Madras High Court
Shanmugasundaram vs Thulasimani @ Nataraj on 7 January, 2021
C.M.A.No.110 of 2017
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.110 of 2017
1.Shanmugasundaram
2.Thulasimani ... Appellants
Vs.
1.Thulasimani @ Nataraj
2.Perundurai Sri Chellandiamman Kottai Mariamman,
Rep. by its Assistant Commissioner,
HR & CE Department,
Erode.
3.Arulmigu Sellandiamman Kottai Mariamman Temple,
Perundhurai,
Rep. by its Executive Officer.
4.Pappathi @ Rukmani
5.P.Renuka
6.P.Amudha
7.Chellammal
8.Palaniammal ... Respondents
1/6
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C.M.A.No.110 of 2017
PRAYER: Civil Miscellaneous Appeal filed under Order 43 Rule 1 (u)
of CPC, to set aside the fair and final order dated 10.08.2016 passed in
I.A.No.247 of 2013 in O.S.No.22 of 2004 on the file of II Additional
District Court, Erode.
For Appellants : Mr.S.Kaithamalai Kumaran
For R1, R4 to R6 : Mr.V.S.Kesavan
For R2 : No Appearance
For R3 : Mr.V.Balasubramanian
For R7 : Mr.C.Munusamy
For R8 : Insufficient Address
*****
JUDGMENT
The plaintiffs are the appellants in the present appeal. The suit
was instituted for partition and the suit was dismissed for default. The
appellants filed an Interlocutory Application under Order 9 Rule 9 of the
Code of Civil Procedure to restore the suit, which was dismissed for
default on 10.08.2016. The appellants have stated in the affidavit filed
in support of the Interlocutory Application that the case was posted for
enquiry on 23.09.2009. The advocates were on strike and the appellants
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C.M.A.No.110 of 2017
were not able to get instructions from the counsel and the learned
counsel was also not in a position to appear before the Court on account
of the strike. In view of the fact there was no representation, the suit
was dismissed for default.
2.This Court is of the considered opinion that because of the non
appearance of the learned counsel for the appellants on account of
Advocates' boycott, the parties should not be made to suffer and
opportunity is to be provided to the plaintiffs to contest the case on
merits by filing documents and by adducing evidences. Contrarily, the
suit cannot be rejected on the ground of default, in view of the fact that
in the present case there was Advocates' boycott during the relevant
point of time.
3.This being the factum established, this Court is inclined to
consider the grounds raised in the present Civil Miscellaneous Appeal
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C.M.A.No.110 of 2017
and accordingly, the fair and decreetal order passed in I.A.No.247 of
2013 in O.S.No.22 of 2004, dated 10.08.2016 is set aside. The suit in
O.S.No.22 of 2004 stands restored. Consequently, the Civil
Miscellaneous Appeal stands allowed. The trial Court is directed to
dispose of the suit as expeditiously as possible and preferably within a
period of 10 months from the date of receipt of a copy of this order.
4.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
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C.M.A.No.110 of 2017
To
The II Additional District Court,
Erode.
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C.M.A.No.110 of 2017
S.M.SUBRAMANIAM, J.
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C.M.A.No.110 of 2017
07.01.2021
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