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2025 DAILYLAW 8635 (MAD)

T. Elangovan v. Subramaniyam

2025-10-17

P B Balaji

body2025
ORDER : P.B. BALAJI, J. 1. This revision petition has been filed to direct the First Appellate Court to admit the unnumbered I.A.No... of 2023, filed by the petitioner under Order XLI Rule 21 of CPC, in A.S.No.4 of 2014 on the file of the Sub-Court, Gobichettipalayam. 2.The 6 th defendant in O.S.No.375 of 2006 is the revision petitioner. 3.I have heard Mr.S.Mukunth, learned Senior Counsel for Mr.N.Krishnakumar, for M/s.Sarvabhauman Associates, learned counsel for the petitioner and Mr.A.V.Arun, learned counsel for the respondents 1 to 3. 4.Mr.S.Mukunth, learned Senior Counsel would submit that the revision petitioner is a purchaser of the suit property from the defendants 4 and 5, who in turn, had purchased the property from the 3 rd defendant, the legatee of the mother of the parties to the suit. The suit had been filed by the son of the testatrix, seeking partition claiming that the mother had died intestate. The suit was dismissed, upholding the Will executed by the mother. In the First Appeal, the respondents were all set ex-parte and the appeal came to be allowed by the First Appellate Court. 5.The learned Senior Counsel would further submit that the revision petitioner was not served with notice in the First Appeal and therefore, in order to seek re-hearing of the appeal on merits, an application was taken out by the revision petitioner. However, the said application has been returned as not maintainable, on the ground that the case was a contested decree and had been disposed of on 18.01.2019. The learned Senior Counsel, inviting my attention to the provisions of the Order XLI Rule 21 of CPC, would contend that it is permissible for the Court to permit re-hearing. He would therefore state that when it was the specific contention of the revision petitioner that he was not put on notice in the First Appeal, the Court ought to have entertained the application without returning the same as one not being maintainable. He would further contend that the provisions of Order XLI Rule 21 of CPC are in pari materia to provisions of Order IX Rule 13 of CPC and therefore, there is no embargo for the Appellate Court to permit re-hearing at the instance of the revision petitioner. He would further contend that the provisions of Order XLI Rule 21 of CPC are in pari materia to provisions of Order IX Rule 13 of CPC and therefore, there is no embargo for the Appellate Court to permit re-hearing at the instance of the revision petitioner. 6.Per contra, Mr.A.V.Arun, learned counsel appearing for the respondents 1 to 3 would submit that the revision petitioner has filed an application to condone the delay of 1519 days in even filing the application to re-hear the appeal and that he is only a purchaser pending the suit. He would refer to the provisions of Order XLI Rule 17 of CPC and contend that in a case where the appellant alone appears and the respondent does not appear, the Appellate Court is well within its powers to hear the appeal ex- parte and therefore, when the appeal is heard ex-parte and the Appellate Court has thought fit to reverse the findings of the trial Court and allow the First Appeal, it should be construed as a judgment on merits or in other words, a contested decree and therefore, the proper course of action for the petitioner would have to be to prefer an appeal as against the judgment in the Appeal Suit and not seek for re-hearing. In support of his contentions, the learned counsel for the respondents 1 to 3 would rely on the decision of the Hon'ble Supreme Court in Harbans Pershad Jaiswal (Dead) by Legal Representatives Vs. Urmila Devi Jaiswal (Dead) by Legal Representatives, reported in (2014) 5 SCC 723 . He would therefore pray for dismissal of the revision. 7.I have carefully considered the submissions advanced by the learned Senior Counsel for the petitioner and the learned counsel for the respondents 1 to 3. 8.In order to decide this revision, it would be appropriate to extract the relevant provisions of Order XLI Rule 17 and Order XLI Rule 21 are extracted hereunder for easy reference: “ 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. [Explanation.-Nothing in this sub-rule shall be construed as empowering the Court to dismiss the appeal on the merits] (2) Hearing appeal ex parte.- Where the appellant appears and the respondent does not appear, the appeal shall be heard ex parte. 21 . Re-hearing on application of respondent against whom ex parte decree made.- Where an appeal is heard ex parte and judgment is pronounced against the respondent, he may apply to the Appellate Court to re-hear the appeal; and, if he satisfied the Court that the notice was not duly served or that he was prevented by sufficient cause from appearing when the appeal was called on for hearing, the court shall re-hear the appeal on such terms as to costs or otherwise as it thinks fit to impose upon him.” 9.On a careful reading of the provisions extracted herein above, it is no doubt evident that in the appeal, when the appellant alone appears and the respondent does not appear, the appeal is to be heard ex-parte. In the present case, the appeal has been heard consequent to none of the respondents appearing in the appeal and the Appellate Court has reversed the judgment and decree of the trial Court by allowing the appeal. It is thereafter that the revision petitioner has come with up with an application under Order XLI Rule 21 of CPC, stating that he has not been served with notice in the appeal and therefore, the judgment pronounced in the appeal is to be only treated as an ex-parte judgment and decree and the petitioner is entitled to apply for re-hearing of the appeal. It is only the said application under Order XLI Rule 21 of CPC which has been returned by the First Appellate Court. I am unable to approve the procedure adopted by the First Appellate Court in returning the application under Order XLI Rule 21 of CPC on the ground that the appeal has been disposed of on merits. 10.As already discussed, it is an admitted fact that none of the respondents in the First Appeal chose to enter appearance and the Appellate Court has decided the appeal, after hearing the appellant alone. No doubt, Order XLI Rule 17(2) permits such hearing of the appeal ex-parte. Merely because the appeal has been allowed, it cannot get the character of a contested judgment and decree. No doubt, Order XLI Rule 17(2) permits such hearing of the appeal ex-parte. Merely because the appeal has been allowed, it cannot get the character of a contested judgment and decree. In fact, any First Appeal, which is being disposed, after hearing the appellant alone, would in that case has to be necessarily treated as a contested decree, because the Court has to independently apply its mind, based on the arguments advanced by the appellant and thereafter, either dismiss the appeal or allow the appeal. 11.The test is to whether the respondents were set ex-parte and they had not participated in the hearing of the appeal. That is the import of Order XLI Rule 21 of CPC as well. The phraseology employed in Rule 21 is evidently pointing to permissibility of the respondent in the appeal to seek re-hearing, provided he satisfies the Court that notice was not duly served on the said respondent or that he was prevented by sufficient cause from appearing, when the appeal was called on for hearing. Therefore, merely because the appeal has been allowed, it does not get the character of a contested decree. It would still remain an ex-parte judgment and decree and the revision petitioner, who claims that he has not been served with any notice in the First Appeal, is entitled to file an application for re-hearing of the appeal under Rule 21 Order XLI of CPC. 12.Of course, re-hearing would be subject to only satisfaction of the Appellate Court that the petitioner was not duly served with notice in the appeal, which is the specific case, on which the petitioner has filed the application before the First Appellate Court, while seeking re-hearing. The Appellate Court ought not to have returned the application as not maintainable on the ground that the appeal has been disposed of by a contested judgment and decree. 13.In Harban's case, (stated supra) the Hon'ble Supreme Court, dealing with Order XLI Rule 17(2) of CPC and the Explanation to Order XVII Rule 1 of CPC and referring to Rules 19 and 21, held that the appeal should not be heard on merits in the absence of the appellant. The Hon'ble Supreme Court was not dealing with the fact situation where the appeal had been allowed, after hearing the appellant alone and one of the respondents in the First Appeal had invoked Order XLI Rule 21 of CPC. The Hon'ble Supreme Court was not dealing with the fact situation where the appeal had been allowed, after hearing the appellant alone and one of the respondents in the First Appeal had invoked Order XLI Rule 21 of CPC. Therefore, I do not see this decision being of any use to this case. In view of the above, I am inclined to set aside the order of the First Appellate Court. 14. In fine, the Civil Revision Petition is allowed. The First Appellate Court shall number the application for condonation of delay in filing the application under Order XLI Rule 21 of CPC and after giving an opportunity to the respondents, the First Appellate Court shall decide the application on merits and in accordance with law. It is open to the respondents to raise all their contentions and objections, opposing the condonation of delay application, by filing a counter, for which the First Appellate Court shall give sufficient opportunity to the respondents in this regard. There shall be no order as to costs. Connected Civil Miscellaneous Petition is closed. 15.Registry is directed to return the original affidavit and petition, enclosed along with the typed set of papers, to enable the revision petitioner to represent the same before the First Appellate Court.