KARIKADAI BALU Vs. BALAKRISHNA IYER AND ORS.

JUDGEMENT

(1.) THE first defendant in O.S. No. 255 of 1980 on the file of District Munsif's Court, Madurai Taluk is the appellant in the second appeal. The plaintiff and defendants 2 and 3 in the above mentioned suit are respondents in the second appeal. For the sake of convenience the parties are referred to in this judgment by their nomenclature given in the suit.

(2.) , The facts necessary for the disposal of the second appeal are as follows: The plaintiff filed this suit O.S. No. 255 of 1980 on the file of District Munsif's Court, Madurai Taluk for a permanent injunction restraining the first defendant, his men, and agents from interfering with the possession and enjoyment of the suit property by the plaintiff and for directing the first defendant to deliver possession of the portion of the suit property marked as GHLIH in the Commissioner's plan and also the portions of the property over which he has put up a mutton stall and for a mandatory injunction directing the first defendant to remove the that fence put up by him in the suit property. The suit was posted for hearing on 1 -9 -1980 and on that day, 1st defendant did not appear and he was set ex parte. From 1 -9 -1980, the suit was adjourned to 5 -9 -1980. On 5 -9 -1980, the ex parte evidence of P.W.1 was taken, Exhibits A -l, C -l and C -2 were marked and the trial court passed ex parte decree against the first defendant The first defendant filed an application I.A.No. 635 of 1980 to set aside the ex pane decree dated 5 -9 -1980. On 12 -11 -1980, the trial Court allowed I.A.No.635 of 1980 and the ex parte decree passed against the first defendant on 5 -9 -1980 was set aside. The first defendant thereafter filed a written statement through his counsel. Subsequent to the filing of the written statement in the suit. Plaintiff also filed a reply statement. On the basis of the pleadings of both the parties, the trial Court also framed issues. After framing issues, the suit was adjourned to 21 -1 -1981 to trial. On 21 -1 -1981 the first defendant did not appear before the Court, consequently he was set ex parte and on the same day the suit was decreed on the basis of the ex parte evidence already recorded on 5 -9 -1980.

(3.) MR . K.Jayaraman, learned Counsel for the first defendant would contend that as per the provisions of Order 9, Rule 6(1)(a), C.P.C. read with Order 9, Rule 7, C.P.C. ex parte order and an ex parte decree cannot be passed simultaneously on the same day. In other words, the learned Counsel submitted that the trial Court in the present case after setting the first defendant ex parte on 21 -1 -1981 cannot immediately proceed to pass the ex parte decree, on the basis of the evidence already on record on the same day itself. According to the learned Counsel for the first defendant, when the first defendant was set ex parte on 21 -1 -1931, the trial court ought to have adjourned the suit to some other date giving an opportunity to the first defendant to appear on the adjourned date and should pass the ex parte decree only on the adjourned date if the first defendant failed to appear on the date also. There is no force in the contentions of the learned Counsel for the first defendant. Order 9, Rule 6, C.P.C. comes under Chapter 9, which deals with appearance of parties and consequence of non -appearance Order 9, Rule 5 must be read along with Order 9, Rules 1 to 5, C.P.C. Order 9, Rule 1, C.P.C. says that on the day fixed in the summons for the defendant to appear and answer, the parties shall be in attendance at the Court in person or by their respective pleaders and the suit shall then be heard, unless the hearing is adjourned to a future day fixed by the Court Order 9, Rule 2 provides for the dismissal of the suit, where summons has not been served in consequence of plaintiffs failure to pay the court fee or postal charges (if any) chargeable for service of summons. Order 9, Rule 3says where neither party appears when the suit is called on for hearing, the court may pass an order dismissing the suit. Order 9, Rule 5, provides for the dismissal of the suit where the plaintiff, after summons returned unserved, fails for 3 months to apply for fresh summons. Order 9, Rule 6, C.P.C. runs as under