Sivajirajan vs Soroobarani & Ors

This Civil Revision Petition has been filed challenging the order passed by the learned Subordinate Judge, Kovilpatti in I.A.No.431 of 2014 in

I.A.No. 293 of 2013 in O.S.No.67 of 2013 dated 28.08.2015.

The fact of the case is that the respondents 1 & 2 have instituted a suit in O.S.No.67 of 2013, for the relief of partition and separate possession

of their alleged 2/6th share in the suit property, wherein, the petitioner herein is the 1st defendant. According to the petitioner/1st defendant, the

said suit was not maintainable, as per Order VII Rule 11(d) of the Code of Civil Procedure and therefore, he has filed an interlocutory application

in I.A.No.293 of 2013, to reject the plaint, which was allowed, thereby, the plaint was rejected. Thereafter, the respondents 1 & 2/plaintiffs have

filed an interlocutory application in I.A.No.431 of 2014 in I.A.No.293 of 2013 in O.S.No.67 of 2013, seeking to re-call the order passed in

I.A.No.293 of 2013 in O.S.No.67 of 2013 and the same was allowed, as prayed for. Aggrieved over the same, the petitioner/1st defendant is

before this Court.

The learned Counsel for the petitioner would submit that he has filed the said I.A.No.293 of 2013, wherein, notice was duly served to the

respondents 1 & 2/plaintiffs, who, in turn, took time for filing counter. In fact, the trial Court has granted several adjournments for the purpose of

filing counter, i.e., nearly on 9 occasions. As they failed to file their counter, the lower Court has passed an order ""Counter not filed. Petition

allowed.

He would further submit that in view of this order, the plaint was rejected and decree was drafted. If at all, the plaintiffs are aggrieved by this

order, they have to prefer an appeal, but, they have filed another interlocutory application in I.A.No.431 of 2014 seeking to set aside the order

dated 24.11.2014, passed in I.A.No.293 of 2013 and the lower Court has erred in allowing the same. Therefore, he seeks interference of this

Court, for dismissing the impugned order.

Per contra, the learned Counsel appearing for the respondents 1 & 2 / plaintiffs would submit that they have filed the suit in O.S.No.67 of 2013

and before the lower Court, the first defendant/petitioner herein alone contested and all the other defendants/respondents 3 to 9 herein sailed along

with the plaintiffs. The unserved respondents in the suit were set exparte, who, in turn filed several I.A.s., to set aside the ex-parte.

It was, at this juncture, when the plaintiffs/respondents 1 & 2 sought time for filing counter in I.A.No.293 of 2013, which was filed by the

petitioner/1st defendant on the ground of ''Pecuniary Jurisdiction'', the lower Court, with an impression that I.A.No.293 of 2013 was filed to set

aside the ex-parte, has refused to grant time and passed an one line order ""Counter not filed. Petition allowed"", without going into the merits of the

case.

This was brought to the knowledge of the Court by filing I.A.No.431 of 2014 and the lower Court has posted the matter for clarification. After

hearing both the sides, the present clarificatory order dated 28.08.2015, came to be passed, revoking the earlier order dated 24.11.2014 passed

in I.A.No.293 of 2013. Therefore, he prays for dismissal of this revision.

Heard the learned Counsel appearing for the respective parties and perused the documents placed on record. There is no representation for the

respondents 3 to 9.

A perusal of the records would amply prove the case of the respondents 1 & 2. The lower Court has not passed a detailed order on merits, but,

by mistake has passed an one line order ""Counter not filed. Petition allowed"". This was rightly brought to the knowledge of the Court below.

It is also seen from the records that similar to O.S.No.67 of 2013, the plaintiffs have filed another suit in O.S.No.296 of 2013, wherein, the

petitioner herein/1st defendant has filed an interlocutory application in I.A.No.529 of 2014 for rejection of plaint, which was dismissed by the very

same learned Judge, on merits.

Among other points, the main point urged by the learned Counsel for the petitioner is that the provision left open to the respondents 1 & 2, if

they are aggrieved by the order dated 24.11.2014, is an appeal and not revision. According to this Court, this particular point is very well

answered by the lower Court itself, in its order dated 28.08.2015 in I.A.No.431 of 2014 and the relevant portion reads thus, ""VERNACULR

MATTER OMITTED

The Principle actus curiae neminem gravabit should be applied to present case on hand and the fault of the Court shall prejudice no one, since

it would affect the rights of the parties in contesting the matter on merits.

The Hon''ble Apex Court in the case of Master Construction Co. (P) Ltd. Vs. State of Orissa, reported in AIR 1966 SC 1047, has held as

follows:

..it was observed that the arithmetical mistake is a mistake of calculation, a clerical mistake is a mistake in writing or typing whereas

an error arising out of or occurring from accidental slip or omission is an error due to careless mistake on the part of the Court liable

to be corrected. To illustrate this point it was said that in a case where the order contains something which is not mentioned in the

decree, it would be a case of unintentional omission or mistake as the mistake or omission is attributable to the Court which may say

something or omit to say something which it did not intent to say or omit. No new arguments or rearguments on merits can be

entertained to facilitate such rectification of mistakes.

In view of the foregoing discussions and taking into account that the above cited judgment squarely applies to the present case on hand, I am

of the considered view that the civil revision petition is liable to be dismissed.

In result, this Civil Revision Petition is dismissed. No costs. However, taking into account that the suit is of the year 2013, the learned

Subordinate Judge, Kovilpatti is directed to dispose of the suit within a period of six months from the date of receipt of a copy of this order.

Consequently, connected miscellaneous petition is closed.