S. Parameswari and Samson vs Denis Lourdusamy, rep. by Power Agent

V. Ramasubramanian, J.—Both these Civil Revision Petitions arise out of the repeated returns made by the I Additional District Munsif Court, Salem, on two Applications filed by the Petitioner, one under Order 9, Rule 13, C.P.C., and another u/s 5 of the Limitation Act. Heard Kr. J. Sudhakaran, learned Counsel for the Petitioners and Mrs. J.B. Abitha Banu, learned Counsel for the Respondent.

The Respondent filed a Suit in O.S. No. 624 of 2008 on the file of the I Additional District Munsif Court, Salem, against the Petitioners, seeking a decree of permanent injunction. Since the Petitioners did not appear at the time when the case was posted for evidence on the side of the Defendants, they were set ex parte. Subsequently, an Application for setting aside the ex parte order was allowed. Thereafter, the Petitioners were again set ex parte. A decree was also passed by the Court below on 1.12.2010, on the basis of the evidence let in by the Plaintiff. The Court has suo motu marked four documents on the side of the Defendants. I do not know under what provision of law, the Court below marked four documents on the side of the Defendants, after having set the Defendants ex parte.

Thereafter, the Petitioners filed two Applications in I.A. SR. Nos. 1225 & 1226 of 2011, the former u/s 5 of the Limitation Act and the latter under Order 9, Rule 13, C.P.C. Both these Applications were returned by the Court below on 26.4.2011, asking the Petitioners to explain how the Petitions are maintainable, after Judgment had been pronounced on merits. The Petitioners re-presented the Petition, citing a few Judgments of this Court and of the Allahabad High Court. Again, the Court below returned the papers on 13.6.2011 asking the Petitioners to explain how the Petitions are maintainable. The Petitioners originally had an idea of re-presenting them on 23.6.2011. But, they changed their mind and filed the above Revisions, challenging the action of the Court below in repeatedly returning the papers.

The learned Counsel on both sides relied upon the decisions arising under Order 17, Rule 2, C.P.C. But, I do not think that the stage has arisen for this Court to go into the question as to whether the Judgment in the Suit could be taken to be a Judgment under Order 17, Rule 2, C.P.C. or not. In cases where the Courts below express doubts about the maintainability of the Applications filed before them, the Courts should, after one return, post the matter in open Court, request the Counsel to argue on the question of maintainability and pass a judicial order. Though the orders of return are also signed by the Judicial Officers, they are more in the nature of quasi-judicial orders, since the Counsel is not heard on the question of maintainability at that stage. Therefore, both those Revisions are disposed of, directing the Petitioners to re-present the papers in I.A. SR. Nos. 1225 & 1226 of 2011, within ten days from the date of receipt of a copy of this order and on receipt of the original papers presented before this Court. Upon the Petitioners representing those papers, the Court below shall call the Applications in the open Court, give an opportunity of hearing to both parties, consider all the decisions relied upon by both parties and pass a judicial order, on the question of maintainability. In the event of the Court below ultimately coming to the conclusion that the Applications are maintainable, then the Court shall number the Applications and take them up for hearing. Otherwise, it is open to the Petitioners to work out their remedies. The issue of maintainability shall be decided by the Court below within a period of two weeks from the date of re-presentation of the papers by the Petitioners. There shall be no order as to costs. Consequently, M.P. Nos. 1 of 2011 in both the Revision Petitions are also dismissed.