SELVI Vs. RAJAMANI

JUDGEMENT

(1.) THIS civil revision petition has been filed against the order of dismissal passed in the application filed by the 2nd defendant to set aside the ex-parte decree passed against her on 14.12.1990.

(2.) HEARD Mr.R.Selvakumar, learned counsel for the petitioner and Mr.T.Murugamanickam, learned counsel for the respondent.

(3.) LEARNED counsel for the respondent would submit in his argument that the petitioner/2nd defendant was actually a major person attained the age of majority and was 19 years at the time of filing the suit and the production of birth certificate without the name of the petitioner would not identify the petitioner/2nd defendant was only aged 16 years at the time of filing of the suit and the petitioner did not adduce any oral evidence for proving the said birth extract. He would further submit in his argument that the younger daughter of the 1st defendant mother would have been produced for the purpose of showing that the petitioner was only 16 years and therefore, the birth extract requires separate oral evidence and on that basis it cannot be decided that the petitioner/2nd defendant was a minor at the time of filing the suit. He would further submit in his argument that the order passed by the lower court was under Order 9 Rule 13 CPC in rejecting the said application. Therefore, appeal will lie against the said order under the provisions of Order 43 Rule 1 (d) CPC. He would further submit in his argument that the petitioner instead of filing the appeal has come forward to question the same by the way of revision and the filing of revision itself is not sustainable. He would also draw the attention of the court to a judgment of Honourable Apex court reported in (2001) 6 SCC 569 in between Punjab National Bank vs. O.C. Krishnan and others to the principle that when appeal is provided in the Act the only recourse to the proceedings under Articles 226 and 227 of the Constitution is expressly barred. He would again cite a judgment of this court reported in 2004 (4) CTC 696 in between The Director of School Education, College Road, Nungambakkam and Ors vs. G. Venkatesan to the same principle. Therefore, he would request the court that the revision has to be dismissed as not maintainable and suitable directions may be issued in the facts and circumstances of the case.