Aroula Reymond vs Aroula Joseph
2021 Latest Caselaw 2927 Mad

                                                                                C.M.A.No.214 of 2021

                                   IN THE HIGH COURT OF JUDICATURE AT MADRAS

                                                  DATED : 08.02.2021

                                                        CORAM

                            THE HONOURABLE MR.JUSTICE S.M.SUBRAMANIAM

                                                 C.M.A.No.214 of 2021

                     1.Aroula Reymond

                     2.Aroula Antoinette                                         ..Appellants
                                                          Vs.

                     1.Aroula Joseph

                     2.Mohammed Saleem

                     3.S.Mohammed Meharaj                                        ..Respondents

                     Prayer : Civil Miscellaneous Appeal filed under Section 104 of C.P.C.
                     R/w Order 43 Rule (1)(k) of C.P.C, to set aside the Fair and Decreetal
                     order dated 29.11.2016 passed in I.A.No.1495 of 2016 in O.S.No.108 of
                     2010 on the file of the Principal District Judge, Puducherry.


                                      For Appellants    : Mr.T.Sathiyamoorthy


                                      For Respondents   : Mr.L.Dhamodaran for RR2 & 3




https://www.mhc.tn.gov.in/judis/




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                                                                               C.M.A.No.214 of 2021



                                                   JUDGMENT

The Fair and Decreetal order dated 29.11.2016 passed in

I.A.No.1495 of 2016 in O.S.No.108 of 2010 is under challenge in the

present Civil Miscellaneous Appeal.

2. The plaintiffs are the appellants herein and the suit was

instituted for declaration and partition. The suit was dismissed for non-

prosecution. To restore the suit, an interlocutory application was filed in

I.A.No.1495 of 2016. The trial Court dismissed the interlocutory

application mainly on the ground that several opportunities were

provided to the appellants/plaintiffs, who in turn, had not shown any

interest in pursuing the suit and contrarily, they had prolonged the suit

with some motive. The intention of the appellants/plaintiffs was

considered by the trial Court for the purpose of dismissal of the

interlocutory application. In this regard, paragraph No.9 of the judgment

is relevant and the same is extracted hereunder:

“On perusal of records, this Court learned that

after framing of issues, the case was posted for trial in the

year 2015 itself. In the year 2016, the petitioner filed a https://www.mhc.tn.gov.in/judis/

C.M.A.No.214 of 2021

petition in I.A.No.2537/2015 to stay further proceedings in

O.S.No.108/2010 now pending on the file of this Court till the

disposal of A.S.No.968/2015 filed by the petitioners against

the judgment and decree passed in O.S.No.109/2006 dated

11.03.2015 and which is now pending before the Hon'ble High

Court, Madras. The said petition was pending for nearly three

months and finally, it was dismissed. Again trial was fixed to

be commenced on 06.04.2016 and for appearance of the

plaintiff, the case was pending till 21.06.2016 and on that date

also the petitioner was not present and no representation was

also made and the suit is dismissed with note that “the

plaintiff has not appeared even when directed”. Hence the suit

filed by the plaintiffs was not proceeded as per the order of the

trial Court by making his appearance. The reasons stated by

the petitioner for absence on his part and reason for non-

representation by the counsel is not supported by any

document. Hence the reasons stated for the non-appearance

and non-representation cannot be acceptable one. The

intention for the non-appearance on the side of the petitioner

was stated by the defendant is only to drag on the proceedings https://www.mhc.tn.gov.in/judis/

of the suit and the appeal is also not proceeded. Furthermore,

C.M.A.No.214 of 2021

the suit is of the year 2010. The above said facts clearly

revealed the non-appearance of the plaintiff not only on the

specific date and even on the earlier hearing dates also and

even when the case was posted for trial in the year 2015.

Hence, it is clearly observed that the petitioner is not very

much interested in proceeding with the case to get proper

relief otherwise he would have appeared when the case was

posted for trial. If he is really aggrieved by the order of this

Court in I.A.No.2537/2015, he would have taken immediate

steps at the earliest.”

3. This Court is of the considered opinion that the appellant, who

instituted a suit, is expected to pursue the matter vigilantly. In case of

any genuine lapses or non-appearance, Courts are at liberty to take

lenient view. However, if the intention of the party is established that the

plaintiffs are not interested in pursuing the matter or adopted a delay

tactics in order to prolong the matter, then the Courts cannot show any

leniency by restoring the suit in favour of the plaintiffs. Such

prolongation can never be appreciated but to be deprecated.

Undoubtedly, all the suits are to be decided on merits. Parties are https://www.mhc.tn.gov.in/judis/

expected to co-operate for the earlier disposal of the suits.

C.M.A.No.214 of 2021

4. Under these circumstances, this Court is of the opinion that the

reasons furnished for dismissal of the interlocutory application by the

trial Court is candid and convincing. There is no infirmity as such. Thus,

the Fair and Decreetal order dated 29.11.2016 passed in I.A.No.1495 of

2016 in O.S.No.108 of 2010 stands confirmed and the Civil

Miscellaneous Appeal stands dismissed. No costs.

08.02.2021

ssb Index: Yes/No Internet:Yes/No Speaking/Non-Speaking order

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C.M.A.No.214 of 2021

S.M.SUBRAMANIAM, J.

ssb

To Principal District Judge, Puducherry

C.M.A.No.214 of 2021

08.02.2021

https://www.mhc.tn.gov.in/judis/