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S. Sam Davidson Represented by the Power Holder D. Suresh v/s Santhakumari

    S.A.(MD).No. 218 of 2019 & CMP(MD).No. 4407 of 2019

    Decided On, 21 April 2022

    At, Before the Madurai Bench of Madras High Court

    By, THE HONOURABLE MR. JUSTICE R. VIJAYAKUMAR

    For the Appellant: M.P. Senthil, Advocate. For the Respondent: S. Ramakrishnan, D. Christenson Jugunu, Advocates.



Judgment Text

(Prayer: Second Appeal is filed under Section 100 of C.P.C, to set aside the judgment and decree dated 13.08.2018 passed in A.S.No.35 of 2014 on the file of the Principal District Court, Kanyakumari at Nagercoil reversing the judgment and decree dated 20.07.2012 passed in O.S.No.115 of 2011 on the file of the Subordinate Court, Padmanabhapuram.)

The plaintiff is the appellant.

2. The plaintiff has filed O.S.No.115 of 2011 before the Subordinate Court, Padmanabhapuram for demarcation and fixation of boundaries of the plaint schedule property as per the plaintiff's document, re-survey plan and through an Advocate Commissioner appointed by the Court with the help of Taluk Surveyor. The plaintiff further prayed for recovery of encroached portions from the defendants 1 and 2. The plaintiff further prayed for a decree for permanent injunction restraining the defendants 1 and 2 from disturbing the peaceful possession and enjoyment of the plaintiff over the suit schedule property.

3. The defendants 1 and 2 who are the contesting parties did not file a written statement and remained exparte.

4. Ten documents were filed on the side of the plaintiff. The power agent of the plaintiff was examined as PW1. An Advocate commissioner was appointed and he filed his report and plan which are marked as Exhibits C1 and C2. After the said exercise, the trial Court decreed the suit as prayed for. The first defendant who had remained exparte before the trial Court had filed A.S.No.35 of 2014 before the Principal District Court, Kanyakumari at Nagercoil. The appeal was allowed by the learned District Judge and the suit was dismissed. As against the same, the present second appeal has been filed by the plaintiff.

5. The plaintiff has contended that the suit schedule property along with other properties were originally owned by one Padma Murugesan by way of sale deeds under Exhibits A2 to A4. The said Padma Murugesan has executed a power deed under Exhibit A6. The said power agent has executed a sale deed in favour of the plaintiff for 1 acre and 6 cents under Exhibit A7 on 14.07.2009. Since the plaintiff is residing far away from the plaint schedule property, he has appointed one D.Suresh as his power agent under Exhibit A1.

6. The plaintiff had further contended that in the southern side of the plaint schedule property, the properties of the defendants 1 and 2 are located. Though there is a bund and fence in between the properties of the plaintiff and the defendants, in the absence of the plaintiff, the defendants 1 and 2 have demolished the said bund and fence.

7. The plaintiff gave an application to Tahsildar to measure the plaint schedule property as per the document and re-survey plan and for fixing the boundary between the plaint schedule property and the defendants' property. Though such an exercise was carried out, the defendants objected for laying of survey stones. According to the plaintiff, the first defendant has encroached 15 cents and the second defendant has encroached 10 cents from the plaintiff's property. Hence, the plaintiff prayed for demarcation of his southern boundary and for recovery of encroached portions from the defendants 1 and 2.

8. The second defendant filed a written statement. However, the plaintiff filed a memo before the Court that the issue between the plaintiff and the second defendant has been settled out of Court and hence, the suit as against the second defendant may be dismissed. The said memo was recorded and the suit was dismissed against the second defendant and he was removed from array of parties in the suit.

9. The first defendant has not filed any written statement and remained exparte.

10. Before the trial Court, the power agent was examined as PW1. Through him, exhibits A1 to A10 documents were marked. An Advocate Commissioner was appointed. He filed his report and plan under Exhibits C1 and C2. The trial court relied upon the deposition of PW1 and the Commissioner's report in which the encroached portion was marked as 'A'. Based upon the said deposition and the Commissioner's report, the trial Court decreed the suit as prayed for as against the first defendant. The trial Court directed the commissioner's plan to be part of the decree.

11. The first defendant filed A.S.No.35 of 2014 before the Principal District Court Kanyakumari at Nagercoil. The first defendant had contended before the First Appellate Court that the trial Court has passed an erroneous judgment without giving an opportunity to defend the case. The learned First Appellate Court has taken into consideration that the boundary recitals in Exhibits A2 to A4 are one of the same. The First Appellate Court arrived at a conclusion that the parent documents are not mentioned in Exhibits A2 to A4. The First Appellate Court further found that the plaintiff has not proved his case and the boundary recital do not tally with the commissioner's report. The trial Court further arrived at a finding that the Commissioner was not the competent to say it as a encroachment. The learned First Appellate Judge discussed in detail about the defective boundary recitals in the title deed of the plaintiff and rejected the commissioner's report and plan on the ground that it is erroneous. Based upon the said findings, the First Appellate Court reversed the judgment and decree of the trial Court and dismissed the suit. The First Appellate Court also found that during the pendency of the first appeal, the decree has already been executed and the execution proceedings have been terminated. As against the judgment and decree, the present second appeal has been filed by the plaintiff.

12. The learned counsel for the appellant contended that despite the service of summon, the first defendant has not filed a written statement. When there is no pleading on the part of the defendant that the boundary recital of the plaintiff's documents are erroneous, the First Appellate Court had erred in considering the same. He further contended that the channel that is running between the northern and southern half is running in a private patta land. Hence, the channel was not mentioned as a boundary in Exhibits A2 to A4. Unless the plaintiff was put on notice about the doubts raised by the First Appellate Court, the plaintiff was not in a position to explain these aspects before the First Appellate Court. He further contended that the first defendant is not making any claim over the suit survey number namely Re-survey No.528. Any objection with regard to the lie and location of the property or with regard to the tracing of title or with regard to the boundary recital, unless raised as a defence in the written statement cannot be independently considered by the First Appellate Court and that too in the absence of any specific ground raised by the first defendant in the first appeal Hence, he prayed for allowing the second appeal.

13. Per contra, the learned counsel for the respondent/first defendant contended that the First Appellate Court is legally entitled to go into the question whether the plaintiff has proved his title or not. The First Appellate Court is entitled to consider the boundary recital in Exhibits A2 to A4 and also the Commissioner's report and plan to arrive at a finding that the plaintiff has not proved his case. Hence, he contended that the judgement and decree of the First Appellate Court may be confirmed and the second appeal may be dismissed.

14. I have given anxious consideration to the submissions made on either side.

15. The above second appeal has been admitted on the following substantial questions of law.

“1. Has not the lower Appellate Court committed a serious error in law in misconstruing the misinterpreting the boundary recitals to the documentary evidence marked under Exs.A2, A3, A4 & A7?

2. Whether the lower Appellate Court is right in law in holding that the suit itself is not maintainable without the relief of declaration in the absence of any plea taken by the respondent, on the more, the relief sought for in the plaint is more than sufficient to adjudicate the issue before the Court as there is no cloud over the title of the appellant?”

16. The plaintiff had filed a suit for demarcation of boundary, recovery of possession and permanent injunction for 1 acre and 6 cents in Re-survey No.528. The plaintiff has specifically pleaded that the property of the defendants 1 and 2 are located on the southern side of the suit schedule properties. Admittedly, the first defendant has not filed any written statement and has remained exparte. It is not the case of the first defendant that summons were not served upon him. Where summons have been duly served and thereafter, if the defendants have not appeared before the Court, the trial Court is entitled to proceed exparte as contemplated under Order 9 Rule 6 of C.P.C.

17. If the defendant is set exparte under Order 9 Rule 6 of C.P.C., and an exparte order is passed, it does not preclude the defendant from appearing in the next stage of the suit. Setting a defendant as exparte is only for that stage of the suit. The defendant can very well walk in and participate in the next stage of the proceedings subject to the limitation of non-filing of the written statement. The defendant who has been set exparte can very well cross-examine the plaintiff or make submissions in the suit. Only if the defendant wants to put the clock back, he has to file an application under Order 9 Rule 7 C.P.C so as to revert back to the original position before he was set exparte. Otherwise the defendant is always at liberty to participate in the trial, without setting aside the exparte order, in the subsequent stage of the proceedings.

18. In the present suit, the defendant has not filed a written statement. Though the defendant has got a right to cross examine the plaintiff or submit his arguments, the defendant has not chosen to do the same, but has remained exparte through out and let the Court to pass an exparte decree.

19. It is settled position of law that whenever an exparte decree is passed, the trial Court has to consider all the oral and documentary evidence filed on the side of the plaintiff and only after considering the merits of the said evidence, even an exparte decree can be passed. In the present case, though the first defendant had remained exparte, the plaintiff has chosen to file Exhibits A1 to A10. The plaintiff has also filed an application for appointment of Advocate Commissioner. The Advocate Commissioner has filed his report and plan which are marked as Exhibits C1 and C2. Only after considering the title deeds of the plaintiff and the Commissioner's report, the trial Court has arrived at a finding that the plaintiff has proved his case and granted an exparte decree in favour of the plaintiff.

20. Whenever an exparte decree is passed, the defendant has got two options, he can either file an application under Order 9 Rule 13 C.P.C, to set aside the exparte decree or file a regular appeal under Section 96(2) of C.P.C. If the defendant chooses to file an application under Order 9 Rule 13 C.P.C, the trial Court can only consider the reason for the non-appearance of the defendant on the said date and whether it was legally acceptable for setting the defendant as exparte on the said date. However, where a regular appeal is filed under Section 96(2) of C.P.C., the powers of the First Appellate Court are much wider. The First Appellate Court will be entitled to consider the merits of the exparte decree passed by the trial Court.

21. The Hon'ble Supreme Court in a judgment reported in (2005) 1 SCC Page 787 in paragraph No.24 has held as follows:

“24. An appeal against an exparte decree in terms of Section 96(2) of the code could be filed on the following grounds:

(i) the materials on record brought on record in the exparte proceedings in the suit by the plaintiff would not entail a decree in his favour, and

(ii) the suit could not have been posted for exparte hearing.”

22. In view of the judgment of the Hon'ble Supreme Court, it is evident that the defendant would be entitled to challenge the exparte decree by way of filing a regular appeal. The First Appellate Court will be entitled to consider the merits of the exparte decree passed by the trial Court. The First Appellate Court will also be entitled to consider whether the trial Court was right in passing an exparte order followed by an exparte decree.

23. Now let us consider whether the first defendant has raised any ground in the first appeal challenging the merits of the exparte decree. Ground No.14 reads as follows:

“14. The Lower Court ought to have found that description of property is wrong and misleading.”

24. Apart from the above said vague ground that the description of the property is wrong and misleading, no other ground has been raised by the first defendant before the First Appellate Court challenging the merits of the exparte decree. Ground Nos.16 to 20 have been raised challenging the order of the trial Court setting the first defendant as exparte and passing of the exparte decree. The first defendant in the grounds of appeal has prayed that the appeal may be allowed and the same may be remitted back to the Lower Court for fresh disposal after giving an opportunity to the defendant to file a written statement and adduce evidence.

25. A reading of the memorandum of grounds and the prayer in the grounds of appeal will clearly indicate that the first defendant has not challenged the exparte decree on merits but has only challenged the order of the trial Court setting him exparte and the reasons for his non appearance which resulted in an exparte decree.

26. In the light of the above said discussion, especially in the absence of a written statement by the first defendant, the First Appellate Court has grossly erred in considering the boundary recital and the dispute with regard to the lie and location of the suit schedule properties. The appellant/plaintiff in the suit has been taken by surprise by the First Appellate Court by considering the exparte decree on merits without the plaintiff being put on notice.

27. Order 41 Rule 2 of C.P.C., reads as follows:

“Grounds which may be taken in appeal:- The appellant shall not, except by leave of the Court, urge or be heard in support of any ground of objection not set forth in the memorandum of appeal; but the Appellate Court, in deciding the appeal, shall not be confined to the grounds of objections set forth in the memorandum of appeal or taken by leave of the Court under this rule;”

28. A careful perusal of the above said rule will clearly indicate that the appellant will not be entitled to raise any ground which was not set forth in the memorandum of appeal. However, after obtaining leave of the Court, the appellant shall be entitled to raise any ground that is not set fort in the memorandum of grounds. The proviso to the above rule limits the power of the First Appellate Court to the effect that the First Appellate Court shall not rest its decision on any other ground unless the party who may be affected thereby has had a sufficient opportunity of contesting the case on that ground.

29. In the present case as discussed earlier, except the vague ground in Ground No.14, no other ground was raised with regard to the lie and location or boundary recital of the suit schedule property. All the other grounds set forth in the memorandum of grounds of appeal were challenging the exparte order and not providing an opportunity to the defendant to defend the suit. However, the First Appellate Court has proceeded to rest its decision on a ground that was not set forth in the memorandum of grounds of appeal, especially when the first defendant not even filed a written statement. In fact, the first defendant has prayed for setting aside the judgment and decree of the trial Court and remit the same back to the trial Court to give an opportunity to the defendant to file a written statement and adduce evidence. But, the First Appellate Court has set aside the judgment and decree of the trial Court and dismissed the suit filed by the plaintiff on a ground that was not even set forth in the memorandum of grounds of appeal.

30. The defendant who suffered an exparte decree before the trial Court is entitled to file a statutory appeal under

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Section 96(2) of C.P.C., However, the scope of the said appeal cannot be as wide as an appeal filed under Section 96(1) of C.P.C., The First Appellate Court while dealing with an appeal under Section 96(2) of C.P.C, may not be entitled to re-interpret the documents or re-appreciate the oral evidence on the side of the plaintiff especially when the defendant had not even filed a written statement. The First Appellate Court will be entitled to consider the merits of the exparte decree only with regard to the legality of the trial Court decree on the basis of the pleadings and evidence produced by the plaintiff. 31. In the present case, the First Appellate Court has chosen to re-appreciate the oral and documentary evidence and has chosen to reject the commissioner's report without any ground having been set forth in the memorandum of grounds of appeal filed by the first defendant. 32. In view of the above said discussions, the substantial questions of law are answered as follows: (1). The First Appellate Court has committed a serious error in law in misconstruing and misinterpreting the boundary recitals to the documentary evidence marked under Exhibits A2 to A4 and A7. (2). The First Appellate Court had erred in holding that the suit is not maintainable without the relief of declaration of title when the same has not been challenged by the defendant by filing a written statement or raised as a ground in the memo of grounds of first appeal. 33. In view of the above said discussion, both the substantial questions of law are answered in favour of the appellant. The judgment and decree of the First Appellate Court are set aside. The judgment and decree of the trial court are restored. The second appeal is allowed. No costs. Consequently, connected miscellaneous petition is closed.
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