Madras High Court
Arumugam vs Chandra on 8 December, 2021
S.A.No.986 of 2021
IN THE HIGH COURT OF JUDICATURE AT MADRAS
Dated: 08.12.2021
CORAM:
THE HONOURABLE MR.JUSTICE G.CHANDRASEKHARAN
S.A.No.986 of 2021
and C.M.P.No.18486 of 2021
1. Arumugam
2. Sakthivel
3. Sathish Kumar ... Appellants
.Vs.
Chandra ... Respondent
PRAYER: Second Appeal is filed under Section 100 of CPC against order of
judgment and decree passed in A.S.No.69 of 2019 dated 19.11.2020 on the
file of the Principal Sub Judge, Namakkal reversing the judgment and decree
in O.S.No.198 of 2013, dated 06.03.2019 on the file of the Additional District
Munsif Court, Namakkal.
For Appellants : No appearance
For Respondent : No appearance
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S.A.No.986 of 2021
JUDGMENT
This Second Appeal is filed challenging the judgment of the learned
Principal Sub Judge, Namakkal in A.S.No.69 of 2019 dated 19.11.2020
confirming the judgment of the learned Additional District Munisf Court,
Nammal in O.S.No.198 of 2013 dated 06.03.2019.
2. The Respondent as the plaintiff filed the suit for the relief of
injunction restraining appellants/defendants from interfering respondent's use
of AB pathway. During the trial before the Trial Court PW1 and PW2 were
examined, and Exs.A1 to A16 were marked on the side of respondent/plaintiff
and DW1 was examined, Ex.B1 was marked on the side of
appellants/defendants. That apart, Exs.C1 and C2 were also marked.
3. On considering the oral and documentary evidence, the learned Trial
Judge found that though respondent claimed the width of AB pathway as 7
feet, appellants claimed that there exists a pathway to a width of 3 feet. In the
view of the matter, the learned Trial Judge has given restricted injunction
decree to pathway to a width of 3 feet. This judgment was challenged by the
respondent in A.S.No.69 of 2019. The learned first Appellate Judge, on going
through oral and documentary evidence and Commissioner's report and plan,
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S.A.No.986 of 2021
Exs.C1 and C2, found that AB pathway measures 7 feet width. This decision
was arrived on the basis of Commissioner's report and plan and therefore the
learned First Appellate Court found the decision of the Trial Court that
respondent was entitled to use the AB pathway to a width of 3 feet was
against the evidence available, and in this view of the matter, reversed the
Trial Court judgment and found that there exists a pathway to a width of 7
feet and thus the respondent is entitled for the relief of permanent injunction.
Against the said judgment, this Second Appeal is filed.
4. This Second Appeal came up for hearing on 19.11.2021,
23.11.2021, 01.12.2021 and today(08.12.2021). There was no representation
on 23.11.2021 and 01.12.2021. Therefore the Second Appeal was posted
under the caption for dismissal today (08.12.2021). Today(08.12.2021) also
there is no representation for the appellants and respondent.
5. In view of continued absence of counsel on record for the
appellants and respondent, this Second Appeal is dismissed for default. No
costs. Consequently, connected miscellaneous petition is closed.
jai 08.12.2021
https://www.mhc.tn.gov.in/judis
S.A.No.986 of 2021
Speaking Order/Non Speaking Order
Index : Yes
Internet : Yes
To
1. The Principal Subordinate Judge
Namakkal.
2. The Additional District Munsif,
Civil Judge(Junior Division),
Namakkal.
https://www.mhc.tn.gov.in/judis
S.A.No.986 of 2021
G.CHANDRASEKHARAN, J.
jai
S.A.No.986 of 2021
08.12.2021
https://www.mhc.tn.gov.in/judis
