Karuppayee vs Chinnammal and Others

Oldfield, J.—A preliminary objection has been taken to this revision petition on the ground that petitioner will, if necessary, be able to

advance the considerations now relied on in an appeal against any decree which may be passed against him.

There is no doubt that he will be able so to advance them. Gopala Chetti v. Subhier 26 Ma. 604 : 13 M.L.J. 308. And there is authority for

treating this fact as decisive against the sustainability of a revision petition. Nand Ram v. Bhopal Singh 16 Ind. Cas. 1 : 34 A. 592 : 10 A.L.J. 130.

On the other hand, though, no doubt, the point has not been formally taken in any reported case in this Court, this Court''s practice has certainly

been to entertain petitions such as the present; and the reasons for abandoning that practice call for careful scrutiny, when its abandonment will

entail in many cases the holding of a trial on the merits, which will ultimately turn out to have been unnecessary.

Sections 115, Civil Procedure Code, authorises revision in ""any case in which no appeal lies to the High Court."" The practice of the Court

already referred to can be justified if the ""case"" in question is throughout treated as meaning only that which has resulted in the setting aside of the

ex parte decree and not the suit in which the decree is passed, against which an appeal lies. The letter view was taken, by the Bombay High Court

in Motilal Kashibhai v. Nana 18 B. 135. But the Madras case therein, referred to does not seem; to me to support it. Nor has other Madras

authority, which does, so been cited. In these circumstances, following the practice of this Court, I deal with the petition.

The lower Court''s order in the case of Nos. 1 to 3 defendants contains no finding on the question whether they had sufficient cause for

absenting, themselves from, the hearing instead there are references to the pendency and valuation of the suit. Yet only the existence of sufficient

cause could justify an order in Nos. 1. to 3 defendants'' favour.

The lower Court has disposed of 5th defendant''s case by stating, that it was similar to Nos. 1 to 3 defendants'' and that the order in theirs

would, apply to it. As 5th. defendant''s only explanation for his absence was that, though, he knew of the proceedings, he could not attend them

owing to distance and illness, there was no foundation for this disposals

The lower Court''s order is, set aside, and it is directed to re-admit the petitions, and to dispose of them in the light of the foregoing after

recording, distinct findings in each on the issue, whether Nos. 1 to 3 defendants and 5th defendant had sufficient cause for theirs failure to appear.

Costs will follow the result.