Thoppe Balusamy Iyer, Dharamachatram vs Thoppe B. Rajaram (died) and Others

G. Rajasuria, J.—Heard both the sides. A thumbnail sketch of the germane facts absolutely necessary for the disposal of these two Civil

Revision Petitions would run thus:

The revision petitioners filed the suit seeking the following reliefs:

a) to declare that the suit property is a Chatram Trust Property called as Thoppe. Balusamy Iyer Dharma Chatram and consequently direct the

defendants to surrender vacant possession of the suit property to the 1st plaintiff Chatram;

b) directing the defendants to hand over the management of the suit property i.e., the plaintiffs 2 to 9 or to other parties on account of the breach of

trust by a decree of mandatory injunction within a time to be fixed by this Hon''ble Court and in the event of failure to do so permit the plaintiffs 2

to 9 for getting the management of the suit property from them through Court in Execution Proceedings;

c) directing the defendants to delivery possession of the suit property to the 1st plaintiff for management as Chatram by plaintiffs 2 to 9 or by other

parties for management as this Hon''ble Court deems it fit and proper in the alternative;

d) to settle a scheme for due and proper management of the suit property as 1st plaintiff Dharma Chatram for which the suit property is dedicated;

e) directing the 10th defendant to deposit the rent of Rs. 4,000/- into this Hon''ble Court with effect from 01.10.97 till the final disposal of the suit

and by way of mandatory injunction;

f) directing the 11th defendant to deposit the rent of Rs. 2,000/- into this Hon''ble Court with effect from 01.10.97 till the final disposal of the suit

and by way of mandatory injunction;

g) directing the contesting defendants to pay the costs of this action to the plaintiffs and

h) granting such other or other reliefs as the nature of the case may require and thus render justice.

Along with the suit, they filed I.A. No. 63 of 2009 u/s 92 of C.P.C., and that was also pending along with the suit in O.S. No. 91 of 2004.

While so, the Advocate who appeared for the plaintiffs before the Lower Court made an endorsement as though he was not pressing the I.A. as

well as the suit. Whereupon, the Court dismissed the I.A. No. 63 of 2009, but it did not pass any order in the suit. In the mean while, the party

filed two applications for withdrawing the endorsement to with ""not pressed"" made in the I.A. as well as in the O.S. However, subsequently, the

Judge (Successor in Office) heard both the sides and dismissed those applications on the ground that he being a successor cannot set aside the

order of his predecessor. After dismissing both the applications, subsequently, as a sequela, he dismissed the suit itself. Being aggrieved by and

dissatisfied with the same, the present Civil Revision Petitions are focussed.

At this juncture, it is worthwhile to mention that the respondents 5 and 6 could not be served despite steps taken by the petitioners.

However, the learned Advocate who appeared for R5 and R6 in Lower Court would now submit that in these Civil Revision Petitions he has

not filed vakalat for R5 and R6, because they are not available in Madurai. Notices sent to them were returned unserved with various

endorsements.

The learned counsel for the revision petitioners would submit that he is dispensing with the respondents 5 and 6 as their appearance is not

required in view of the inability on the part of the petitioners to serve in person the notice on them and their presence in Civil Revision is not

necessary. Furthermore, the interests of the other respondents are not antithetical to the respondents 5 and 6. Hence notice is dispensed with in

respect of respondents 5 and 6.

The learned counsel for the revision petitioners would submit that wrongly those endorsements were made in the I.A. as well as in the suit and it

was due to the misconception of law that without getting order in the I.A. u/s 92 of C.P.C., the suit should not have been got numbered and that

was why such endorsements were made. Subsequently, the counsel as well as the party recognised their mistake and filed such application for

withdrawing such endorsements. The Successor Judge has got the power to consider it and allow the application but he failed to pass positive

orders, whereupon the revisions have been filed.

The learned counsel for the respondents 1 to 4 would argue that the learned Advocate who examined himself as witness in I.A. No. 63 of 2009,

denied he having made such endorsements. Absolutely there is no merit in the revisions filed. After making such endorsements as not pressed, in

the I.A. as well as the suit, they cannot now take a different stand.

The point for consideration is as to whether the Lower Court Judge was justified in simply dismissing the applications on the ground that he had

no jurisdiction to pass order in allowing the I.As, because his predecessor took a view earlier in dismissing the I.A. u/s 92 of C.P.C.?

Whether one more opportunity could be given to the petitioners to pursue the I.A. u/s 92 of CPC as well as O.S., is the question. I would like

to point out that it is glaringly and pellucidly clear that owing to misconception of law, such endorsements emerged. If really the plaintiffs wanted to

withdraw the suit as well as the I.A. u/s 92 of CPC, then there could have been no reason for filing such applications subsequently for withdrawing

such endorsements. No doubt, at one point of time it was the practice of the Courts that without disposing of the application u/s 92 of CPC, the

suits were not numbered. But subsequently, the practice emerged to the effect that both the I.A. u/s 92 of CPC and suit were numbered and on

hearing the respondents/defendants, decisions were rendered even u/s 92 of CPC. So far, in the application u/s 92 of CPC, no order was passed.

It is always open to the respondents to contest the application u/s 92 of CPC that it was not maintainable and correspondingly the suit has to be

taken off the file. However, it appears that the Advocate earlier made endorsement in the I.A. as well as in the suit, subsequently, by correcting

himself, such applications were filed. No doubt the Advocate might have stated in the box that he had not made such endorsements. The Court has

to go by the endorsements available on record and accordingly, the earlier Court passed the order. In these circumstances, I am of the view that

detailed probe into the genuineness of the endorsements need not be gone into and the real issue is as to whether one more opportunity could be

given to the plaintiffs/petitioners or not to proceed with the suit and I.A. u/s 92 of CPC. Even for argument''s sake it is taken that the Advocate has

made such endorsement, there is nothing to show that he should not get it corrected. No doubt, because of all these developments, the

defendants/respondents should not be put to discomfiture and they should be adequately compensated.

The view taken by the Successor Judge that he could not pass any order which would have the effect of nullifying the earlier order passed by

the predecessor is neither here not there and no more elaboration is required in this regard. There is no legal embargo that the endorsements made

unwittingly should not be allowed or to get cancelled. Hence, I am of the view that both the revisions could be allowed subject to payment of a

cumulative cost of Rs. 10,000/- (Rupees Ten Thousand Only) payable by the petitioners to the respondents within a period of fifteen days from

today. Whereupon, I.A. and the suit shall stand restored on file. Should the revision petitioners fail to comply with the order of this Court in paying

the cost, this order will not enure to their benefit. Both the Civil Revision Petitions are allowed. Consequently, the connected miscellaneous petition

is closed. No costs.