Arif Nisa vs Abdul Mutalif

Honourable Mr. Justice M. Venugopal

The Petitioner/Plaintiff has filed the instant Civil Revision Petition as against the order dated 29.09.2009 in I.A. No. 413 of 2009 in O.S. No.

289 of 2008 passed by the Learned Principal District Munsif, Erode. The Learned Principal District Munsif, while passing orders in I.A. No. 413

of 2009 in O.S. No. 289 of 2008 on 29.09.2009, has, among other things, observed in para 14 to the effect that ''.... In the case on hand, this

Court already has come to the conclusion that the Petitioner was not served with the summons and he came to know about the decree only on

27.05.2009 etc.'', and resultantly, allowed the application without costs.

It is not in dispute that the Respondent/Defendant filed I.A. No. 413 of 2009 in O.S. No. 289 of 2008 on the file of the Learned Principal

District Munsif, Erode praying for an issuance of an order by the Court in setting aside the Exparte Decree dated 21.07.2008 and to provide him

an opportunity to defend the main action to expose the falsities of the aforesaid case.

A detailed counter has been filed by the Petitioner/Plaintiff (figuring as Respondent before the trial Court).

On going through the order passed by the trial Court in I.A. No. 413 of 2009 in O.S. No. 289 of 2008, this Court observes that the trial Court,

in paragraph 12 of its order, has, among other things, mentioned that ''... In view of the above submissions made on either side, while perusing the

case records, the alleged summons and the notice issued to the petitioner through court were found missing. Therefore, this Court could not come

to the conclusion that the summons issued by the Court were originally served upon the Petitioner''. Strangely, the trial Court, in paragraph 14 of its

order in I.A. No. 413 of 2009, has categorically held that ''... In the case on hand, this Court has already come to the conclusion that the Petitioner

was not served with the summons and he came to know about the decree only on 27.05.2009 etc.,''.

At this stage, this Court pertinently points out that the trial Court, in paragraph 6 of its order under the caption ''POINT'', has specifically held

that ''... When the case was posted for the appearance of the Petitioner on 25.06.2008, the office endorsed in the Notes Paper that the Petitioner

was served. Therefore, this Court was pleased to call the Petitioner and set him exparte on the same day''. When the summons and the notice

issued to the Respondent/Defendant were found missing from the Court, it passes beyond one''s comprehension as to how the Learned Principal

District Munsif had opined that already this Court came to the conclusion that the Petitioner was not served with the summons.

The observation of the trial Court, in paragraph 12 of its order that ''In view of the submissions made on either side, while perusing the case

records, the alleged summons and the notice issued to the Petitioner through Court were found missing and therefore, this Court could not come to

the conclusion that the summons issued by the Court were originally served upon the Petitioner'', is diametrically opposite to the view taken by it at

the last paragraph in para 14.

To put it succinctly, there is no clarity of thought and application of mind by the Learned Principal District Munsif, while allowing I.A. No. 413

of 2009 in O.S. No. 289 of 2008. Therefore, to prevent an aberration of justice, this Court, on this short ground alone and without delving deep

into the merits of the matter, allows the Civil Revision Petition, by setting aside the order in I.A. No. 413 of 2009 in O.S. No. 289 of 2008 dated

29.09.2009 passed by the Learned Principal District Munsif, Erode, in the interest of justice.

In para 16 of the order in I.A. No. 413 of 2009 in O.S. No. 289 of 2008, the trial Court has directed the office to the person responsible for

the records, calling for explanation regarding the missing of the served summons and notice issued to the Respondent/Petitioner/Defendant.

Therefore, this Court, on the basis of Equity, Fair Play and Good Conscience and even as a matter of prudence, directs the trial Court to proceed

with the initiation of disciplinary proceedings to its logical conclusion as it deem fit and proper in the subject matter in issue (if not already

proceeded with earlier). In the result, the Civil Revision Petition is allowed, leaving the parties to bear their own costs. The order passed by the

trial Court in I.A. No. 413 of 2009 in O.S.No. 289 of 2008 dated 29.09.2009 is set aside by this Court for the reasons assigned in this Revision.

The trial Court is directed to decide I.A. No. 413 of 2009 afresh on merits dispassionately and after applying its process of judicial thinking mind

and to pass appropriate orders within a period of four weeks from the date of receipt of copy of this order. Consequently, connected

Miscellaneous Petition is closed.