{"id":226869,"date":"2003-02-21T00:00:00","date_gmt":"2003-02-20T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/d-devendran-vs-nachimuthu-gounder-on-21-february-2003"},"modified":"2017-04-08T14:19:57","modified_gmt":"2017-04-08T08:49:57","slug":"d-devendran-vs-nachimuthu-gounder-on-21-february-2003","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/d-devendran-vs-nachimuthu-gounder-on-21-february-2003","title":{"rendered":"D.Devendran vs Nachimuthu Gounder on 21 February, 2003"},"content":{"rendered":"<div class=\"docsource_main\">Madras High Court<\/div>\n<div class=\"doc_title\">D.Devendran vs Nachimuthu Gounder on 21 February, 2003<\/div>\n<pre>       \n\n  \n\n  \n\n \n \n IN THE HIGH COURT OF JUDICATURE AT MADRAS\n\nDATED: 21\/02\/2003\n\nCORAM\n\nTHE HONOURABLE MR.JUSTICE M.KARPAGAVINAYAGAM\n\nC.R.P.PD.No.101 OF 2002 AND C.R.P.PD.NO.102 OF 2002\n\nD.Devendran                    ...             Petitioner\n\n-Vs-\n\n1.Nachimuthu Gounder\n2.Pappathi\n3.Jothi                         ...             Respondents\n\n  (Respondents 2 and 3 are given up\n   as unnecessary parties)\n\n\n\n                Revisions against the orders dated 08.10.2001  and  30.10.2001\nmade in I.A.No.789 of 2001 in O.S.No.350 of 1982 and Copy Application No.19 71\nof  2001  in  O.S.No.350  of  1982  respectively  on the file of the Principal\nDistrict Munsif's Court, Bhavani.\n\n!For petitioner :  Mr.T.Muruga Manickam\n\n^For 1st respondent :  Mr.A.K.Kumarasamy\n\n:O R D E R\n<\/pre>\n<p>                Petitioner is the fourth defendant in the suit  in  O.S.No.350<br \/>\nof  198  2, filed by the respondent for recovery of money, due on a promissory<br \/>\nnote.\n<\/p>\n<p>                2.  Earlier, the said suit was  dismissed  for  default.    On<br \/>\nhearing  the  news  that the said suit was restored and also an exparte decree<br \/>\nwas passed without his knowledge, the petitioner filed two  applications,  one<br \/>\nfor  seeking  permission  to search for the records relating to the above suit<br \/>\nand the other for certified copies of &#8216;B&#8217; Diary extract, relating to the suit.<br \/>\nThe application for search memo was dismissed on the ground that there was  no<br \/>\nurgency and the application for grant of certified copies of &#8216;B&#8217; Diary extract<br \/>\nwas  dismissed  on  the  ground that the said diary extract was a confidential<br \/>\nmatter and therefore, the same could not be granted.    It  is  against  these<br \/>\norders,  the  petitioner\/fourth  defendant  has  filed  these  Civil  Revision<br \/>\nPetitions.\n<\/p>\n<p>                3.  The facts in brief are as follows :\n<\/p>\n<p>                The suit  for  recovery  of  money  was  filed  by  Nachimuthu<br \/>\nGounder\/  respondent  herein  against the petitioner&#8217;s father in O.S.No.350 of<br \/>\n1982, due on a promissory note.  Pending the  suit,  the  petitioner&#8217;s  father<br \/>\ndied.  So, the petitioner, his mother Papathy and sister Jothi were brought on<br \/>\nrecord as  legal  representatives.    A written statement was filed and issues<br \/>\nwere framed.\n<\/p>\n<p>                4.   On  18.08.1988,  the  plaintiff&#8217;s  counsel  reported   no<br \/>\ninstructions.  Hence,  the  suit  was  dismissed  for  default.  A petition in<br \/>\nI.A.No.14 19 of 1988 was filed under  Section  5  of  the  Limitation  Act  to<br \/>\ncondone the  delay  in presenting the petition to restore the suit.  The delay<br \/>\nwas condoned on condition that the plaintiff should pay costs of  Rs.150\/-  on<br \/>\nor before  07.03.1989.    However, the conditional order was not complied with<br \/>\nand therefore, the  application  in  I.A.No.1419  of  1988  was  dismissed  on<br \/>\n07.03.1989.\n<\/p>\n<p>                5.   On  10.09.1998,  an application in I.A.No.525 of 1999 was<br \/>\nfiled to condone the delay of 10 years and 23 days in filing the  petition  to<br \/>\nrestore the  suit.    Another  application  in I.A.No.526 of 1999 was filed to<br \/>\nrestore the suit, which was dismissed for default on 18.08.1988.\n<\/p>\n<p>                6.  The previous counsel for the  defendant  represented  that<br \/>\nsince  the  petition  was  coming after 10 years, notice should be sent to the<br \/>\nparties.  Accordingly, notice was sent to the defendants.  On the instructions<br \/>\nof the petitioner\/fourth defendant, counsel Mr.A.M.Meeran Sahib filed vakalat.<br \/>\nOn 10.09.1999, a counter was filed on behalf of the defendants,  opposing  the<br \/>\napplication to condone the delay for restoration of the suit.  Strangely, when<br \/>\nthe  matter  came  up  before  the  trial  Court on 28.02.2001, Mr.A.M.Meeran,<br \/>\ncounsel for the defendant, made an endorsement &#8220;I have no objection  to  allow<br \/>\nthis petition&#8221;.    On  the same day, the application was allowed merely on the<br \/>\nsaid endorsement.  Then, the matter was adjourned  to  08.03.2001  for  filing<br \/>\nwritten statement.    Again,  it  was  adjourned  for  written  statement from<br \/>\n08.03.2001 to 15.03.2001.  On 15.03.2001, written  statement  was  not  filed.<br \/>\nTherefore,  the  trial Court set the de fendants exparte and posted the matter<br \/>\nfor evidence on behalf of the plaintiff on 28.03.2001.  When  the  matter  was<br \/>\ntaken up on 28.03.2001, the trial Court, on perusal of records, found that the<br \/>\nwritten statement was already filed and thereafter, issues were also framed as<br \/>\nearly as  on  20.11.1987 itself.  Then, the trial Court suo motu set aside the<br \/>\nexparte decree; reopened the case and took up the case for trial on  the  same<br \/>\nday.  P.W.1,  son  of  the plaintiff, was examined and Ex.A-1 was marked.  The<br \/>\ntrial Court posted the matter for judgment  on  09.04.2001.    On  09.04.2001,<br \/>\njudgment was pronounced, directing the defendants to pay a sum of Rs.12,000 \/-<br \/>\nto the plaintiff within two months and in default, to pay a sum of Rs.14,000\/-<br \/>\nin three  months.  These developments were not at all known to the defendants.<br \/>\nBut, when the plaintiff spread a rumour in the  village  that  he  had  got  a<br \/>\ndecree  against the defendants, the petitioner\/fourth defendant approached the<br \/>\nCourt through some other counsel and filed two applications,  one  for  search<br \/>\nmemo  and  the other for certified copy of &#8216;B&#8217; Diary extract, in order to know<br \/>\nthe real situation.    Those  two  applications  were  dismissed  through  two<br \/>\nseparate  orders,  on the ground that there was no urgency for search memo and<br \/>\n&#8216;B&#8217; Diary extract could not be given as it was confidential.  Challenging  the<br \/>\nsame, these Civil Revision Petitions have been filed.\n<\/p>\n<p>                7.   Learned counsel for the petitioner, through the affidavit<br \/>\nsworn to by the petitioner\/fourth defendant, would emphatically state that the<br \/>\ndefendants had never given instructions to the counsel A.M.  Meeran to say &#8216;no<br \/>\nobjection&#8217;  for  condoning  delay  application  in  I.A.No.525  of  1999   and<br \/>\nrestoration  application  in  I.A.No.526 of 1999 and as such, a fraud had been<br \/>\ncommitted by him.\n<\/p>\n<p>                8.  On the basis of the affidavit, this Court called  for  the<br \/>\nrecords.   On  a  perusal of the records, it is clear that the trial Court had<br \/>\nhurriedly passed an order of  decree  in  favour  of  the  plaintiff,  without<br \/>\nfollowing the  procedural  law.   It is noticed that the suit was filed in the<br \/>\nyear 1982 by the plaintiff against the defendant&#8217;s father.  After  his  death,<br \/>\nthe  petitioner,  his  mother  and  sister  were  brought  on  record as legal<br \/>\nrepresentatives.  The written statement was filed in time and issues were also<br \/>\nframed on 20.11 .1987.  When the matter came up  for  trial,  the  plaintiff&#8217;s<br \/>\ncounsel reported  no  instructions  on  18.08.1988.    Therefore, the suit was<br \/>\ndismissed for default.  Thereafter, an application was filed in I.A.No.1419 of<br \/>\n1988 to condone the delay of 8 days in presenting the petition to restore  the<br \/>\nsuit.  After hearing the counsel for the parties, this application was ordered<br \/>\non  condition  that  the  plaintiff  should pay costs of Rs.150\/- on or before<br \/>\n07.03.1989.  Admittedly, the  said  costs  were  not  paid.    Therefore,  the<br \/>\napplication  in  I.A.No.1419  of  1988  to  condone  the  delay was ultimately<br \/>\ndismissed on 07.03.1989.  The plaintiff thereupon kept  quiet  all  along  and<br \/>\nafter 10  years,  he  filed  two  applications, one in I.A.  No.525 of 1999 to<br \/>\ncondone the delay of 10 years and 23 days in filing the  petition  to  restore<br \/>\nthe  suit,  which  was  dismissed  for default on 1 8.08.1988 and the other in<br \/>\nI.A.No.526 of 1999 for restoration of the suit.  It is not  known  as  to  how<br \/>\nthese  applications  were entertained, even though there was no application to<br \/>\nrestore the petition in I.A.No.1419 of 1988, which was  dismissed  for  non-co<br \/>\nmpliance on  07.03.1989  .   Even in these applications in I.A.Nos.525 of 1999<br \/>\nand 526 of 1999, the defendant instructed the counsel Mr.A.M.Meeran to  oppose<br \/>\nthe same.  Accordingly, a counter affidavit had been filed on 10.09.1999.  The<br \/>\nsame was  pending  for  a  long  time.  Suddenly, without the knowledge of the<br \/>\npetitioner\/defendant, on 28.02.2001, Mr.A.M.Meeran, counsel for the defendant,<br \/>\nmade an endorsement saying  that  he  had  no  objection  for  allowing  these<br \/>\napplications and on the same day, the applications were allowed in view of the<br \/>\nendorsement having been made.\n<\/p>\n<p>                9.   The  trial  Court  did  not  care  to  ascertain with the<br \/>\ndefendant whether such instruction to  say  no  objection  was  given  to  the<br \/>\ncounsel,  especially  when a counter was filed and it was available on record.<br \/>\nFurthermore, the applications in I.A.Nos.525 and 526 of 1999  to  condone  the<br \/>\ndelay  and  for  restoration of the suit cannot be straightaway allowed, since<br \/>\nalready similar application was filed in I.A.No.1419 of 1988 and the same  was<br \/>\ndismissed for  default for not complying with the conditional order.  As such,<br \/>\nit has to be held that the entertainment of the applications  to  condone  the<br \/>\ndelay  and to restore the suit, which was dismissed for default on 18.08.1988,<br \/>\nand ordering the same is ex facie illegal, since it would amount to  bypassing<br \/>\nthe judicial order made in I.A.No.1419 of 1988 on 07.03.1989.\n<\/p>\n<p>                10.   Another  illegality this Court would notice in this case<br \/>\nis that after allowing the applications in I.A.Nos.525 and 526  of  1999,  the<br \/>\ntrial  Court  adjourned  the matter to 08.03.2001 for filing written statement<br \/>\nand again to 15.03.2001 for the same reason.  On 15.03.2001, the  trial  Court<br \/>\nset  the  defendants  exparte  as  they  were  called absent, thinking that no<br \/>\nwritten statement had been  filed  and  posted  the  matter  for  evidence  on<br \/>\n28.03.2001.  As a matter of fact, the written statement had already been filed<br \/>\nand issues  were framed in the year 1987 itself.  Only on 28.03.2001, when the<br \/>\nmatter came up for evidence,  the  trial  Court  found  that  already  written<br \/>\nstatement was  filed and issues were framed.  Immediately on the same day, the<br \/>\ntrial Court suo motu set aside the exparte decree; reopened the case; examined<br \/>\nP.W.1 and recorded his evidence.  Observing that there was no oral evidence on<br \/>\nbehalf of the defendants, the trial Court posted the matter  for  judgment  on<br \/>\n09.04.2001.   In  fact, the records would reveal that P.W.1 was cross-examined<br \/>\nby counsel Mr.A.M.Meeran.\n<\/p>\n<p>                11.  Once the trial Court had thought it fit to set aside  the<br \/>\nexparte  decree,  then, it ought to have adjourned the matter to a future date<br \/>\nfor trial, since the date had not been fixed to enable the parties to  proceed<br \/>\nunder Order 17 Rule 2 CPC.\n<\/p>\n<p>                12.  Admittedly,  P.W.1  is  not the plaintiff.  The defendant<br \/>\nwas not available on that day.  It  is  also  noticed  that  counsel  for  the<br \/>\ndefendant Mr.A.M.Meeran  was  allowed  to  cross-examine  P.W.1.    Strangely,<br \/>\ncross-examination was not done by the counsel in  line  with  the  defendant&#8217;s<br \/>\ncase, as  stated in the written statement.  A perusal of the cross-examination<br \/>\nwould show that it was done as if the defendant admitted the liability and  he<br \/>\nwas ready for submitting to the decree.\n<\/p>\n<p>                13.   The above factors would clearly show that both the trial<br \/>\nCourt Judge and Mr.A.Meeran, counsel for the defendant, had not  followed  the<br \/>\nethics of their respective positions and hurriedly acted in an improper manner<br \/>\nwith anxiety to see that decree was passed in favour of the plaintiff.\n<\/p>\n<p>                14.   The  petitioner  also filed a separate affidavit stating<br \/>\nthat a fraud had been committed on him.  On noticing this, this Court felt  it<br \/>\nnecessary  to  summon  the counsel Mr.A.M.Meeran to know as to what really had<br \/>\nhappened.  Accordingly, notice was issued to him  and  he  came  and  appeared<br \/>\nbefore this  Court.  He filed two affidavits dated 20.1 2.2002 and 27.12.2002,<br \/>\nadmitting   his   mistake   and   requesting   for   unconditional    apology.<br \/>\nMr.A.M.Meeran,  counsel,  also stated that the mistake committed by him was so<br \/>\nserious and he would never commit such a mistake in future and as such, he  is<br \/>\nready to receive any punishment that may be imposed by this Court.\n<\/p>\n<p>                15.   With  reference to the mistakes committed by the counsel<br \/>\nfor the defendant, learned counsel for the petitioner would submit that he  is<br \/>\nnot  interested  in  punishing  the  earlier  counsel  Mr.A.M.Meeran  for  the<br \/>\nmisconduct in his profession, but he is interested only in defending the  main<br \/>\nsuit and as such, he may be given an opportunity to contest the suit.  He also<br \/>\ncited a  decision reported in 1995 (1) LAW WEEKLY 141 (Annapoorni v.  Janaki),<br \/>\nwherein it was held that this Court could  suo  motu  invoke  Section  115  of<br \/>\nC.P.C.   and  Article  227  of the Constitution of India to straight-a-way set<br \/>\naside the decree passed by the trial Court,  which  had  not  been  passed  in<br \/>\naccordance with law.\n<\/p>\n<p>                16.   In 1995 (1) LAW WEEKLY 141 (supra), it was held as under<br \/>\n:\n<\/p>\n<p>                &#8220;When this Court finds that a decree suffers from an error  of<br \/>\nlaw apparent on the face of the record owing to non-application of mind of the<br \/>\nCourt  to  the  relevant  principles of law, this Court cannot keep silent and<br \/>\nallow  the  decree  to  be  in  force,  particularly,  when  it  causes  grave<br \/>\ninjustice.&#8221;\n<\/p>\n<p>                17.   On  going  through  the entire records, inclusive of &#8216;A&#8217;<br \/>\nDiary and &#8216;B&#8217; Diary extracts, it is clear that the trial Court had hastened to<br \/>\npass the decree in favour of the plaintiff,  without  following  the  required<br \/>\nprocedure contemplated  under  the  Code  of Civil Procedure.  Even though the<br \/>\norder passed in I.A.No.1419 of 1988 imposing costs for condoning the delay was<br \/>\nnot complied with, the trial Court, after 10 years, allowed the application to<br \/>\ncondone the delay in filing the application to restore  the  suit,  which  was<br \/>\ndismissed on  18.08.1988.    Similarly,  the  defendants  were  set exparte on<br \/>\n15.03.2001.  When the matter was taken up for exparte evidence on  28.03.2001,<br \/>\nthe  trial  Court  suo motu set aside the exparte decree and reopened the case<br \/>\nand went on trial.\n<\/p>\n<p>                18.  As indicated above, counsel for the defendants  also  did<br \/>\nnot  cross-examine  the witness on the basis of the written statement filed by<br \/>\nthe defendants.  Thus, it is clear that the judgment was pronounced  hurriedly<br \/>\non 09.04.2001  for  the  reasons  best  known to the trial Court.  This biased<br \/>\nconduct, on the part of the Principal  District  Munsif,  Bhavani,  is  highly<br \/>\ncondemnable.    The   misconduct   on   the  part  of  the  erstwhile  counsel<br \/>\nMr.A.M.Meeran, who has  admitted  mistakes  through  his  affidavit,  is  also<br \/>\nunethical and punishable.\n<\/p>\n<p>                19.  Learned counsel for the petitioner requests this Court to<br \/>\ngive  an  opportunity for the petitioner to contest the suit, by setting aside<br \/>\nthe judgment pronounced on 09.04.2001, as the same is illegal.\n<\/p>\n<p>                20.  Learned counsel for the respondent\/plaintiff  also  would<br \/>\nadmit  that  the required procedures have not been followed by the trial Court<br \/>\nand as such, the judgment and decree may be set aside and the  matter  can  be<br \/>\nremanded for trial.\n<\/p>\n<p>                21.   Accordingly,  the  order  in  I.A.No.1419  of 1988 dated<br \/>\n07.03.1989 and the judgment and decree dated 09.04.2001 are set aside and  the<br \/>\nsuit  is  restored and consequently, the matter is remanded to the trial Court<br \/>\nfor fresh disposal.  The trial Court will give  an  opportunity  to  both  the<br \/>\nparties  and  dispose of the suit as expeditiously as possible, without giving<br \/>\nany room for similar complaints from any quarters.\n<\/p>\n<p>                22.  Though this Court  initially  thought  of  referring  the<br \/>\nmatter to the Bar Council with regard to the misconduct of the counsel Mr.A.M.<br \/>\nMeeran,  since  he  realised  his  mistakes  and  also filed affidavit, giving<br \/>\nundertaking that he would not commit such mistakes in future, this Court  felt<br \/>\nthat it  would  be  enough  if  some  costs  is  imposed.  Accordingly, he was<br \/>\ndirected to pay a sum of Rs.2,500\/- as costs to the petitioner.  Now,  it  has<br \/>\nbeen reported before this Court that costs were paid to the petitioner and the<br \/>\nsame were  received  by  the petitioner on 14.01.2003.  To this effect, a memo<br \/>\nhas also been filed by Mr.A.M.  Meeran.\n<\/p>\n<p>                23.   With  the  above  observations,  these  Civil   Revision<br \/>\nPetitions are allowed.  No costs.\n<\/p>\n<p>Index :  Yes<br \/>\nInternet :  Yes<\/p>\n<p>dixit<\/p>\n<p>To :\n<\/p>\n<p>The Principal District Munsif,<br \/>\nBhavani.\n<\/p><\/p>\n","protected":false},"excerpt":{"rendered":"<p>Madras High Court D.Devendran vs Nachimuthu Gounder on 21 February, 2003 IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 21\/02\/2003 CORAM THE HONOURABLE MR.JUSTICE M.KARPAGAVINAYAGAM C.R.P.PD.No.101 OF 2002 AND C.R.P.PD.NO.102 OF 2002 D.Devendran &#8230; Petitioner -Vs- 1.Nachimuthu Gounder 2.Pappathi 3.Jothi &#8230; Respondents (Respondents 2 and 3 are given up as unnecessary parties) Revisions against [&hellip;]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[8,13],"tags":[],"class_list":["post-226869","post","type-post","status-publish","format-standard","hentry","category-high-court","category-madras-high-court"],"yoast_head":"<!-- This site is optimized with the Yoast SEO plugin v27.0 - https:\/\/yoast.com\/product\/yoast-seo-wordpress\/ -->\n<title>D.Devendran vs Nachimuthu Gounder on 21 February, 2003 - Free Judgements of Supreme Court &amp; 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