B PUTHAN Vs. B M BILLAN

JUDGEMENT

(1.) CIVIL Revision Petition No.3278 of 1991 is filed against the order made in I.A.No.186 of 1991 in O.P.No.l of 1991 on the file of the learned District Munsif, Uthagamandalam. O.P.No.l of 1991 was filed by the petitioner herein against B.M.Billan and B.Rani in the court of the District Munsif, Uthagamandalam under Sec.193, I.P.C. and under Secs.195 and 340, Crl.P.G, praying for sanction to prosecute the respondents therein. That O.P. was posted on 12.12.1990 for notice to respondents and Mr.W.P.Sivaraj, advocate entered appearance for the respondents in the O.P. on 6.2.1991 and time was requested for filing counter. But he filed the vakalat on 20.2.1991 and prayed for further time for filing counter. The O.P. was adjourned to 20.3.1991 for the said purpose. But on that date, no counter was filed by the respondents and again it was adjourned to 24.1991 for counter finally. On 2.4.1991 counter was not filed. Again it was adjourned to 12.4.1991 for counter. Even on that date, it was not filed. The respondents absented themselves in the lower court and so they were called and set ex parte. Counsel for the respondents Mr.M.P.Sivaraj also did not attend the court on that date. The case of the petitioner in the O.P. is that the respondents gave false evidence in O.S.No.263 of 1989 of the said court. The trial court framed points for consideration, namely, whether the respondents gave false evidence in O.S.No.263 of 1989 on his file and if so, whether the respondents are liable to be prosecuted under Secs.193 and 109 I.P.C. and the third point is whether that was a fit case for granting sanction for prosecution of the two respondents. The trial court observed in its order that though it was not necessary that there should be a preliminary enquiry under Sec.340, Crl.P.C. yet the lower court gave an opportunity to the respondents to put forward their contentions. After discussion, the trial court found that it was a fit case for granting sanction for prosecution against the respondents and as an order was passed accordingly on 30.4.1991. B.M.Billan, the first respondent in the O.P. filed I.A.No.186 of 1991 under 0.9, Rule 13, C.P.C., for setting aside the exparte decree dated 30.4.1991 in O.P.No.l of 1991 stating that he is a teacher in a school, that on the date when the O.P. was posted finally for filing his counter, he could not obtain leave to meet his advocate for filing counter and so his absence was not wilful but bona fide. This petition was resisted by the petitioner (Puthan) in the O.P. by filing a counter stating that the absence of the petitioner in the I.A.No.186 of 1991 is wilful and that the provision under O.9, Rule 13, C.P.C. does not apply to the proceedings at all. According to him, the order passed in the O.P. is not at all a decree as per the provisions of the Code of CIVIL Procedure. Learned District Munsif allowed that application by his order dated 8.11.1991 on condition that the petitioner in I.A.No.186 of 1991 should pay a sum of Rs.100 as costs before 28.11.1991 failing which the said application would stand dismissed. The trial court posted that application I.A.No.186 of 1991 to 29.11.1991 for compliance. As against that order made in I.A.No.186 of 1991 dated 8.11.1991 C.R.P.No.3278 of 1991 is filed in this Court. C.R.P.No.1238 of 1992: B.Rani, the second respondent in O.P.No.l of 1991 filed I.A.No.187 of 1991 for setting aside the ex parte order passed under 0.9, Rule 13, C.P.C. stating that she was a student in a Government teachers Training School at Kothagiri that she could not meet her counsel on 30.4.1991 for filing the counter as she could not get leave on that date and so that her absence was not wilful but bona fide. This I.A.No. 187 of 1991 was resisted by Puthan the petitioner in the O.P. on the ground inter alia that O.9, Rule 13, C.P.C. will not apply since the order passed in the O.P. is not a decree as per C.P.C. and that the absence of the petitioner Rani is wilful. The lower Court passed an order on 8th November, 1981 allowing I.A.No.187 of 1991 on condition that the petitioner in I.A.No.187 of 1991 should pay a sum of Rs.100 as costs to the respondents in the I.A. within 28.11.1991 failing which the said application would be dismissed and posted the I.A. to 29.11.91. As against that order dated 8.11.1991 made in I.A.No.187 of 1991, C.R.P.No.1238 of 1992 is filed.

(2.) MR.K.Sampath, learned counsel for the petitioner in both the civil revision petitions filed written arguments contending that the application I.A.No.187 of 1991 filed under O.9, Rule 13, C.P.C. is not at all maintainable and that if at all the respondent is aggrieved with the order made ex parte in O.P.No.l of 1991, he has to file an appeal as against that order. The second contention of MR.K.Sampath is that no enquiry is necessary and that the lower court has committed an error in ordering notice and calling upon the respondent to show cause as to why the application filed under Sec. 193, I.P.C. and also under Secs. 195 and 340 Crl.P.C. should not be ordered. In support of his contention, he relied upon the decisions in the case of In re. Narayana Nadan, A.I.R. 1915 Mad. 229, Raja Rao v. Emperor, A.I.R. 1926 Mad. 1008, Canti v. Marcourt, A.I.R. 1931 Cal. 436, Varada-rajulu Naidu v. Emperor, (1937)1 M.L.J. 396: A.I.R 1937 Mad 716:I.L.R. 1937 Mad. 612:45 L. W. 257: 1937 M. W.N. 330:1937 M. W.N. (Crl.) 58:170 I.C. 255: 38 Crl.L.J. 871.

(3.) WITH respect to the second contention that no enquiry is necessary at all and that even notice ought not to have been sent to the respondent to show cause to the proceedings made in O.P.No.l of 1991. Mr.K.Sampath, learned counsel for the petitioner contended that in view of the above decisions relied upon by him, a preliminary enquiry itself is not at all contemplated and that the lower court has exceeded its jurisdiction in ordering notice in I.A.Nos.187 of 1991 and 186 of 1991 in O.P.No.l of 1991. He relied upon the decision in the case Varadarajulu Naidu v. Emperor, (1937)1 M.L.J. 396: A.I.R. 1937 Mad 716: I.L.R. 1937 Mad. 612: 45 L.W. 257: 1937 M.W.N. 330:1937 M.W.N. (Crl.) 58:170 I.C. 255: 38 Crl. L.J. 871. In that decision, a Division Bench of this Court has held that any High Court Judge has jurisdiction to make complaint under Sec.476, C.P.C. when fabricated documents are produced during trial of suit in exercise of original civil jurisdiction. The Division Bench has also held as follows: