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Judgment
G. Rajasuria, J.—Animadverting upon the order dated 5.7.2010 passed by the I Assistant, City Civil Court, (Wakf Tribunal), Madras, in
I.A. No. 4564 of 2010 in O.S. No. 4555 of 2000, this civil revision petition is focussed.
Heard both sides.
The germane facts absolutely necessary for the disposal of this revision petition would run thus:
(i) One Nawab Zada Nawab Ali Khan-the first respondent herein originally filed the suit O.S. No. 4555 of 2000, seeking various reliefs as against
the Wakf Board and the revision petitioner herein.
(ii) Earlier the matter was disposed of, as against which C.R.P. No. 1717 of 2003 was filed before this Court and the matter was remitted back to
the lower Court with the following directions:
Accordingly, the civil revision petition is allowed, the judgment and decree of the I Assistant Judge, City Civil Court, Chennai in O.S. No.
4555 of 2000, dated 26.2.2003, is set aside and the suit remanded back to the trial Court for a fresh consideration. It will be open to the parties
to seek amendment of the pleadings, if necessary and adduce additional evidence. There will be no order as to costs.
(iii) Indubitably and indisputably additional evidence was adduced by recalling P.W.1. However, he was not cross-examined by the defendants.
Whereupon, the Court passed the order on 24.2.2010.
(iv) Subsequently, treating the said order as an ex-parte order, D2 filed the A. No. 4564 of 2010 under Order 9 Rule 13 of C.P.C. to get set
aside the ex-parte judgment and decree. However, the lower Court vide the order dated 5.7.2010 dismissed the said application on the main
ground that it was not an ex-parte one.
Being aggrieved by and dis-satisfied with the said order, this civil revision petition has been filed by the 2nd defendant.
The learned Senior Counsel for the revision petitioner/2nd defendant placing reliance on the grounds of revision would advance her arguments,
the pith and marrow of them would run thus:
(i) The lower Court was not justified in simply dismissing the A. No. 4564 of 2010 filed under Order 9 Rule 13 of CPC, because the order
24.2.2010 passed in O.S. No. 4555 of 2000 was not an order passed on merits after hearing both sides, but in stricto senso, it was only an ex-
parte order.
(ii) The lower Court was wrong in assuming and presuming as though written arguments were submitted and whereupon alone the order was
passed by the Court on 24.2.2010.
The learned Senior Counsel also would explain and expound that on the earlier occasion, perhaps, written arguments had been filed, but
subsequently revision was filed before this Court and this Court was pleased to set aside the decree passed earlier and remitted the matter back to
the trial Court for taking further evidence and for passing judgment on merits after hearing both sides. As such, after remand no written arguments
were filed.
Over and above that, the learned Senior Counsel would highlight and spotlight the fact that on the date of passing of the judgment in the suit i.e.
on 24.2.2010, as usual the revision petitioner herein and their advocate were of the view that only at 2.00 p.m. the learned Judge would be sitting
and taking up the matter, but on the other hand, to their shock and dismay, even behind their back at 12.00 noon on 24.2.2010 the matter, it
appears, was taken up by the Judge concerned and such ex-parte judgment was passed. Accordingly, the learned Senior Counsel for the revision
petitioner/D2 prays for setting aside the judgment dated 24.2.2010 by allowing the I.A. No. 4564 of 2010 filed under Order 9 Rule 13 of C.P.C.
Per contra, the learned Senior Counsel for the respondents/plaintiffs, by way of torpedoing and pulverising the arguments as put forth and set
forth on the side of the revision petitioner/D2 would submit that there is absolutely nothing wrong in the order passed by the lower Court on
24.2.2010 for the reason that on several hearings, P.W.1, who was examined further in chief was not cross-examined and that the defendants did
not make use of the opportunity given to them by the trial Court as per the direction of this Honourable Court and in such a case, it would not lie in
the mouth of the revision petitioner/D2 to accuse the Court as though the matter was taken up earlier then it was normally expected to be taken
etc.
The point for consideration is as to whether there is any justification for setting aside the order dated 5.7.2010 passed in I.A. No. 4564 of 2010
and allow the said I.A. by way of setting aside the judgment dated 24.2.2010 passed in O.S. No. 4555 of 2000?
A mere poring over and perusal of the dates and events as furnished on the side of the Learned Counsel for the revision petitioner/D2, which is
extracted hereunder:
S. No. Date Particulars
25 16.2.2010 P.W.1 present call on 17.2.2010
26 27.2.2010 PW1 cross. Hence Cross of D1 is recorded
nil
27 22.2.2010 P.W.1 Cross continuation. P.W.1 present
I.A. is represented call on 23.2.2010
28 23.2.2010 P.W.1 present. D2 called absent. No
representation made. Hence, cross of
P.W.1 if needed on 24.2.2010
29 24.2.2010 OS No. 4555 of 2000 P.W.1 cross. P.W.1
present. D1 and D2 called absent. No
representations made D1 and D2 not
ready for cross examination after
direction by the Hon''ble High Court to
dispose the suit within 4 months. As the
P.W.1 is present and the defendants are
not evincing interest in pursuing the
matter further and both D1 and D2 not
present and called absent. The cross of
P.W.1 is not taken as they fail to cross.
Hence, suit documents Ex.A1 to A19
perused and satisfied and hence it is
founded that the defendants when not
getting ready and the suit is desired to
proceed under Order 17 Rule 2 and 3 of
C.P.C. and the suit is decreed by declaring
the suit property are not Wakf property
and consequently directing the 1st
defendant to be notify the suit property
from the proforma schedule of the
property of the second defendant.
IA.S.R. 8353 of 2010 returned time one
month.
30 25.2.2010 I.A.4564/2010 to set aside the ex parte
decree fined by the revision petitioner.
31 25.2.2010 Regular judge posted for the Wakf
tribunal take up the matter and the in-
charge Judge went on leave.
32 5.3.2010 Stay obtained by the revision petition in
I.A. No. 4565 of 2010.
33 5.7.2010 Order passed in I.A. No. 4564 of 2010
would reveal that on 22.2.2010 I.A. was filed by a third party and the matter was posted on 23.2.2010. But on that day it was endorsed as
''further cross nil'' for P.W.1.
The learned Senior Counsel for the revision petitioner/D2 would submit that on 23.2.2010 even though the Counsel for the revision petitioner
was present and ready to cross-examine P.W.1, the matter was not taken up and it was posted on 24.2.2010. However, instead of taking up the
matter at the regular hours, the matter was taken up at 12.00 noon instead of 2.00 p.m. and abruptly the matter was disposed of by the learned
Judge. As such, there are certain allegations as against the Judge, who passed the order dated 24.2.2010.
Be that as it may, now then this Court is only concerned with the fact as to whether one more opportunity could be given to the revision
petitioner/D2 to cross-examine the witness and also argue the matter, after adducing evidence on their side.
This Court already in the revision set aside the earlier judgment and remitted the matter back to the lower Court for taking further evidence and
for passing orders, after hearing both sides. In such a case, I am of the view that further opportunity could have been given to the defendants by the
Court concerned. It is not as though the matter was dragged on for the purpose of cross-examining P.W.1 by the revision petitioner/D2 to an
abnormal extent.
The learned Judge of the Court on 5.7.2010 while disposing of the I.A. No. 4564 of 2010 took a wrong view by observing that the judgment
passed on 24.2.2010 was the one passed on merits.
At this juncture, I recollect and call up the decisions of the Honourable Apex Court reported in Asit Kumar Kar Vs. State of West Bengal and
Others, and an excerpt from it would run thus:
It is a basic principle of justice that no adverse orders should be passed against a party without hearing him. This is the fundamental principle of
natural justice and it is a basic canon of jurisprudence. In the seven Judge Constitution Bench of this Court in A.R. Antulay v. R.S. Nayak it has
been observed in para 55 thereof SCC p. 660
...So also the violation of the principles of natural justice renders the act a nullity.
One of the Counsel relied upon another five Judge Constitution Bench decision in Rupa Ashok Hurra v. Ashok Hurra. it is true that in para 9 of
the judgment it has been observed that this Court under Article 32 of the Constitution cannot hold as invalid a judgment of this Court by treating it
as a nullity. However, the aforesaid judgment does not say that we cannot pass a recall order when that order has been passed without hearing a
party.
There is a distinction between a petition under Article 32, a review petition and a recall petition. While in a review petition the Court considers
on merits where there is an error apparent on the face of the record, in a recall petition the Court does not go into the merits but simply recalls an
order which was passed without giving an opportunity of hearing to an affected party.
A mere poring over and perusal of the judgment would reveal that without hearing the parties concerned if any order is passed it cannot be
presumed that the order was passed after hearing the party who was absent. In the absence of the appellant, if an order is passed, then it should be
taken that the appeal is dismissed for default and even if an order is passed without hearing the respondent but on hearing the appellant only, then it
could only be taken as an ex parte one.
It is quite evident that if any order is passed without hearing him, then it could only be treated as an ex-parte order. Simply because the Court
discussed the merits of the matter and passed the judgment without hearing the revision petitioner/D2, it cannot be taken that a reasoned judgment
passed on merits and that it was not a ex-parte judgment. It is a universal proposition well recognised that all ex-parte orders are expected to be
passed on merits only. The test is to whether such order on merits was passed after hearing the party concerned or not.
Here it is quite clear that such an order was passed without hearing the other side. The lower Court misunderstood the entire gamut of the
proceedings and passed the order on 5.7.2010 dismissing the application and hence in the interest of audi alteram partem, I would like to grant one
more opportunity to the revision petitioner herein to cross-examine the witness concerned and also adduce further evidence and argue the matter.
Accordingly, the order dated 5.7.2010 passed in I.A. No. 4564 of 2010 is set aside and consequently the said I.A. shall stand allowed, setting
aside the judgment and decree dated 24.2.2010 with a direction that the parties shall appear before the lower Court on 11.8.2010 and the Court
shall proceed further with the matter as indicated above and dispose of the same on merits.
In the result, the civil revision petition is allowed. No costs. Consequently, connected miscellaneous petition is closed.