1 BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 07.03.2013 Coram: THE HONOURABLE MR.JUSTICE G.M.AKBAR ALI Rev.Apl.(MD).No.15 of 2011 1.Jain Bai 2.Salomi (minor) (Minor represented by Guardian and mother, the 1st petitioner) .. Petitioners/Respondent 1 and 2) -Vs- 1.Kanakaraj (died) 2.Vansila Rani 3.Soloman 4.Sofia Mettilada 5.Minor Anjumol 6.Minor Samvel 7.Minor Anitta .. Respondents/Appellants (Minors 5 to 7 are represented by the 2nd respondent herein) Respondents 4 to 7 are brought record as LRs of the deceased 1st respondents vide order dt.19.12.12 & made in MP.Nos.1 & 2 of 2012 in the Rev.Appl.No.15/2011 by TRJ PRAYER: Review Application is filed under order 47 Rule 1 r/w Section 114 of the Code of Civil Procedure against the judgment and decree dated 20.01.2004 made by this Court in C.M.S.A.No.48 of 2003. (CMA(MD)No. NO.14/01 dt 19.03.2003 on the file of the Sub court Kuzhithurai against EA.No.182/97 in O.S.No.380/88 dt 02.03.2001, Principal District Munsif Court, Kuzhithurai For Petitioners : Mr.K.P.Narayanakumar For R-4 : Mr.H.C.Herold Singh R1 : died R2,3 and 5 to 7 : No appearance O R D E R The revision application is filed to review an order passed by this Court on 20.01.2004 in C.M.S.A.No.48 of 2003. 2. The Civil Miscellaneous Second Appeal was filed against the Judgment and Decree dated 19.03.2003 made in C.M.A.No.14 of 2001 on the file of Subordinate Court, Kulithurai, reversing the order and decreetal dated 02.03.2001 made in E.A.No.182 of 1997 in O.S.No.380 of 1988 on the file of the Principal District Munsif Court, Kuzhithurai. https://hcservices.ecourts.gov.in/hcservices/ 2 3. The respondents herein, who were the third party, filed E.A.No.182 of 1997 under Order 21, Rule 58, 59 and 151 of the Code of Civil Procedure. They have sought to raise the attachment of the property in an execution petition filed by the review petitioners herein. The review petitioners have obtained a decree of maintenance against the husband of the first petitioner, who is the father of the second petitioner in the original suit. Initially, E.A. filed under Order 21 Rule 58 and 59 was allowed. Against which, an appeal was preferred and the First Appellate Court, i.e., Subordinate Court, Kuzhithurai, reversed the order of the Executing Court. Against which, the civil Miscellaneous Second Appeal was filed questioning the validity of that order. This Court took up the matter and passed impugned order on 20.01.2004, as there was no appearance for the decree holder. This Court had also stated that there was no appearance for the respondents 1 and 2 and proceeded to pass a detailed order. The Civil Miscellaneous Second Appeal was allowed thereby restoring the original order of the Executing Court. Now, the present petition is filed to review the same order only on the point that the petitioners were not heard. 4. Mr.K.P.Narayanakumar, learned Counsel for the review petitioner relied on a judgment reported in 2005(4) MLJ 515, (The Management, Lucas TVS Limited vs. M.Gunaseelan) wherein, the First Bench of this Court has held as follows:- 3.It is the first principle of justice that no one should be condemned without affording him an opportunity of hearing. In the High Court it is the practice that notice is issued to the party by printing the name of the lawyer who has filed the vakalath on behalf of the party in the cause-list. Obviously, if the name of the lawyer is not shown in the cause-list, the lawyer will not get to know that the case is on board and may be taken up for hearing. Hence, any judgment passed without printing the name of the lawyer who has filed vakalath on behalf of the party in the cause-list becomes a nullity. Hence, in our opinion, the impugned order dated 21.09.2004 is a nullity as it is against the principle of natural justice. The impugned order is, therefore, set aside and the matter is remanded back to the learned single Judge for fresh disposal on merits after hearing the counsel for the parties. The writ petition is directed to be listed before the learned single Judge in the week commencing 5th September, 2005 for final hearing. Show the names of Mr.V.Karthik for M/s.T.S.Gopalan and Company for the petitioner and Mr.R.Gopalakrishnan for the respondents in the list.” 5. Learned counsel submitted that a vakalat was filed on behalf of the respondents 1 and 2., but, the name of the counsel was not printed and this is not fault on the part of the review petitioner. The learned counsel pointed out that the petitioners have arguable points in their favour and they have to be heard. 6. Opposing the same, Mr.H.C.Heroldsingh, learned counsel for the respondents would submit that the review itself is not maintainable, as there is no error apparent on the face of the record. If any other grounds are there, it could not be raised in the review petition. The https://hcservices.ecourts.gov.in/hcservices/ 3 learned counsel pointed out that if the petitioners are aggrieved, they should have preferred an appeal, as this Court has passed reasoned order in this regard. 7. Heard and perused the materials available on record. 8. This review is filed by the decree holder only on the ground that they have not been heard when the civil miscellaneous second appeal was disposed of. It is admitted that vakalat was filed. But, the name of the counsel was not printed in the cause list and the order dated 20.01.2004 says there is no appearance for the review petitioner. The First Bench of this Court has categorically stated that any judgment passed without printing the name of the lawyer who has filed vakalath on behalf of the party in the cause-list, becomes a nullity. The Hon'ble Chief Justice has stated that it is the first principle of justice, that no order should be passed, without affording an opportunity of hearing. More over, it is the duty of the Court to see that the justice is not only be done and should also appeared to have been done and no parties should suffere without being heard. As the principal laid down in the order of the First Bench (cited supra), the review petition is maintainable. Hence, the same is liable to be allowed only on the point of affording an opportunity of hearing. 9. Accordingly, the review petition is allowed and order dated 20.01.2004 is reviewed only to enable the petitioners to put forward their point for consideration and the petitioners have to be heard. 10. Post the Civil Miscellaneous Second Appeal on 25.03.2013 Sd/- Assistant Registrar /True Copy/ Sub Assistant Registrar skn To 1. The Subordinate Judge, Kuzhithurai 2. The Principal District Munsif, Kuzhithurai Copy to 1. The Section Officer VR Section, Madurai Bench of Madras High Court, Madurai 2. The Section Officer, Judicial Section, Madurai Bench of Madras High Court, Madurai +1CC to Mr.K.P.Narayanakumar,Advocate in SR.No.12727 GH : 20.03.2013 : 3p/6c Rev.Apl.(MD).No.15 of 2011 07.03.2013 https://hcservices.ecourts.gov.in/hcservices/