1 BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT Dated: 20.09.2011 C O R A M The HONOURABLE MR.JUSTICE M.DURAISWAMY S.A (MD) No.823 of 2011 and M.P (MD) No.2 of 2011 1.Mary Ammal 2.Selvi 3.G.Maria Amala 4.M.Kalaiyarasi .. Appellants/Defendants Vs. Francis Savarimuthu Nadar thro' his Power Agent James Raj .. Respondent/Plaintiff Prayer:- Second Appeal has been filed under Section 100 of Civil Procedure Code against the Judgment and decree, dated 13.10.2004 made in A.S.No.110 of 2004 on the file of the First Additional Sub-Court, Tirunelveli, reversing the judgment and decree dated 26.09.2003 made in O.S.No.200 of 1996 on the file of the Principal District Munsif Court, Valliyoor. For Appellants : Mr.H.Arumugam For Respondent : Mr.M.Vallinayagam JUDGMENT The above Second Appeal arises against the Judgment and decree, dated 13.10.2004 made in A.S.No.110 of 2004 on the file of the First Additional Sub-Court, Tirunelveli, reversing the judgment and decree, dated 26.09.2003 made in O.S.No.200 of 1996 on the file of the Principal District Munsif Court, Valliyoor. 2. The defendants are the appellants and the respondent was the plaintiff in the suit. The respondent/plaintiff filed a suit in O.S.No.200 of 1996, on the file of the Principal District Munsif Court, for declaration and for recovery of possession. 3. The brief facts of the plaintiff in the suit are as follows:- According to the plaintiff, the suit property originally belonged to one Antony Muthu Nadar, who is the grandfather of the second appellant and he orally gave the suit property to her father. Thereafter, her father sold the property to the respondent/plaintiff. According to the plaintiff, subsequent to the purchase, the appellants trespassed into the suit property. In these circumstances, the plaintiff filed the suit. https://hcservices.ecourts.gov.in/hcservices/ 2 4. The brief facts of the defendants in the suit are as follows:- According to the defendants, the said Antony Muthu Nadar executed a Will, dated 20.11.1987 in respect of the suit property in favour of the second appellant. Therefore, after the execution of the Will, he had no right over the property. Therefore, according to the defendants, the alleged sale deed executed in favour of the defendants is not valid and further it was also not acted upon by the parties. In these circumstances, the defendants prayed for dismissal of the suit. 5. Before the trial Court, on the side of the plaintiff, three witness were examined and eight documents, Exs.A1 to A8 were marked and on the side of the defendants, three witnesses were examined and three documents, Exs.B1 to B3 were marked. 6. The trial Court after taking into consideration the oral and documentary evidences of both sides dismissed the suit. Aggrieved over the judgment and decree of the trial Court, the plaintiff preferred an appeal in A.S.No.110 of 2004, on the file of the First Additional Sub-Court, Tirunelveli. The Lower Appellate Court set aside the judgment and decree of the trial Court and decreed the suit. Aggrieved over the judgment and decree of the lower Appellate Court, the defendants have filed the above second appeal. 7. Heard Mr.H.Arumugam, learned counsel appearing for the appellants and Mr.M.Vallinayagam, who took notice on behalf of the respondent. 8. By consent of both the counsel, the second appeal itself is taken up for final hearing and decided by this judgment at the admission stage itself. 9. The appellants have raised the following substantial questions of law in the second appeal:- “a) Whether the lower Appellate Court is right in allowing the appeal simply on the ground that appellants/respondents were ex-parte and passing a decree for declaration and recovery of possession when the trial Court dismissed the suit on merits? b) Whether the procedure adopted by the lower Appellate Court in hearing the appeal is bad in law in view of not following the Rule 16 & 17 of Order 41 of CPC? and c) Whether the lower Appellate Court is empowered to pass a decree and judgment reversing the judgment of trial Court without even hearing the appellant and giving finding on merits?” https://hcservices.ecourts.gov.in/hcservices/ 3 10. On a careful consideration of the materials available on record and the submissions made by both the counsel, it could be seen that the trial Court after taking into consideration the oral and documentary evidences of both sides dismissed the suit. Aggrieved over the judgment and decree of the trial Court, the plaintiff has filed the appeal in A.S.No.110 of 2004, on the file of the First Additional Sub-Court, Tirunelveli. However, before the lower Appellate Court, the defendants remained ex-parte. The lower Appellate Court recording the absence of the defendants, without giving any finding for reversing the judgment and decree of the trial Court, allowed the appeal. It is needless to say that the Lower Appellate Court is bound to give reasons for reversing the finding of the trial Court. 11. In the case on hand, the lower Appellate Court without applying its mind simply passed the following judgment:- “Heard. All respondents are ex-parte. Perused the records. Allowed.” 12. The lower Appellate Court while reversing the judgment and decree of the trial Court ought to have applied its mind and given its reasons for reversing the findings of the trial Court. For the reasons best known to the lower Appellate Court, the lower Appellate Court has erroneously set aside the judgment and decree of the trial Court and allowed the appeal, since the respondents remained ex- parte. Remaining ex-parte is not a ground for allowing the appeal. Therefore, the judgment and decree of the lower Appellate Court cannot stand and it is liable to be set aside. Accordingly, the judgment and decree of the lower Appellate Court are set aside and the matter is remanded back to the First Additional Sub-Court, Tirunelveli for fresh disposal. The substantial questions of law are decided in favour of the appellants. 13. The learned counsel appearing for the respondent submitted that pursuant to the judgment and decree in A.S.No.110 of 2004, the respondent/plaintiff took possession of the suit property in execution proceedings in E.P.No.11 of 2007, on the file of the District Munsif Court, Valliyoor. 14. The learned counsel appearing for the appellants also admitted that the plaintiff had taken possession of the property from the defendants. 15. Having regard to the submissions made by the learned counsel for the appellants and the respondent, I am of the view that the parties should maintain status quo till the disposal of the appeal in A.S.No.110 of 2004. The First Additional Sub-Court, Tirunelveli is hereby directed to dispose of the appeal in A.S.No.110 of 2004 on merits and in accordance with law within a period of two months from the date of receipt of a copy of this judgment, after giving opportunity to both sides. https://hcservices.ecourts.gov.in/hcservices/ 4 Accordingly, the second appeal is allowed. Consequently, the connected miscellaneous petition is closed. However there shall be no order as to costs. Sd/- Assistant Registrar (AS) /True Copy/ Sub Assistant Registrar To 1.The Principal District Munsif, Valliyoor. 2.The First Additional Subordinate Judge, Tirunelveli. +1 CC to Mr.H.Arumugam, Advocate (SR.No.32259) +1 CC to Mr.M.Vallinayagam, Advocate (SR.No.32307) Judgment made in S.A (MD) No.823 of 2011 20.09.2011 ps NSV/26.9.11/4P/5C https://hcservices.ecourts.gov.in/hcservices/