IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 16/04/2004
CORAM
THE HONOURABLE MR. JUSTICE K.GNANAPRAKASAM
Civil Revision Petition (PD)No.1661 of 2003
and
C.M.P.No.12221 of 2003
1. Yashoda
2. K.Raja
3. K.Jawahar ... Petitioner
-Vs-
1. Perumal
2. Kannammal
3. Parimala
(Respondents 2 and 3 are given up) ... Respondents
Civil Revision Petition filed against the fair and decretal order
dated 18.06.2003 in I.A.No.662 of 2003 in O.S.No.735 of 1990, on the file of
the Principal District Munsif, Salem.
!For petitioners : Mr.D.Shivakumaran
^For Respondents : Ms.P.Veena
for T.R.Rajaram
:O R D E R
This Civil Revision Petition is directed against the order dated
18.06.2003 in I.A.No.662 of 2003 in O.S.No.735 of 1990, on the file of the
Principal District Munsif, Salem.
2. The revision petitioners are defendants 7 to 9 in the suit, which
suit was filed by the respondents 2 and 3 herein for partition. In the said
suit, the first respondent herein, namely, Perumal was the fourth defendant
who remained ex parte. But, however, the first respondent gave evidence on
behalf of the plaintiffs. Thereafter the first defendant/fourth defendant
filed an application under Order 9 Rule 7 under Section 151 CPC, to set aside
the ex parte order dated 12.1 0.1990 and the same came to be allowed.
Aggrieved by the same, the defendants 7 to 9 have preferred this civil
revision petition.
3. The first respondent/fourth defendant in the affidavit filed in
support of the petition, has stated that the defendants 1 to 3 and 5 are his
brothers and 6th defendant is his paternal uncle. The suit was filed by his
sister for partition and allotment of their share in the suit property. He
was set ex parte on 12.10.1990 and he has been under the hope all along, that
his brothers/defendants 2,3 and 5 would help him to get his lawful share also
in the entire suit property. But, it was not done so and only in the said
circumstances, he has filed the application claiming his share, i.e., 8/56th
share and prayed for setting aside the ex parte decree passed against him
dated 12.10.1990.
4. The revision petitioners who are defendants 7 to 9 opposed the
said petition contending that the fourth defendant wantonly and deliberately
refrained from appearing in the suit and he was set ex parte more than 12
years back. According to them, the first respondent/ fourth defendant is only
a collusive party to the plaintiffs and because of that only he was examined
on the side of the plaintiffs as a second witness on 06.01.2003 and he was
also cross examined by the other defendants on 13.01.2003. The first
respondent in support of the case of the plaintiff, gave evidence on behalf of
the plaintiff as P.W.2, it is not now open to him to take a different stand
for which he has filed an application to set aside the order against him and
also to file written statement. The first respondent also filed a written
statement along with the application and it was done only after having given
evidence in support of the plaintiffs and therefore his request to examine
himself as the defendant was opposed by the other defendants, as it would
prejudice their case. But, however the Court below has allowed the said
petition. Aggrieved by the same, defendants 7 to 9 have preferred this Civil
Revision Petition.
5. Heard the learned Advocate for the revision petitioners and the
first respondent. Respondents 2 and 3 were given up.
6. It is the contention of the learned Advocate for the revision
petitioners that the first respondent was made as party defendant only to
support the case of the plaintiffs and only in the said circumstances, he
remained ex parte. That apart, the first respondent/fourth defendant also
gave evidence on behalf of the plaintiffs and it would clearly establish that
the first respondent is only colluding with the plaintiffs and he was made
only as a formal party that too as a defendant in order to support the case of
the plaintiffs. What has been thought of by the revision petitioners has
become true when the first respondent gave evidence in favour of the
plaintiffs. Having given evidence in favour of the plaintiffs, it is not open
to the first respondent to set up a case of his own by filing an application
to set aside the ex parte order passed against him and also filing a statement
and his defence runs contra to the evidence given by him, supporting the case
of the plantiffs.
7. Now the question is when the first respondent was a party
defendant in the suit, remained ex parte but gave evidence on behalf of the
plaintiffs, would he be permitted to set aside the ex parte order passed
against him and also to file written statement and contest the suit, as a
defendant.
8. The parties to a suit are classified as plaintiffs and defendants
and the plaintiffs are the persons who come to the Court making some claim and
it is for the plaintiffs to establish their claim. The defendants are the
persons who resist the claim of the plaintiffs and if they do not have any
right, they may say that they are unnecessary parties to the suit. Therefore,
it is always open to the defendants either to contest or to say that they are
unnecessary parties to the suit or if they agree with the plaintiffs claim,
they can even submit to a decree, if it is otherwise, after completion of the
pleadings, issues could be framed and the suit could be tried.
9. Here a peculiar situation has arisen for consideration wherein,
the fourth defendant remained ex parte but gave evidence on behalf of the
plaintiffs by supporting their case and thereafter filed an application to set
aside the ex parte order passed against him and also to file written statement
( as a matter of fact he filed the written statement) supporting the case of
the plaintiffs which is adverse and prejudicial to the interest of the other
defendants. Now the question is whether such an action taken by the fourth
defendant is permissible.
10. The suit is one for partition. No doubt, it is true that all the
persons who are having interest in a suit for partition, can be transposed as
plaintiffs or defendants. But that is not the situation in our case. The
defendants 7 to 9 are the purchasers of the suit properties who are opposing
the claim of the plaintiffs tooth and nail. The first respondent is the
fourth defendant in the suit and has added as a party, and if he had any
defense in the suit, he should have filed the written statement and opposed
the claim or he could have even remained ex parte or even submitted to the
decree. But the fourth defendant has not done so. On the other hand, the
fourth defendant has crossed the floor, joined with the plaintiffs gave
evidence and was also cross examined and that thereafter finding himself, not
having fit in as he liked, filed the application to set aside the ex parte
order passed against him along with written statement.
11. Usually, an ex parte order when it is not ripen into a decree,
would be set aside for reasonable or on bonafide grounds. In this case also,
ex parte decree order alone was passed against the fourth defendant, as the
suit is pending, it has not ripen into a decree, but that does not mean that
the fourth defendant is always entitled and empowered to file an application
to set aside the ex parte order and take different stand at different time.
If the fourth defendant has not given evidence on behalf of the plaintiffs,
the matter would have been different or if the fourth defendant filed an
application to transpose himself as the plaintiff in that context also, the
matter would have been different. But, here altogether the fourth defendant
had taken a different stand by joining hands with the plaintiffs by giving
evidence in their favour and thereafter taken steps to set aside the ex parte
order. Feeling that his evidence inconvenient to him or it may not be
accepted by the Court as such the same is not supported by any pleadings,
fourth defendant has chosen to file the application to set aside the ex parte
order and the same can neither be accepted nor encouraged.
12. It is settled law, that no amount of evidence is admissible
without pleadings and it may be the reason that the fourth defendant has come
forward at this belated stage to file this application to set aside the ex
parte order and also to file the written statement, virtually he wants to
support his evidence which has also been given without any pleadings. As it
has already been pointed out, if the fourth defendant has not crossed the
floor and given evidence, the situation would have been different. But here
the fourth defendant having figured as a witness on behalf of the plaintiffs,
and the said evidence would naturally be adverse to the case of the defendants
7 to 9, cannot be permitted to file written statement after giving evidence.
If this kind of practice is allowed, it would be an abuse of process of law
and there would not be any end at all for the litigation. As a matter of
fact, courts would take a lenient view in allowing the application to set
aside the ex parte order, but that yard stick cannot be followed in this case
as the fourth defendant has all along been taking part in the proceedings and
he has been closely watching the proceedings also gave evidence on behalf of
the plaintiffs, now cannot turn around and file an application to set aside
the order and also file the written statement. This kind of practice is not
permissible and the same has got to be deprecated.
13. The learned Advocate for the revision petitioners would contend
that when it has been made out that the fourth defendant is colluding with the
plaintiffs and when he has already given evidence on behalf of the plaintiffs,
it has been made out that he is a colluding defendant and therefore he cannot
be permitted to file any written statement also after having given evidence on
behalf of the plaintiffs.
14. The learned Advocate for the respondent would contend that the
order passed against the first respondent is only an order and he must be
given opportunity to set forth his defence. In support thereof, he relied
upon the decision rendered in Om Parkash Vs. Amarjit Singh and Another
(1989(1)LW 470) and that is a suit for specific performance of the contract of
sale, the relief in the suit itself is a discretionary one. That in the said
context, it was held “the Court after consideration of all relevant
circumstances must be persuaded to exercise its equitable and discretionary
jurisdiction in favour of the specific enforcement. The jurisdiction is
subject to all the conditions to which all discretionary jurisdictions are
subject. There are certain personal bars to relief. Respondent-1, who was
the plaintiff in the suit, did not enter the box and tender evidence. The
subject matter of the suit is a small piece of property of 68 sq.yds., and is
said to be the only worldly goods of the appellant.” Only in the said
circumstances, and also the facts peculiar to that case it was observed,
having regard to all circumstances of the case and in order that complete
justice is done, the order commenced itself as appropriate is to set aside the
decrees of the Court below and remit the suit for fresh disposal after
affording fresh opportunity to both parties to adduce evidence on respective
side. The appellant is also entitled to have witness examined in his behalf
for cross examination.
15. The facts in the said case is totally different from the case on
hand. If the fourth defendant was not aware of the proceedings and if he has
not taken part in the proceedings, then the matter would be different, but
however the fourth defendant figured as a witness on behalf of the plaintiffs
and also watching the proceedings closely and filed the application to set
aside the ex parte order, it cannot be said that fourth defendant did not have
any opportunity to put forward his case. The fourth defendant had ample
opportunity, but he wantonly did not make use of the same. In the said
circumstances, I am of the view that the fourth defendant cannot be heard
again as a defendant by permitting to file written statement and also to
adduce evidence on the basis of the written statement.
16. For the reasons stated above, this Court comes to the conclusion
that the Court below has fallen into an error in allowing the application and
the same is not proper and therefore I have to necessarily interfere with the
said order.
17. In the result, the civil revision petition is allowed and the
order passed by the Court below is set aside. Consequently, connected CMP is
closed. No costs. But however, it is open to the fourth defendant to
transpose himself as plaintiff, if he is so advised.
ksr
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To
1.The Principal District Munsif, Salem.