North Arcot District Vanniyakula v. M.Radhakrishnan

O R D E R This Civil Revision Petition has been filed seeking for a direction to the Subordinate Court, Ranipet, Vellore District, for early numbering of E.A.No.....of 2023 in E.P.No.60 of 203 in V.S.C.O.S.No.136 of 2010.

¶2It is the case of the petitioner that the petitioner had filed an application under Order 21 and Rule 90 of CPC, in E.P.No.60 of 2013 in V.S.C.O.S.No.136 of 2010 for setting aside the Court auction sale, whereas, the learned Judge without numbering the petition and hearing the case on merits had returned it on several occasions with an endorsement "how this petition is maintainable" and that despite complying with the returns, the learned Judge had not heard the case on merits. Thereby, the present civil revision petition has been filed.

¶3Learned counsel for the petitioner submitted that when the Court chooses to return the petition after one return, the Court should post the matter in the open court and invite the arguments of the counsel on the question of maintainability and thereafter pass a judicial order, whereas, the learned trial Judge without passing a judicial order had been repeatedly returning the petition on the ground of maintainability, despite its compliance which is not a fair procedure. Thereby, the learned counsel for the petitioner seek that the learned Judge may be either directed to number the petition or hear the arguments of the counsel on the question of maintainability and thereafter, pass the judicial order. In support of his contention, he relied on the judgment passed in Umasankar vs. R.Sankaranarayanan and others reported in (2023) 1 LW 90.

¶4Heard the learned counsel for the petitioner and perused the materials available on record.

¶5On perusal of records, it is seen that the the petitioner has filed an application in E.A.No....of 2023 for setting aside the Court auction sale, in E.P.No.60 of 203 in V.S.C.O.S.No.136 of 2010 on the file of the Subordinate Court, Ranipet, Vellore District and it was returned on 15.09.2023 with an endorsement 'how this petition is maintainable to be explained' and subsequently, the counsel had represented the same with reasons, however, the learned trial Judge without hearing the matter with regard to the maintainability, had repeatedly return the papers with endorsement "how this petition is maintainable" on various dates. The returns and the representation made by the learned counsel for the petitioner before the execution Court are as follows :-

¶6In the decision relied on by the petitioner, it has been held that after one return, the Court should post the matter in the open Court and invite the arguments of the counsel on the question of maintainability and thereafter, pass a judicial order. The relevant paragraph is extracted hereunder :- " 7. In the decision relied upon by the learned Counsel for the petitioner in Selvaraj's case (supra), this Court, following the decision in S.Parameswari v. Denis Lourdusamy [(2011) 5 CTC 742], held that after one return, the Court should post the matter in the open Court and invite the arguments of the Counsel on the question of maintainability and thereafter, pass a judicial order. The duty to hear before a decision is made constitutes the soul of procedural fairness inbuilt in the Civil Procedure Code and cannot be compromised. The relevant portion from the said decision is extracted as follows:- "30. In S. Parameswari v. Denis Lourdusamy, [(2011) 5 CTC 742], this Court had held that after one return, the Court should post the matter in open Court, and invited arguments of the counsel on the question of maintainability and pass a judicial order. If the objection is upheld, the aggrieved party could work out his/her rights. In Muthuganesah v. Thillaimani, [2016-2- LW 340], this Court had pointed out: "3.The court, while admitting the plaint, can scrutinise the other aspects, namely the cause of action, valuation, payment of court fee, jurisdiction and limitation. The court can also verify whether the plaint has been filed in the proper form and whether the necessary requirements of plaint have been complied with. The question as to whether any other person should have been made a party is outside the purview of the scrutiny of the trial court at the time of admitting the plaint. The above said aspects are with reference to the merits of the return made by the trial court.

¶4Once certain defects are pointed out by the court and the plaint is returned and the plaintiff or plaintiffs, re-present the same stating that the plaint has been properly prepared and filed and asking the court to hear regarding the necessity to comply with the returns made by the court, the court can return the plaint provided its view that the compliance with the returns are mandatory and it is conceded by the plaintiff. If the plaintiff makes it clear that he is not prepared to comply with the returns and the plaint as filed by him should be taken on file, the trial court should reject the plaint rather than returning the plaint stating the very same reason." This Court only adds a rider to it: In all cases where the Court chooses to reject the plaint for not curing the defects mentioned (which may include the issue on exclusion of jurisdiction) it is necessary for the Court to follow the dictum in S. Parameswari v. Denis Lourdusamy, [(2011) 5 CTC 742] and post the matter before Court, with or without the request of the plaintiff or the counsel concerned, and hear them. The duty to hear before a decision is made constitutes the soul of procedural fairness inbuilt in the Civil Procedure Code, and cannot be compromised." Therefore, the Execution Court ought to have listed the matter in the Open Court and heard the arguments of the petitioner's Counsel on the question of maintainability."

¶7In view of the above, the learned trial Judge is directed to post the matter before the Court and hear the arguments of the petitioner's counsel on the question of maintainability and pass orders on merits within a period of two weeks from the date of making such arguments.

¶8With the above direction, the Civil Revision Petition stands ordered. Consequently, connected miscellaneous petition is also closed. No costs.

06.08.2024 Index : Yes / No ham Note : Registry is directed to return the original papers to the counsel for the petitioner forthwith to enable him to represent before the trial Court. To The Subordinate Court, Ranipet, Vellore District.

A.D.JAGADISH CHANDIRA, J. ham and C.M.P.No.15629 of 2024

06.08.2024

IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 06.08.2024 CORAM : THE HONOURABLE MR. JUSTICE A.D.JAGADISH CHANDIRA and C.M.P.No.15629 of 2024 North Arcot District Vanniyakula Kshatriya Sangam, Rep. by its present Secretary, M.Subramaniam. ... Petitioner Vs 1. M.Radhakrishnan 2. Aravindan ... Respondents PRAYER : Civil Revision Petition filed under Article 227 of the Constitution of India, pleased to issue appropriate direction for early numbering of E.A.No....of 2023 in E.P.No.60 of 203 in V.S.C.O.S.No.136 of 2010 on the file of the Subordinate Court, Ranipet, Vellore District. For Petitioner : Mr.T.R.Rajaraman