J. Prema vs M. Jeyanthi

M. Duraiswamy, J.—C.R.P.No. 794 of 2013:Challenging the fair and final order passed in I.A.No. 184 of 2012 in H.M.O.P.No. 21 of 1998 on the file of the Sub-Court, Aruppukkottai, a third party to the proceedings has filed the above Civil Revision Petition. C.R.P.No. 795 of 2013:This Civil Revision Petition arises out of the order passed in H.M.O.P.No. 127 of 2012 on the file of the Sub-Court, Aruppukkottai. Therein also, the third party has filed the Civil Revision Petition.

It is the case of the revision petitioner that one Jeyaprakash filed a petition in H.M.O.P.No. 127 of 2012 for divorce as against the first respondent herein. The said petition was ordered ex-parte on 01.08.1998. Thereafter, according to the revision petitioner, she married the said Jeyaprakash on 02.03.2006. The said Jeyaprakash had died on 24.10.2011. Thereafter, on 29.11.2011, the first respondent herein filed an application in I.A.No. 184 of 2012 to set aside the ex-parte order of divorce granted on 01.08.1998. Admittedly, the said application was filed after the death of the said Jeyaprakash.

On a perusal of the said application, it is clear that the first respondent has filed the petition showing the deceased Jeyaprakash as the respondent. When the said Jeyaprakash had died on 24.10.2011, the first respondent should have filed the application impleading the legal heirs of the deceased Jeyaprakash. But she has not done so. However, the Sub-Court, Aruppukkottai, without taking into consideration that the respondent had died and that his legal representatives were not impleaded in the application, wrongly allowed the application and set aside the ex-parte order of divorce granted on 01.08.1998, also, simultaneously dismissed the original application in H.M.O.P.No. 127 of 2012. Further, on a perusal of the fair order passed in H.M.O.P.No. 127 of 2012, it could be seen that the trial court had dismissed the original petition on the ground that the ex-parte order of divorce was set aside by the trial court on 10.10.2012. The prayer sought for in I.A.No. 184 of 2012 was to set aside the ex-parte order passed in H.M.O.P.No. 21 of 1998 on 01.08.1998. That being the case, even if the said application is allowed, the trial court cannot consequently dismiss the original petition stating that since the ex-parte order was set aside, therefore, the original petition itself is liable to be dismissed.

In the judgment reported in 1997 (2) MLJ Pg.4, (Smt.Yallawwa Vs Smt.Shantavva), the Honourable Apex court held that in similar circumstances, if an application is filed under Order 9 Rule 13 of the Civil Procedure Code, the proceedings can be continued against the legal heirs or the deceased spouse, who may be interested in supporting the decree of divorce passed against the aggrieved spouse.

The ratio laid down in the said judgment squarely applies to the facts and circumstances of the present case. Therefore, the first respondent should have impleaded the legal heirs of the deceased Jeyaprakash at the time of the filing of the application in I.A.No. 184 of 2012. The trial court also committed an error in allowing the application without impleading the legal heirs of the deceased.

It is also brought to the notice of this Court that the revision petitioner has filed a suit in O.S.No. 338 of 2011 on the file of the District Munsif Court, Aruppukottai for declaration to declare herself and daughter of the first respondent herein as the legal heirs of the deceased Jeyaprakash. According to the learned counsel on either side, the said suit is pending adjudication. For the reasons stated above and also applying the ratio laid down in 1997 (2) MLJ Pg.4, the fair and final orders passed by the Sub-Court, Aruppukkottai are liable to be set aside. Accordingly, fair and final orders in I.A.No. 184 of 2012 in H.M.O.P.No. 21 of 1998 and H.M.O.P.No. 127 of 2012 are set aside and the matter is remanded back to the Sub-Court, Aruppukkottai for fresh disposal on merits and in accordance with law. After remand, the first respondent shall file an application before the Sub-Court, Aruppukottai for impleading the legal heirs of the deceased Jeyaprakash, including the revision petitioner, for which the other parties have no objection. On impleading the legal heirs of the deceased Jeyaprakash, the trial court shall take up the matter for fresh disposal and decide the same on merits and in accordance with law.

The learned counsel on either side also represented that the District Munsif, Aruppukottai may also be directed to dispose of the suit in O.S.No. 338 of 2011 within a stipulated time. The learned counsel on either side also represented that the defendants have filed a written statement in that suit.

Having regard to the submissions made on either side, the District Munsif, Aruppukottai is directed to dispose of O.S.No. 338 of 2011 on merits and in accordance with law within a period of three months from the date of receipt of a copy of this order.

With these observations, these Civil Revision Petitions are allowed. There shall be no order as to costs. Consequently, connected miscellaneous petitions M.P.(md).Nos. 2 and 2 of 2014 are closed.