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V. Tirumalachariar Vs. Athimoola Karayalor and ors. - Court Judgment

LegalCrystal Citation
CourtChennai
Decided On
Judge
Reported in92Ind.Cas.776
AppellantV. Tirumalachariar
RespondentAthimoola Karayalor and ors.
Cases ReferredNarayanaswamy Iyer v. Doraiswamy Pathar
Excerpt:
civil procedure code (act v of 1908), section 115 order ix, rule 13 - ex parte decree, application to set aside--engagement of pleader in other court, whether sufficient cause--discretion of court--revision--decree against several defendants having separate interests-application by some to set aside decree-procedure. - .....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. e. nageswara iyer on the 7th february 1924 by the defendants nos. 2 to 6 only to set aside the ex parte decree and restore the suit to file. the learned subordinate 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 amounted to a reasonable cause for non appearance of the petitioners on the days 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.....
Judgment:
ORDER

Odgers, J.

1. This was a suit by the plaintiff against seven 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 Khone, the 1st defendant is his widow, the 2nd defendant his nephew, 3rd defendant is the son of the 2nd defendant, defendants No. 4 to 6 are the sons of a brother of the 2nd defendant and the 7th. defendant is the daughter of the deceased. These persons are all said to have in their hands certain assets of the deceased Nambi Khone under some arrangement made in his lifetime, called a settlement. The suit was called on for trial on the 24th October 1923 before the Subordinate Judge, Mr. N.S. Natesa Iyer The defendants No. 1 and 7 and defendants Nos. 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. E. Nageswara Iyer on the 7th February 1924 by the defendants Nos. 2 to 6 only to set aside the ex parte decree and restore the suit to file. The learned Subordinate 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 amounted to a reasonable cause for non appearance of the petitioners on the days 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 as a sufficient cause for not appearing when the suit was called on for hearing under Order IX, Rule 13(a) and consequently that even if the petitioner-plaintiff is wrong on this point the ex parte decree ought not to have been set aside as a whole but only with regard to the defendants Nos. 2 to 6 who requested 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 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 I am not inclined to interfere in revision with his discretion in regarding the absence of the Pleader of the defendants Nos. 2 to 6 as a sufficient cause for non-appearance. I, therefore, think that with regard to thi|3 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 the defendants Nos. 2 to 6. The defendants Nos. 2 to 6 should pay the plaintiff's costs up to date before the suit is taken on the file in the Sub-Court.

3. With regard to defendants Nos. 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 defendants everybody that he can possibly conceive would have any assets of the deceased Nambi Khone, 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 case really falls within the principle laid down by Mr. Justice Krishnan in the case reported as Narayanaswamy Iyer v. Doraiswamy Pathar 65 Ind. Cas. 343 : (1921) M.W.N. 795. There the suit was one to obtain possession of separate items, of 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 I think that with regard to defendants Nos. 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 Nos. 1 and 7 in this Court.


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