1 BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED : 09.06.2011 CORAM THE HONOURABLE MR.JUSTICE N.KIRUBAKARAN C.R.P(PD)(MD)No.1245 of 2011 and M.P(MD)No.1 of 2011 C.Angusamy .. Petitioner/Petitioner Vs. C.Panchavarnam .. Respondent/Respondent PRAYER:Civil Revision Petitions have been filed under Section 115 of the Civil Procedure Code against the order passed in I.A.No.159 of 2007 in A.S.No.24 of 2003, dated 24.06.2008 on the file of the Sub-court, Paramakudi, Ramnad District. For Petitioner : Mr.C.Selvaraj For Respondent : Mr.V.Raghavachari ORDER "Whether an act of the party can reverse the decree on merits passed by a competent Court?" 2. Though the petitioner is before this Court seeking for condonation of delay of 723 days in filing revision against the order of dismissal of petition to condone the delay of 1141 days to set aside ex- parte decree passed in Appeal Suit No.24 of 2003 on 22.09.2004, due to peculiar circumstances of the case, this Court is compelled not only to allow the condone delay petition, but also to allow the set aside petition and to set aside the appeal suit decree itself. 3. The petitioner herein filed a suit in O.S.No.95 of 2002 for declaration and for consequential permanent injunction. After contest by the respondent herein the suit was decreed on 28.03.2003. Aggrieved by the decree passed in favour of the petitioner herein, the respondent preferred A.S.No.24 of 2003 and the said appeal was allowed on 15.07.2003. To set aside the said decree passed in the appeal suit, the petitioner herein filed interim application along with the delay of 1141 days to set aside the decree. The said condone delay petition was dismissed on 24.06.2008. Against the said order, the present petitioner preferred C.R.P along with the delay of 723 days and the said delay petition is before this Court. 4. Heard the parties. 5. It is very shocking to note that the lower appellate Court set aside contested decree and judgment of the trial Court merely because the respondent/decree holder did not appear before the lower appellate Court. The appellate Court acted like a trial Court wherein if the plaintiff does not appear, the suit would be dismissed for default and if the defendant does not appear, the suit would be decreed ex-parte. Provisions in C.P.C applicable for original suit are different from the provisions applicable to appeal. The decree passed by the first appellate Court is extracted as follows: cj;jut[ “"cgajug;gpdh;fspd; tHf;fwpqh;fs; M$h;. Bky;KiwaPl;lhsh; M$h;. vjph;Bky;KiwaPl;lhsh; miHf;fg;gl;Lk; M$hpy;iy. mjpf ehl;fs; nk;Bky;KiwaPL epYitapYs;sJ. mtiug; gw;wp ve;j jftYk; ne;ehs;tiu ny;iy vd;gjhy;, https://hcservices.ecourts.gov.in/hcservices/ 2 tUifapy;yhepiy gjpt[ bra;ag;gl;lJ. Bky;KiwaPL bryt[j; bjhifa[ld; mDkjpf;fg;gLfpwJ. 2004k; Mz;L brg;lk;gh; jpA;fs; 22k; ehshd nd;W vd;dhy; nj;jpwe;j ePjpkd;wj;jpy; mitawpa gfug;gl;lJ.""” 5. The aforesaid appellate Court decree would show that it has been passed erroneously. The Sub-Court cannot set aside the decree on merits for non-appearance of the decree holder. Therefore, the decree passed by the appellate Court suffers and the appellate Court erroneously and wrongly and contrary to C.P.C exercised its powers and reversed the decree on merits and the same cannot be sustained. If the decree holder does not appear the appellate Court ought to have passed judgment on merits as per Order 41 Rule 17 of C.P.C which is extracted as follows: 17.Dismissal of appeal for appellant's default. (1) where on the day fixed, or on any other day to which the hearing may be adjourned, the appellant does not appear when the appeal is called on for hearing, the Court may make an order that the appeal be dismissed. (2) Hearing appeal ex parte - Where the appellant appears and the respondent does not appear, the appeal shall be heard ex parte. 6. The aforesaid provision makes it very clear that the appeal is required to be heard exparte and it does not mean that the appeal is to be allowed exparte setting aside the contested decree of the trial Court. What is intended under Order 41 Rule 17(2) is hearing of the appeal exparte (in the absence of the respondent) and deciding the matter on merits. Otherwise the lower Court decree on merits would be mechanically set aside and it would be traversity of justice. Can the default of the respondent in the appeal set aside the judicial order/decree of the competent Court. Certainly not. The intention of the legislation is only to hear the appeal exparte and decide the same on merits." Therefore the decree passed by the lower appellate Court is contrary to law and the same has to be set aside 7. As stated above, though only petition to condone the delay in filing this revision against the dismissal of set aside petition is filed, because of the grave error committed by the first appellate Court, this Court suo motu is compelled to set aside the said decree passed in A.S.No.24 of 2003 dated 22.09.2004. This Court cannot remain as silent spectator, when it notices the erroneous decree passed by the appellate Court. This Court is a custodian of justice and the same is recognised by the Honourable Apex Court in Shalini Shyam Shetty and another v. Rajendra Shankar Patil reported in 2010 (8) SCC 329. Relevant sub-paras in para 49 of the above judgment is extracted as follows: "(k) The power is discretionary and has to be exercised on equitable principle. In an appropriate case, the power can be exercised suo motu. (l) On a proper appreciation of the wide and unfettered power of the High Court under Article 227, it transpires that the main object of this article is to keep strict administrative and judicial control by the High Court on the administration of justice within its territory. https://hcservices.ecourts.gov.in/hcservices/ 3 (m) The object of superintendence, both administrative and judicial is to maintain efficiency, smooth and orderly functioning of the entire machinery of justice in such a way as it does not bring it into any disrepute. The power of interference under this article is to be kept to the minimum to ensure that the wheel of justice remains pure and unpolluted in order to maintain public confidence in the functioning of the tribunals and Courts subordinate to the High Court. (n) This reserve and exceptional power of judicial intervention is not to be exercised just for grant of relief in individual cases but should be directed for promotion of public confidence in the administration of justice in the larger public interest whereas Article 226 is meant for protection of individual grievance. Therefore, the power under Article 227 may be unfettered but its exercise is subject to high degree of judicial discipline pointed out above." Therefore, interest of justice requires this Court "suo motu" to set aside the erroneous decree passed by the appellate Court. As the decree itself is set aside, no orders is necessary in the consequential delay petition. In view of setting aside the decree passed in A.S.No.24 of 2003, this Court remands the matter to the first appellate Court to decide the appeal suit on merits by October, 2011. 8. Both the parties are directed to appear before the Sub-Court, Paramakudi, Ramnad District on 21.11.2011. The learned counsel undertook to inform the respective parties about the posting of the matter before the first appellate Court on the date and therefore, no notice is separately required for the parties. On such appearance, the first appellate Court is directed to dispose of the appeal suit on merits on by November, 2011. 9. The above order is passed under Article 227 of the Constitution of India as well as under Section 151 of the Code of Civil Procedure, only to see that substantial justice is done to the parties and to shorten the litigation and to set right the error committed by the first appellate Court. 10. This Civil Revision Petition is allowed and the appellate court decree is suo motu set aside and direction is issued as stated above. No Costs. Consequently, connected miscellaneous petition is closed. Sd/- Assistant Registrar (CO) /True copy/ Sub Assistant Registrar To The Sub Judge, Paramakudi, Ramnad District. Pm SR : 15.11.2011 : 3p/2c : IT C.R.P(PD)(MD)No.1245 of 2011 09.06.2011 https://hcservices.ecourts.gov.in/hcservices/