Judge set all the defendants ex-parte for not having filed the written statement(s).
15. According to the learned Senior Counsel appearing for the appellant-first defendant, under Order VI of the Rules of the High Court of Madras Original Side Rules (for short, ‘the O.S. Rules’), the prescribed procedure is that when the suit was required to be listed under the caption “for undefended board” for not filing filing of the written statement in time, as per the O.S. Rules, even thereafter, if the written statement was not filed, the case (suit) can be heard and disposed of ex-parte, but the defendant(s) may be allowed to cross-examine the witness(es) on the side of the plaintiff and to address the Court, unless directed by the Court, the evidence shall not be received on behalf of the defendant(s). It was also submitted that in view of Order VI of the O.S. Rules, the learned single Judge ought not to have set aside the defendant(s) ex-parte.
16. It is the further contention of the learned Senior Counsel appearing for the appellant-first defendant that the order setting the defendant(s) ex-parte under Order IX Rules 6 and 7 of the Code of Civil Procedure (for short, ‘the CPC’), it prohibits a person set aside ex-parte on being heard in answer to the suit.
17. It is further submitted by learned Senior Counsel appearing for the first defendant that under Order IX Rule 6(1)(a) of the CPC before the amendment by Act 104 of 1976, if the summons have been duly served and if it is proved that the summons have been so served, the Court may proceed ex-parte. Therefore, the situation before the amendment of Order IX Rule 6(1)(a) of the CPC is similar to Order VI Rule 2 of the O.S. Rules, enabling the Court to proceed with the hearing and deciding the suit ex-parte.
18. Learned Senior Counsel appearing for the first defendant relies on the decision of the Supreme Court reported in AIR 1955 SC 425 (Sangram Singh vs. Election Tribunal, Kotah)–(Paragraphs 25 and 26 at page 431), wherein Order IX Rule 6(1)(a) of the CPC has been explained by the Apex Court. In the said case, the Supreme Court observed that the laws of procedure are based on the principle that, as far as possible, no proceeding in a Court of law should be conducted to the detriment of a person in his absence and however, there are of course, exceptions; when the defendant has been served and has been afforded an opportunity of appearing, then, if he does not appear, the Court may proceed in his absence, but the Court is not directed to make an ex-parte order.
19. Learned Senior Counsel appearing for the first defendant (appellant herein) submitted that in terms of Order VI Rule 2 of the O.S. Rules, the learned single Judge, instead of setting the defendant(s) ex-parte, should have proceeded with the hearing of the suit, by allowing the defendant(s) to participate during the course of the hearing of the suit and not to shut the door(s). Learned Senior Counsel for the first defendant alleged that in the present case, the learned single Judge has not followed the principle(s) and procedure(s) contemplated under Order VI Rule 2 of the O.S. Rules and passed an order, setting the defendant(s) ex-parte, on the ground that the written statement has not been filed. Order IX Rule 6 of the CPC has since been amended, enabling the Courts to pass ex-parte order, and the case can be looked into from different aspect(s). After the amendment of the CPC, the Court cannot make an order, setting the defendant(s) ex-parte, whereas before the amendment of the CPC, the Court can only proceed ex-parte.
20. Learned Senior Counsel appearing for the first defendant further submitted that the procedure(s) in the suit(s) before this Court, are governed by the O.S. Rules. He relied on the decision of the Supreme Court reported in 2005 (2) SCC 145 (Iridium India Telecom Ltd. vs. Motorola Inc.), wherein the Apex Court relied on its Constitution Bench decision reported in 2004 (11) SCC 672 = JT (2004) (8) SC 464 (P.S.Sathappan vs. Andhra Bank Ltd.), wherein, in para 32 (SCC p.709), the Constitution Bench held as follows:
“32. It was next submitted that clause 44 of the Letters Patent showed that Letters Patent were subject to amendment and alteration. It was submitted that this showed that a Letters Patent was a subordinate or subservient piece of law. Undoubtedly, clause 44 permits amendment or alteration of Letters Patent, but then which legislation is not subject to amendment or alteration? CPC is also subject to amendments and alterations. In fact it has been amended on a number of occasions. The only unalterable provisions are the basic structure of our Constitution. Merely because there is a provision for amendment does not mean that, in the absence of an amendment or a contrary provision, the Letters Patent is to be ignored. To submit that a Letters Patent is a subordinate piece of legislation is to not understand the true nature of a Letters Patent. As has been held in Vinita Khanolkar case (Vinita M.Khanolkar vs. Pragna M.Pai (1998 (1) SCC 500 : JT (1997) (9) SC 490) ) and Sharda Devi case (Sharda Devi vs. State of Bihar (2002 (3) SCC 705 : JT (2002) (3) SC 43) ) a Letters Patent is the charter of the High Court. As held in Shah Babulal Khimji case (Shal Babulal Khimji vs. Jayaben D.Kania (1981 (4) SCC 8 : (1982) (1) SCR 187 ) a Letters Patent is the specific law under which a High Court derives its powers. It is not any subordinate piece of legislation. As set out in the aforementioned two cases a Letters Patent cannot be excluded by implication. Further it is settled law that between a special law and a general law the special law will always prevail. A Letters Patent is a special law for the High Court concerned. The Civil Procedure Code is a general law applicable to all courts. It is well-settled law, that in the event of a conflict between a special law and a general law, the special law must always prevail. We see no conflict between the Letters Patent and Section 104 but if there was any conflict between a Letters Patent and the Civil Procedure Code then the provisions of the Letters Patent would always prevail unless there was a specific exclusion. This is also clear from Section 4 of the Civil Procedure Code which provides that nothing in the Code shall limit or affect any special law. As set out in Section 4 CPC only a specific provision to the contrary can exclude the special law. The specific provision would be a provision like Section 100-A.”
21. According to the learned Senior Counsel appearing for the appellant-first defendant, the learned single Judge has deprived the first defendant from defending the suit. Even on merits, an ex-parte decree passed is contrary to law. The learned single Judge failed to notice that the first defendant was the tenant under the then plaintiff, before the lease deed, which was executed on 22.1.1997 and even after execution of the registered lease deed, the first defendant continued to be the tenant paying rent(s) at the enhanced rate(s). Therefore, the first defendant is entitled to the protection under the Tamil Nadu Buildings (Lease and Rent Control) Act and cannot be evicted by an order/judgment/decree of a Civil Court.
22. Further, according to the learned Senior Counsel appearing for the appellant-first defendant, the learned single Judge proceeded on a wrong assumption that the then plaintiff field the suit only to cancel the trust deed, and as there was no prayer made for cancellation of the lease deed and trust deed, it cannot be entertained without paying proper Court Fee on the market value of the suit properties under Section 40 of the Court Fees Act. The learned single Judge acted on the ex-parte evidence of P.W.1 (the substituted plaintiff), who was admittedly, not the original plaintiff by whom the lease deed and trust deed were executed and the substituted plaintiff (the first respondent in these OSAs) had no definite knowledge of the execution of those deeds.
23. Learned Senior Counsel appearing on behalf of the substituted plaintiff (the first respondent in these OSAs) submitted that even after service of notice, the first defendant (the appellant in these OSAs), though appeared, but did not choose to file the written statement, his counsel failed to appear before the Court when the suit was posted before the Court under the caption “for undefended board”. Even when the suit was posted for recording the ex-parte evidence, neither the first defendant nor his counsel, was present. The evidence on the side of the substituted plaintiff was taken by the Court and the first defendant did not choose to cross-examine the witness(es) on the side of the substituted plaintiff. Therefore, in the absence of participation by the first defendant before the trial Court, the suit was decreed ex-parte, taking into consideration the pleadings, the exhibits on record and the evidence of the witness(es). It was alleged that the first defendant had every reason to prolong the matter for he gets several Lakhs of Rupees by way of rent(s) from the suit property(ies) of the substituted plaintiff and enormous money to the goodwill and the rental advance. The first defendant does not want to part away with the property(ies) in question and attempted to prolong the suit only with an ulterior motive, which is still there.
24. We have heard the learned Senior Counsel(s) appearing for the first defendant (appellant in these OSAs) and the substituted plaintiff (first respondent in these OSAs) and notice their rival contentions.
25. It is not in dispute that the suit was filed on 24.12.1997 and an order of injunction was granted to restrain the first defendant from demolishing and putting up further construction. It appears that the first defendant filed ‘vakalat’ in January 1998 and the vacate-injunction petition on 19.1.1998. The first defendant also filed an affidavit on 3.3.1998 to modify the order of interim injunction. He also contested on the report filed by the Advocate Commissioner, the Contempt Application filed in the very same suit and was contesting all the other application(s)/petition(s). Therefore, it is clear that the first defendant appeared from the very beginning, during the life-time of the then plaintiff (original plaintiff). On 21.10.1998, the original plaintiff died and on 27.1.1998, the suit summons were served on the first defendant. In spite of the same, he failed to file the written statement on or before 15.2.1998, though the pendency of the suit was to his knowledge and he was contesting all the other application(s)/petition(s).
26. Even none of the other defendant(s) filed the written statement. It is also not in dispute that the written statement was not filed even after 3,729 days (more than ten years) after the filing of the suit, but no specific ground has been shown except that the first defendant misplaced the summons.
27. It is not the case of the first defendant that he misplaced the suit-plaint or was ignorant of law. He was not precluded from filing the written statement, on account of the illness or due to unavoidable circumstances and in fact, no specific reason has been shown in the affidavit filed in support of the application to condone the delay of 3,729 days (more than ten years) in filing the written statement and the other connected application seeking to set aside the ex-parte order.
28. In the above background, the learned single Judge, having refused to condone the delay of 3,729 days (more than ten yeas) in filing the written statement/to set aside the ex-parte order, no interference is called for on the same, there being no valid ground shown to differ from the finding(s) rendered by the learned single Judge.
29. From the records, it would be further evident that both the first defendant and his counsel, failed to appear before the Court when the suit was posted before the Court under the caption “for undefended board”. Even when the suit was posted for recording the ex-parte evidence, neither the defendant(s) nor his/their counsel, appeared. The evidence on the side of the substituted plaintiff was taken by the Court, but the first defendant did not choose to cross-examine the witness(es) on the side of the substituted plaintiff. Therefore, it is neither the case of the first defendant that he wanted to cross-examine the witness(es) on the side of the substituted plaintiff, or filed any application/petition before the Court to cross-examine the witness(es) on the side of the plaintiff(s). Thereby, the first defendant cannot take a plea that he was prohibited from cross-examining the witness(es) on the side of the plaintiff(s)/from examining the witness(es)/taking part in the proceedings of the Court during the course of the hearing of the suit.
30. If a party to a suit did not choose to contest the suit and failed to appear either in person before the Court or through his counsel, during the course of examination of the witness(es) or during the course of the hearing of the suit, and if a party (first defendant in these OSAs) did not choose to file any petition/application/affidavit, stating that he intends to examine any witness(es), or show his intention to cross-examine the plaintiff’s witnesses(s), such a party cannot challenge the impugned judgment and decree/order on the ground that he was set ex-parte by the Court.
31. In view of the aforesaid observations/reasons, these OSAs are dismissed being devoid of merits. The Miscellaneous Petition is closed.
32. In the facts and circumstances of the case, there shall be no order as to costs.
(S.J.M.J) (M.V.J)
Index: Yes 2 - 9 - 2008
Internet: Yes
cs
To
Sub-Assistant Registrar,
Original Side, High Court,
Madras.
S.J.Mukhopadhaya,J
and
M.Venugopal,J
cs
Judgment in
O.S.A.Nos.236 to 238 of 2006
2 - 9 - 2008