Madras High Court
Sadaiyan vs Dharmalingam on 29 January, 2021
C.M.A.No.213 of 2021
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 29.01.2021
CORAM
THE HONOURABLE MR. JUSTICE S.M.SUBRAMANIAM
C.M.A.No.213 of 2021
C.M.P.No.1459 of 2021
Sadaiyan .. Appellant
vs.
1.Dharmalingam
2.Parvathy
3.Anjalai ...Respondents
PRAYER : Civil Miscellaneous Appeal filed under Order 43 Rule 1(V) of
C.P.C, to set aside the judgment and decree dated 20.03.2008 passed in
A.S.No.20 of 2003 on the file of the Principal District Court, Perambalur
District reversing the decree and judgment dated 25.10.2002 passed in
O.S.No.279 of 1993 by the District Munsif Court, Perambalur District by
allowing this appeal.
For Appellant : Mr.R.Nalliyappan
1/5
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C.M.A.No.213 of 2021
ORDER
The Judgment and Decree dated 20.03.2008 passed in A.S.No.20 of
2003 is under challenge in the present Civil Miscellaneous Appeal.
2. The defendant filed the present appeal. The suit filed by the
respondents was dismissed. Thereafter, the respondents filed the appeal in
A.S.No.20 of 2003. The appeal suit was adjudicated and it was allowed and
the suit was remanded back for fresh disposal. The findings of the First
Appellate Court reveals that "it has to be decided to whom originally the
assignment was made and whether the said assignment was cancelled or not.
In such circumstances of the case, the owner of the property who is the
Government, is a necessary party to the suit. Only after hearing the
objections of the Government alone, the matter will be adjudicated properly.
In this view of the matter, an opportunity shall be given to the plaintiff to
implead the Government as a party to the suit; that after such impleadment,
the opposite party has to be given an opportunity to file their objections if
any and only after hearing both oral and documentary evidence with regard
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C.M.A.No.213 of 2021
to the title of the suit property, adduced by the parties concerned, the case
shall be adjudicated according to law. Therefore, it has become necessary to
remand the case to the trial Court for fresh disposal".
3. The First Appellate Court arrived a conclusion that the necessary party
namely Government had not been impleaded in the suit. Therefore, there
was no adjudication in respect of necessary party. Thus, the matter is to be
remanded back for re-trial.
4. The Judgment and Decree in the appeal suit was passed on 20.03.2008
and the present Civil Miscellaneous Appeal was filed on 05.01.2020. Inspite
of the orders of this Court granting permission to the appellant to serve
notice to the respondents, no notice has been served to the second and third
respondents. Thus, this Court is inclined to consider the merits of the case.
5. With reference to the findings of the First Appellate Court, it is very
clear that the necessary party has not been impleaded and the Government
has got interest in respect of the suit property. Therefore, the Government
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C.M.A.No.213 of 2021
become necessary party in the suit. Admittedly, the Government has not
been impleaded as a party. Thus, the First Appellate Court remanded the
matter back for impleading the Government as a party to the suit and
adjudicated the issues on merits and in accordance with law. This Court do
not find any infirmity or perversity in respect of the remand made by the
First Appellate Court. Therefore, the Judgment and Decree dated
20.03.2008 passed in A.S.No.20 of 2003 stands confirmed and
consequently, Civil Miscellaneous Appeal stands dismissed. No costs.
Consequently, connected miscellaneous petition is also closed.
29.01.2021
ssb
Index: Yes/No
Internet:Yes/No
Speaking order/Non-Speaking Order
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C.M.A.No.213 of 2021
S.M.SUBRAMANIAM, J.
ssb
To
1. Principal District Court, Perambalur
2.District Munsif Court, Perambalur
C.M.A.No.213 of 2021
29.01.2021
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