IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED:02.02.2011 Coram: THE HONOURABLE MR.JUSTICE G.RAJASURIA S.A.No.512 of 2009 and M.P.No.1 of 2009 1. Saraswathi 2. Onasis .. Appellants vs. 1. Thayammal 2. T.K.Loganathan 3. T.K.Sekar 4. Vijayalakshmi 5. Rajammal alias Rasamani 6. Angamuthu 7. Mahendran 8. Sarasu alias Saraswathi 9. Mallika 10.Nallasivam alias Sivasubramaniam .. Respondents (Respondents 2, 3 and 10 exparte in the courts below and hence notice may be dispensed with to them) This second appeal is filed against the judgment and decree dated 03.02.2009 passed by the learned Principal District Judge, Erode in A.S.No.42 of 2008 confirming the judgment and decree dated 13.02.2008 passed by the learned Principal Subordinate Judge, Erode in O.S.No.269 of 2006. For Appellants : Mr.A.K.Kumarasamy For Respondent 1 : Mr.N.Manokaran J U D G M E N T This second appeal is focussed by the defendants 4 and 5, animadverting upon the judgement and decree dated 03.02.2009 passed by the learned Principal District Judge, Erode in A.S.No.42 of 2008 confirming the judgment and decree dated 13.02.2008 passed by the learned Principal Subordinate Judge, Erode in O.S.No.269 of 2006. 2. The parties are referred to here under according to their litigative status and ranking before the trial Court. https://hcservices.ecourts.gov.in/hcservices/ 3. Heard both sides. 4. The factual matrix lies within a narrow campus, which is pithily and precisely set out thus: a) The plaintiff filed the suit O.S.No.269 of 2006 seeking the following reliefs: - for division of the suit properties into 4 equal shares by metes and bounds and with reference to good and bad soil and allot one such share to the plaintiff and put her in separate possession; - to appoint a commissioner to divide the suit properties as claimed in column (a); - to restrain the defendants from in any way and in any manner either alienating or encumbering the suit properties including the share of the plaintiff with specific boundaries till final partition is effected by means of permanent injunction; - to direct the defendants to pay the costs of the suit to the plaintiff. (extracted as such) b) Written statement was filed by D9 virtually agreeing to the case of the plaintiff. It appears D1 died. However D2 to D8 remained exparte before the trial court. c) Whereupon issues were framed. On the side of the plaintiff, she examined herself as PW1 and marked Exs.A1 to A11. The ninth defendant/Mahendran examined himself as D.W.1 and no document was marked. d) Ultimately the trial court decreed the suit. e) Instead of filing an application to get the exparte decree set aside, the appellants herein/D4 and D5 preferred appeal before the District Court; whereupon the District Court dismissed the appeal. 5. Challenging and impugning the judgments of both the courts below, this second appeal has been focussed on various grounds inter alia to the effect that the lower appellate court was not right in holding that the proper remedy for the appellants was only to file an application to get the exparte decree set aside; but they did not do so and with that finding the first appellate court simply dismissed the appeal. Even the application filed under Order 41 Rule 27 of CPC was dismissed. 6. Accordingly, suggesting the following substantial questions of law in the memorandum of appeal, this second appeal has been filed. a. Is the lower appellate court justified in dismissing the appeal stating that as the appellants were https://hcservices.ecourts.gov.in/hcservices/ set exparte in the trial court, the appeal filed by them is not maintainable? b. Is the plaintiff/1st respondent entitled to seek partition of the suit properties without proving the title of her father to the same? (extracted as such) 7. My learned predecessor while admitting the second appeal, framed the following substantial question of law: Whether the lower appellate court is justified in dismissing the appeal stating that as the appellants were set exparte in the trial court, the appeal is not maintainable? 8. The learned counsel for the appellants/D4 and D5 would submit that filing an application under Order 9 Rule 13 CPC is not a sine qua non, before filing an appeal against the exparte judgment and decree. The party who remained exparte is also entitled to file an appeal and prosecute the appeal, but the first appellate court, ushering in an erroneous proposition of law, simply dismissed the appeal, warranting interference in the second appeal. 9. Whereas by way of torpedoing and pulverising the argument as put forth on the side of the appellants/D4 and D5, the learned counsel for the first respondent/plaintiff would submit that this is a singularly singular case, in which D4 and D5 approached the first appellate court with a distinct plea of their own, as they did not merely find fault with the exparte decree; but they wanted to put forth their case afresh for the first time before the first appellate court even without a written statement of their own. 10. Trite the proposition of the law is that, a person who remained exparte is entitled to file an appeal and there could be no quarrel over such a proposition. However, the appellant, who remained exparte in the lower court cannot try to convert the first appellate court into a trial court by seeking permission to file written statement and also documents to participate in the proceedings. 11. The learned counsel for the appellants/D4 and D5 would submit that written statement was not filed by D4 and D5 and that they reposed confidence in D9 that he would contest the matter on behalf of all the defendants, but he turned turtle and had an volte face and submitted virtually to the decree, leaving the appellants/D4 and D5 high and dry. 12. The learned counsel for the appellants/D4 and D5 would draw the attention of this court to the alleged Varthamanam agreement dated 17.11.1998 and submit that already the plaintiff relinquished https://hcservices.ecourts.gov.in/hcservices/ her right over the suit property and in such a case, she has no locus standi at all to file the suit. 13. At this juncture, I cannot give any verdict on the admissibility or validity of the said Varthamanam agreement. It is not the case that from the available materials already on record, the appellants/D4 and D5 are finding fault with the judgment and decree of the lower court. I am fully aware of the fact that even the exparte judgment should be a reasoned and discernible one and it should not simply be granted on the plaintiff asking for it. 14. Here, because D9 virtually submitted to decree, the lower court decreed the suit. Now then, D4 and D5, who are placing reliance on the aforesaid document which they ought to have produced after filing the written statement should prove their case. Hence, I am of the view that this is a different case from any other ordinary case, where the exparte decree itself could be found fault with in the appeal. Hence, I could see no reason to interfere with the reason furnished by the appellate court. Accordingly, the substantial question of law is answered and the second appeal is dismissed. 15. At this juncture, the learned counsel for the appellants/D4 and D5 would submit that since the second appeal also has been dismissed, D4 and D5 may be given an opportunity to approach the lower court to file necessary application under Order IX Rule 13 of the Code of Civil Procedure with an application under Section 5 of the Limitation Act to get the delay condoned. Whereupon, the learned counsel for the plaintiff/first respondent would submit that in such an event, liberty might also be given to her to oppose such applications on the ground that such applications are not maintainable. 16. The said submissions made on both sides are recorded and they are at liberty to do so and the lower court concerned is expected to decide as per law if any such applications are filed, untrammelled and uninfluenced by any of the observations made by this court. 17. With the above observation, this second appeal is dismissed. No costs. Consequently, the connected miscellaneous petition is closed. Sd/- Asst. Registrar. /true copy/ Sub Asst. Registrar. https://hcservices.ecourts.gov.in/hcservices/ vj2 To 1. The Principal District Judge, Erode 2. The Principal Subordinate Judge,Erode 1 cc to Mr.A.K. Kumarasamy, SR.7941 + 1 cc to Mr.N. Manokaran, SR.8265 S.A.No.512 of 2009 SA(CO) Eu 24.5.11 https://hcservices.ecourts.gov.in/hcservices/