P MAHAMMADHU SAHIB ROWTHER Vs. MUTHU SAMBAN

JUDGEMENT

(1.) THIS is a civil revision petition to revise the order of the District Munsiff of Tenkasi. The District Munsiff refused to set aside an order of the Panchayat Court of Tenkasi restoring to the file Suit No. 242 of 1938, filed in that Village Panchayat Court. It appears that a Suit No. 241 of 1938 was also filed by the petitioner against the same defendants-respondents. Suit No. 241 of 1938 was decreed ex parte and it is admitted that an application to set aside that ex parte decree was dismissed. It is clear from the record that these suits appeared side by side and day by day together. The decree in Suit No. 242 of 1938 was passed on the 30th January, 1939. Nevertheless on the 23 March, 1942, that is to say, three years and two months after the ex parte decree, a petition was filed before the Panchayat Court seeking to set aside the decree on the ground that the summons had not been served. THIS the Court did without giving any reasons. On a revision petition under Section 73 of the Village Courts Act being filed before the District Munsiff, he made the following remarkable observations: No doubt the records show that respondents appeared on the various dates to which the suit was adjourned. Possibly it is a mistaken entry because it is stated before me by the petitioner that he had filed another suit C. S. No. 241 of 1938 against the very same defendants and that suit was also taken up along with C. S. No. 242 of 1938 on all the adjourned dates. The lower Court has not stated its reasons for setting aside the ex parte decree. It is just possible that the lower Court believed that these respondents were not served with suit summons and that the entries in the diary were made under a mistake. It will therefore be seen that although the record shows that the defendants appeared throughout on the days on which the suit was posted and although the suit summons which I have examined purports to show that it was signed by the defendants-respondents, the Munsiff, for reasons which I cannot pretend to understand, has refused to set aside the order setting aside the ex parte decree by bringing into existence a theory, for which there is no foundation whatever from the records, i.e., that the records of the Court had been wrongly filled up. Apart from the presumption that official acts of this sort are rightly done, there is every probability amounting virtually to a certainty that the defendants were in Court on that day throughout, and preferred to take no part in the proceedings. Therefore, although they were in the Court, and although they knew of the suit, the Panchayat Court has set aside an ex parte decree more than three years after. Such an order was in my opinion not within the jurisdiction of the Panchayat Court, and in any case was clearly unjust in accordance with the working of Section 73.

(2.) IT is suggested however that the Munsiff has discretion to deal with these matters which should not be interfered with, and the decision of Jackson, J., reported in Sundara Naicker v. Potti Naicker has been cited. There is nothing whatever in that judgment which affects the jurisdiction of this Court to put right such a manifest miscarriage of justice as has occurred in this case. If I am asked to give a specific reason, I would say that in this case the Munsiff has exercised his jurisdiction most irregularly by deciding not on the record before him, but on what he supposed must have been the record. The order of the Munsiff is clearly one which attracts the jurisdiction of this Court. I shall therefore allow the civil revision petition with costs throughout, and the result will be that the Munsiff's order will be set aside and there will be an order, which the Munsiff should have made, setting aside the order of the Panchayat Court setting aside the ex parte decree. The result will be that the decree will be restored.