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V. Thirumalachariar Vs. Athimoola Karayalar and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtChennai
Decided On
Reported inAIR1926Mad256
AppellantV. Thirumalachariar
RespondentAthimoola Karayalar and ors.
Cases ReferredNarayanaswami Aiyar v. Dorasami Pathar
Excerpt:
- - i think really that is the case here as it is perfectly plain that, although the defendants are related by blood, they are of course in no sense a joint family nor is there any allegation, as far as i know, that they are living together or anything of the kind, so that 1 think that, with regard to defendants 1 and 7, the learned subordinate judge was wrong......the plaintiff, however, went into the box and examined himself and one other witness and an ex-parte decree was the result a petition was then put in to the succeeding subordinate judge mr. r. nageswara aiyar on the 7th february 1921, by the defendants 2 to 6 only to set; aside the ex-parte deciee and restore the suit to file. the learned suboidmate judge was inclined to believe that the petitioner's vakil was engaged elsewhere when the suit was taken up and was of opinion that that amounts to a reasonable cause for non-appearance of the petitioners on the day in question he therefore set aside the ex-parte decree obtained as against all the defendants2. two points have been argued before me in revision the first is that the judge has no jurisdiction to treat the absence of a.....
Judgment:
ORDER

Odgers, J.

1. This was a suit by the plaintiff against 7 defendants I understand that the suit is for specific performance of a contract entered into by the husband of the 1st defendant and the plaintiff. The suit is also in the alternative for the value of the land The deceased was one Nambi Kone. The 1st defendant is his widow, the 2nd defendant his nephew, 3rd defendant is the son of the 2nd defendant, Defendants 4 to 6 are the sons of a brother of the 2nd defendant and 7th defendant is the daughter of the deceased. These persons are all said to have in their hands certain Assets of the deceased Nambi Kone under some arrangement made in his lifetime, called a settlement The suit was called on for trial on the 29th October lt923, before the Subordinate Judge Mis. N.S. Natesa Aiyar. The Defendants 1 and 7 and Defendants 2 to 6 had different vakils on the record When the case was taken up, the vakil for the plaintiff was not there and neither of the vakils for the defendants was there. The plaintiff, however, went into the box and examined himself and one other witness and an ex-parte decree was the result A petition was then put in to the succeeding Subordinate Judge Mr. R. Nageswara Aiyar on the 7th February 1921, by the Defendants 2 to 6 only to set; aside the ex-parte deciee and restore the suit to file. The learned Suboidmate Judge was inclined to believe that the petitioner's vakil was engaged elsewhere when the suit was taken up and was of opinion that that amounts to a reasonable cause for non-appearance of the petitioners on the day in question He therefore set aside the ex-parte decree obtained as against all the defendants

2. Two points have been argued before me in revision The first is that the Judge has no jurisdiction to treat the absence of a practitioner is a sufficient cause for not appealing when the suit was called on for hearing under Order 9, Rule 12(2), Civil Procedure Code, and consequently that, even if the petitioner plantiff is wrong on this point, the ex-parte decree ought not to have been set aside as a whole, but only with regard to Defendants 2 to 6 who re-quested that it should be so set aside. I am far from saying that if, I were hearing this case on the Original Side, I should hold as an invariable rule that the absence of a pleader is a sufficient cause for setting aside the ex-parte decree. But it is a very different thing to say that the learned Subordinate Judge acted without jurisdiction or with material irregularity in regarding that, as a sufficient cause for doing so. 'With regard to the absence or presence of pleaders, the parties were in much the same boat before the Subordinate Judge and 1 am not inclined to interfere in revision with his discretion in regarding the absence of the pleader of Defendants 2 to 6, as a sufficient cause for non-appearance. I, therefore, think that with regard to this part of the case, the Civil Revision Petition must be dismissed. But there is one point where I think the Subordinate Judge had made an omission with regard to Defendants 2 to 6. The Defendants 2 to 6 should pay Rs. 100 as and for the plaintiff's costs before August 15th, 1925.

3. With regard to Defendants 1 and 7, I am not prepared to say that the cause of action is necessarily joint and indivisible as against them. The plaintiff has, I dare say, quite wisely made defendant, everybody that he can possibly conceive would have any assets of the deceased Nambi Kone and there is no doubt that he hopes to catch some of the assets any how in the hands of these defendants. I think the cause really falls within the principle laid down by Mr. Justice Krisbnan in the case reported in Narayanaswami Aiyar v. Dorasami Pathar [1921] M.W.N. 795. There the suit was one to obtain possession of separate items of the property from separate sets of defendants. I think really that is the case here as it is perfectly plain that, although the defendants are related by blood, they are of course in no sense a joint family nor is there any allegation, as far as I know, that they are living together or anything of the kind, so that 1 think that, with regard to Defendants 1 and 7, the learned Subordinate Judge was wrong. They did not petition either in the lower Court or here. The ex-parte decree, therefore, is not set aside as regards them. The petitioner will get his costs from Defendants 1 and 7 in this Court.


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