S.K. Ameer John vs Executive Officer, Sri Sapthareeswaraswamy Devasthanam and 2 others

Janarthanam, J.—The revision petitioner is the plaintiff; while respondents were defendants in the suit. The suit property (Shop No. 89) is

situate in village in Inam Dry S.F. No. 131/3, of Sirudhaiyur Village, Lalgudy Taluk, Tiruchirappalli District. It belongs to Arulmighu

Sapthareeswaraswamy Devasthanam, Lalgudy (second defendant). The plaintiff filed the suit in O. S. No. 1413 of 1985 on the file of Principal

District Munsif, Tiruchirappalli, for declaration of his status as the tenant of the suit property and for consequential permanent injunction restraining

the first defendant-Devasthanam from effecting any change in the tenancy agreement with regard to the suit property in favour of the second or

third defendant or any other person on their behalf, till the disposal of the suit on merits.

The plaintiff would claim that he became a tenant of the suit property in the year 1969 on payment of rent at a specified rate of amount and he

continued to be so, as a tenant. Between the period February, 1979 and February, 1980, he was on pilgrimage tour and during such time, the suit

property was entrusted to the custody of the second defendant, who is none else than his cousin-brother and he was directed to pay the rent to the

suit property on his behalf. The further claim made is that the second defendant is now trying to claim tenancy rights in respect of the suit property

and above all, the third defendant is also attempting to become a tenant of the suit property with the help of the second defendant.

Subsequent to the filing of the suit and service of summons, the first defendant, despite so much of opportunities having been given, for filing

written statement, has not filed any written statement and consequently, it was set ex-parte. Defendants 2 and 3 alone contested the suit and the

trial is pending.

In such a situation, the plaintiff filed I. A. No. 607 of 1993 praying for passing of a decree against the first defendant under the salient provisions

of adumbrated under Order 8, Rule 10 and Order 15, Rule 2 of the CPC 1908 (for short ''CPC''). For such a relief, it appears the plaintiff, though

impleaded the defendants as parties, did not give notice at all to them; but invited the Court below to pass an order on the petition so filed. In

support of the stand so taken, implicit reliance has also been placed by the plaintiff upon the decision in Janakiraman v. The Director of State

Lotteries, Tamil Nadu, Madras (1991 (I) MLJ 210)

Learned District Munsif, after considering the arguments of Learned Counsel for the plaintiff, however, dismissed the application, thereby

refusing to pass ex-parte decree as prayed for against the first defendant. The aggrieved plaintiff came forward with the present action. He also

filed CMP No. 9960 of 1994 for stay of all further proceedings in the suit before the Court below, pending disposal of the revision.

No doubt true it is that the plaintiff has impleaded defendants 1 to 3 as respondents 1 to 3 in this revision petition. However, it has been

mentioned in the cause title thus:

(Respondents 2 & 3 given up) Not necessary party in CRP.

Even at the outset, I may state that there are absolutely no merits for the entertainment of this revision petition. Order 8, Rule 10, CPC dealing

with the procedure when the party failed to present written statement called for by Court, prescribes,

Where any party from whom a written statement is required under rule 1 or Rule 9 tails to present the same within the time permitted or fixed by

the Court, as the case may be, the Court shall pronounce judgment against him, or make such order in relation to the suit as it thinks fit, and on the

pronouncement of such judgment, a decree shall be drawn up.

Order 15, Rule 2, PC deals with the situation of one of several defendants not at issue and the same is reflected as below:

(1) Where there are more defendants than one, and any one of the defendants is not at issue with the plaintiff on any question of law or of fact, the

Court may at once pronounce judgment for or against such defendant and the suit shall proceed only against the other defendants.

(2) Whenever a judgment is pronounced under this rule, a decree shall be drawn up in accordance with such judgment and the decree shall bear

the date on which the judgment was pronounced.

A conjoint reading of the salient provisions adumbrated under Order 8, Rule 10, and Order 15, Rule 2, CPC reveals, in unmistakable terms,

that no mandate is cast upon the Court to pronounce a judgment at once for or against a defendant, who is not at issue with the plaintiff on any

question or law or fact. To put it otherwise, a discretion is given to the Court to pronounce judgment at once or at the fag end of the trial,

depending upon the facts and circumstances of each case.

The decision relied upon by Learned Counsel for the petitioner cannot be stated to be of any help to advance his case, inasmuch as the said

decision also really reflects the provisions of the aforesaid Orders by stating that under the provisions of Order 8, Rule 10 and Order 15, Rule 2,

CPC, in a case where there are more defendants than one and there is no issue of fact or law arising between the plaintiff and one of such

defendants, as in that case, when the first defendant was set ex-parte, it would be a matter for the court to consider whether on the facts and

circumstances of the case, it could exercise its powers under Order 15 Rule 2, CPC and pass a decree ex-parte against such defendants

immediately.

In the case on hand, in respect of the suit property belonging to the first defendant landlord, the right of tenancy in relation to the property had

been claimed by the plaintiff as well as defendants 2 and 3. The suit itself is for a declaration of tenancy rights in favour of the plaintiff and for

consequential injunction restraining the first defendant, or any other person on its behalf from making; or effecting any change in the tenancy

arrangement with regard to the suit property in favour of either the second defendant or the third defendant or any other person on their behalf, till

the disposal of the suit on merits, and when the landlord-first defendant remained ex- parte, asking for a decree ex-parte as against it, solely on the

ground of it being ex-parte, is likely to spell out disastrous consequences and such a decree in the peculiar facts and circumstances cannot at all be

passed the moment the landlord-first defendant remained ex-parte, when especially defendants 2 and 3 are contesting the claim of the plaintiff in

the suit, in which a relief against them is also prayed for. The revision petition, as such, deserves to be dismissed even at the admission stage and

accordingly, the same is dismissed. Consequently, CMP is also dismissed.