J.C.P.L. Fuel Station vs Sivaneswaran
2021 Latest Caselaw 564 Mad

                                                                       C.M.A.No.2815 of 2016


                                   IN THE HIGH COURT OF JUDICATURE AT MADRAS

                                               DATED : 07.01.2021

                                                    CORAM

                                    THE HON'BLE MR.JUSTICE S.M.SUBRAMANIAM

                                              C.M.A.No.2815 of 2016

                     J.C.P.L. Fuel Station,
                     Unit of Jayaram Construction Pvt. Ltd.,
                     Rep. by its Managing Director,
                     J.Jayapathy,
                     No.37/D, Mount Poonamallee Road,
                     St.Thomas Mount,
                     Chennai.                                         ... Appellant
                                                       Vs.
                     1.Sivaneswaran,
                       Proprietor,
                       Sakthi Murugan Transport,
                       S/o.Palanimalai,
                       O.V.M.Palayam,
                       Paramathi (via),
                       Namakkal District.

                     2.Mrs.Anitha,
                       Proprietrix,
                       S.M.Carriers,
                       W/o.Sivaneswaran,
                       No.28, West College Road,
                       Jagannath Nagar,

                     1/6




https://www.mhc.tn.gov.in/judis/
                                                                                   C.M.A.No.2815 of 2016


                        Arumbakkam,
                        Chennai-106.                                          ... Respondents

                     PRAYER: Civil Miscellaneous Appeal filed under Order 43 Rule 1 (u)
                     of CPC, to set aside the Fair and Decreetal order dated 05.04.2014 made
                     in I.A.No.52 of 2013 in O.S.No.11983 of 2010 on the file of XIX
                     Additional City Civil Court, Chennai and by allowing the appeal.

                                     For Appellant      :     Mr.C.Veeraraghavan
                                     For R1             :     Left
                                     For R2             :     No Appearance

                                                            *****

                                                       JUDGMENT

The suit is for recovery of money and the plaintiff is the appellant

in the present appeal. The suit dismissed for default by the trial Court

due to non-appearance of the plaintiff. The appellant/plaintiff filed an

application to restore the suit and the same was restored. When the

matter was posted for trial, again the plaintiff remained absent and once

again the trial Court dismissed the suit for default.

https://www.mhc.tn.gov.in/judis/ C.M.A.No.2815 of 2016

2.The learned counsel appearing on behalf of the appellant made a

submission that the mistake occurred on account of the fault of the

learned counsel who appeared in the suit before the trial Court and

therefore, the appellant may not suffer on account of such mistake

committed by the learned counsel.

3.The Interlocutory Application under Order 9 Rule 9 of the Civil

Procedure Code to restore the suit was filed within the time limit.

Therefore, the plaintiff had intended to pursue the suit for recovery of

money. The trial Court made a finding that there is no valid reason for

non appearance of the plaintiff and his counsel on 28.02.2013 and the

reason stated in the affidavit are not proved either orally or

documentary. Thus, the Interlocutory Application was dismissed,

against which the present appeal is filed.

https://www.mhc.tn.gov.in/judis/ C.M.A.No.2815 of 2016

4.Undoubtedly, the suit was dismissed for default on second time,

however the trial Court itself made a finding that the learned counsel for

the appellant/plaintiff did not appear before the trial Court during

hearing on 28.02.2013. The mistake of the counsel cannot affect the

rights of the parties. The suit is for recovery of money and an

opportunity is to be provided to the plaintiff to contest the case on

merits. In the event of restoration of the suit, no prejudice would be

caused to the defendant as they are also entitled to contest the case by

producing documents and adducing evidences. In order to provide one

more opportunity, this Court is inclined to consider the appeal, however

it is made clear that the appellant shall not give room for any further

default and in the event of committing any default, the trial Court is at

liberty to dismiss the case for default.

https://www.mhc.tn.gov.in/judis/ C.M.A.No.2815 of 2016

5.This being the factum, the fair and decreetal order dated

05.04.2014 passed in I.A.No.52 of 2013 in O.S.No.11983 of 2010 is set

aside and the suit in O.S.No.11983 of 2010 stands restored.

Consequently, the Civil Miscellaneous Appeal is allowed.

6.The parties to the appeal are restrained from seeking

unnecessary adjournments. Adjournments are to be granted only on

genuine grounds and by recording reasons. Adjournments on flimsy

grounds are to be rejected readily by all Courts. The parties cannot be

given privilege of getting adjournments for their benefit in order to

prolong and protract the issues. No costs.

07.01.2021

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

vv2

https://www.mhc.tn.gov.in/judis/ C.M.A.No.2815 of 2016

S.M.SUBRAMANIAM, J.

vv2

To

The XIX Additional City Civil Court, Chennai.

C.M.A.No.2815 of 2016

07.01.2021

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