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Judgment
S. Palanivelu, J.—The petitioners are second and third defendants in O.S. No. 974 of 1991 on the file of the learned I-Additional Subordinate Judge, Madurai. They are the respondent Nos. 2 & 3 in I.A. No. 55 of 2005, the final decree application. The respondents filed the suit for partition and separate possession of their 1/4th share in the suit properties. The preliminary decree was passed on 01.11.2004 and there had been no appeal against preliminary decree. Thereafter the respondents filed the application in I.A. No. 55 of 2005 on the file of the said Court for passing final decree. In that application notices were served upon the respondents i.e., the petitioners herein and they have also made their appearance. The Advocate Commissioner was appointed for division of the properties and he filed his final report on 05.01.2006. After receipt of the Commissioner''s report, the Court called for the objections from both sides. On 13.06.2006 the respondents were not present before the Court and hence, the Court made the following order "respondents called absent, no representation till 5.05 p.m., respondents set ex-parte perusal and orders on 20.06.2006". on 20.06.2006, the Court passed the final decree after hearing the petitioners.
The petitioners filed the application under Order 9, Rule 7 of the CPC for setting aside the "ex-parte order" passed on 20.06.2006. In the affidavit they have stated that no opportunity was given to the petitioners to file their objections and the Court even without considering the shares of other parties seems to have passed an ex-parte order on 20.06.2006, that the Commissioner report has been filed in a hurried manner so as to divide the claims of the other sharers and passed the ex-parte order on 20.06.2006 and the same has to be set aside for giving them an opportunity to participate in the entire proceedings and the petitioners are also filing a separate application for the re-issue of Commissioner Warrant at later point of time and in the interest of justice and equity the application has to be allowed.
The petition was stoutly resisted by the respondents by stating that in spite of granting sufficient opportunities to the petitioners, they did not appear before the Court, allowing the Court to appoint the Advocate Commissioner for dividing the properties, who has also filed his final report on 05.01.2006 for which these respondents filed their objections on 13.06.2006 and since the petitioners did not appear before the Court on 13.06.2006, they were set ex-parte and the final decree was passed on 20.06.2006. In pursuance of the final decree, these respondents produced stamp papers to the value of Rs.10,000/- (Rupees Ten Thousand Only)for engrossing the final decree and got the same from the Court and presently they have filed the execution petition for delivery of the property and the same is pending. Hence, the petition has to be dismissed since it is not bonafide.
The learned I-Additional Subordinate Judge, Madurai has dismissed the application on the findings that the petitioners have not assigned any valid reasons for their absence before the Court on 13.06.2006 and 20.06.2006.
Mr. B. Murugan, the learned counsel for the petitioners would submit that the division of the properties by the Advocate Commissioner is not a reasonable one which would prejudice their rights and hence, they may be afforded an opportunity to project their objections and that it is the reason adduced in affidavit for setting aside the ex-parte order.
On the contrary, Mr. V. Srinivasan, the learned counsel for the respondents would contend that the petition is a misconceived one and firstly the petition should have been filed under Order 9, Rule 7 of the CPC and the prayer is also not couched properly that is to say instead of putting "ex-parte final decree" it has been mentioned as "ex-parte order" alone and hence, the petitioners do not intend to set aside the ex-parte final decree passed on 20.06.2006 and the petition has to be dismissed since the affidavit does not contain valid reasons for setting aside the decree.
The learned counsel for the respondents would also contend that the remedy was already open to the petitioners till 20.06.2006 to file an application to set aside the ex-parte order which was passed on 13.06.2006 and as they slipped the chance to file such application, they cannot file the present application which is barred under law. In support of his contention, he relied upon a Larger Bench decision of the Hon''ble Supreme Court in Bhanu Kumar Jain v. Archana Kumar and Anr. reported in 2005 1 L.W. 582, wherein their Lordships while dealing and discussing about the scope of Order 9, Rule 7, 13, Order 13, Rule 2 and Order 43, Rule 1, held that when the defendants were set ex-parte on earlier date and if they fail to file an application to set aside the ex-parte order anterior to pass the final orders in the suit, the petition under Order 9, Rule 7, could not be maintained after passing of the decree in the suit. The relevant portion of judgement goes thus:
Order 9, Rule 7 of the Code postulates an application for allowing a defendant to be heard in answer to the suit when an order posting a suit for ex-parte hearing was passed only in the event the suit had not been heard as in a case where hearing of the suit was complete and the Court had adjourned a suit for pronouncing the judgement, an application under Order 9, Rule 7 would not be maintainable.
Following the dictum laid down by the Hon''ble Supreme Court, it is to be observed that after passing of the final orders in an application or decree in a suit, the defendants are precluded from filing any application under Order 9, Rule 7 of the CPC and the avenue for seeking the remedy to set aside the ex-parte order was already exhausted. However, they can maintain the petition under Order 9, Rule 13 of the CPC after passing final order in an interlocutory application or in the suit. Even though, considering the contention of the learned counsel for the respondents, the prayer in the petition is captioned as Order 9, Rule 7 of the Civil Procedure Code, the quoting of wrong provision of law will not dis-entitle a party to seek necessary relief, it is well settled and it has also been held in S. Rajeswari Vs. S.N. Kulasekaran and Others, .
As far as the drafting of the prayer in the petition is concerned, there may be lacking of appropriate words in the prayer, but the intention of the defendants was concentrated on setting aside the ex-parte decree passed on 20.06.2006, as evident from the inclusion of the date 20.06.2006 in the prayer contained in the petition and hence, mentioning of the words "ex-parte order" would not make the petitioners incompetent to pray for the relief.
Adverting to the fact whether the petitioners have made out any valid ground in their affidavit for setting aside the ex-parte final decree, it is to be admitted that the affidavit does not contain any allegation directly on the point. However, the intention of the parties could be gathered from the affidavit. It is their contention that the report of the Commissioner was filed in a hurried manner and the shares available to the petitioners and other defendants were not considered by the Court and that they are intending to file an application to re-issue of Commissioner''s warrant.
Considering the fact that the suit is pending from 1991 and also their attitude at the time of final disposal of the original suit, that is to say, offering their consent to pass preliminary decree as prayed for in the suit and their continuous participation in the suit and in the final decree proceedings, this Court is of the view that, they may be given further opportunities to make their representation before the Court. Another thing to be pointed out is that the petition has been filed in time without delay. For the forgoing reasons, it is in the opinion of this Court, the petition is allowed setting aside the order passed on 20.06.2006 by the trial Court. While the above said consideration is undertaken, the comparative hardships sustained by the other side should also be borne in mind. The suit is of the year 1991 and after getting the preliminary decree, the petitioners have also obtained the final decree and in pursuance of which, they purchased stamp papers to the value of Rs. 10,000/- (Rupees Ten Thousand Only) for engrossing the final decree, the same was done and they have also filed an Execution petition for delivery which is pending. They have also paid a sum of Rs. 2,000/-(Rupees Two Thousand Only) to the Advocate Commissioner appointed by the trial Court. Besides, they have also incurred large expenditure in filing the final decree application, payment of Commissioner fee, production of stamp papers and getting on with Execution proceedings. All are put together and this Court fixes Rs. 15,000/-(Rupees Fifteen Thousand Only) as cost to be paid by the petitioners to the respondents which would meet the ends of justice.
In the result, the Civil Revision Petition is allowed on payment of cost of Rs. 15,000/-(Rupees Fifteen Thousand Only) to be paid by the petitioners to the respondents or before January 20, in default the petition shall stand dismissed without further reference to this Court. On restoration of the application in I.A. No. 55 of 2005, the Court below shall dispose it of within a period of three months from the date of said restoration. In case, if the petitioners file any application to re-issue of Commissioner''s warrant, it may also be considered by the Court below. No costs.