V T MADASAMY NADAR Vs. CHINNASUDALAI MADAN

JUDGEMENT

(1.) DEFENDANT is the petitioner in this revision petition against the concurrent orders passed by the courts below, namely, in I.A.No.1093 of 1991 by the trial court and in C.M.A.No.43 of 1991 by the lower appellate court. The said l.A.No.1093 of 1991 was filed by the respondents/ plaintiffs for grant of injunction under O.39, Rule 1 pending disposal of their suit O.S.No.394 of 1991 on the file of the District Munsif Court, Tenkasi. On 6.9.1991 the impugned order as was passed as follows: Aggrieved by the said order of the petitioner defendant preferred the abovesaid C.M.A.No.43 of 1991. There the lower appellate court held that the said appeal would not lie at all since defendant should have resorted to 0.39, Rule 4 by filing a petition to vacate the abovesaid injunction order granted on 6.9.1991 and he could not file an appeal. For holding so, the lower appellate court relied on Abdul Shukeer Sahib v. Umachander and another, 1976 T.L.N.J. 159. Therefore, the lower appellate court dismissed the C.M.A., and hence the present civil revision petition is filed by the petitioner.

(2.) LEARNED counsel for the petitioner initially submits that the abovesaid order dated 6.9.1991 is not anex parte order at all since in the impugned order itself it is mentioned that the defendant/ petitioner's counsel Mr.P.S.Pandian appeared. No doubt, it is mentioned so, but the learned counsel himself admits that there was no argument by the said Mr.P.S.Pandian. That means there was no participation by the mentioner's counsel in the trial court, even though he might have been present in the court at the time when the said I.A. was taken up and the order was passed. So, it is only to be taken that the order dated 6.9.1991 was an exparte order.