Madras High Court
Shaik Mohideen vs Jaibunnisa on 8 January, 2021
C.M.A.No.2044 of 2014
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 08.01.2021
CORAM
THE HON'BLE MR.JUSTICE S.M.SUBRAMANIAM
C.M.A.No.2044 of 2014
and
M.P No.1 of 2014
Shaik Mohideen ..Appellant
Vs.
1.Jaibunnisa
2.Thoulath Nisha
3.Kudubiya Begum
4.Selvarani
5.M.Duraisamy ..Respondents
Prayer : Civil Miscellaneous Appeal filed under Order 43 Rule 1(d) of
CPC, to set aside the fair and decreetal order dated 23.01.2014 made in
I.A No.78 of 2020 in O.S No.18 of 2010, on the file of the Principal
District Court, Tiruvarur.
For Appellant : Mrs.Aishwarya S.Nathan
For M/s.Srinath Sridevan
For Respondents : Mr.N.Manokaran for R1 & R2
No Appearance for R3 & R4
R5 - Not ready in notice
1/6
https://www.mhc.tn.gov.in/judis/
C.M.A.No.2044 of 2014
JUDGMENT
The fair and decreetal order dated 23.01.2014 passed in I.A.
No.78 of 2012 in O.S No.18 of 2010 is under challenge in the present
Civil Miscellaneous Appeal.
2. The appellant is the first defendant in the suit. The suit is filed
for partition and separate possession.
3. The learned counsel for the appellant mainly contended that
the appellant filed his written statement and ready to participate in the
process of trial. Due to unavoidable reasons, he could not able to appear
on a particular day and he was set exparte. The application under Order
9 Rule 13 CPC has been filed to set aside the exparte order within a
time limit. The trial Court dismissed the application and thus, the
present appeal is filed.
https://www.mhc.tn.gov.in/judis/
C.M.A.No.2044 of 2014
4. The learned counsel for the respondents objected the said
contention by stating that the suit is for partition and if the appellant
participate in the suit, decree is to be passed as rights of the parties are
clearly settled by the trial Court. This apart, it is a mistake committed
by the appellant by not appearing before the Court when the matter was
listed for trial. Therefore, the appeal is to be dismissed.
5. This Court is of the considered opinion that it is not as if the
appellant had not inclined to contest the suit, infact, the appellant filed
the written statement in the suit and prepared himself to contest the
matter. This being the factum, at least an opportunity is to be provided
to the appellant to defend his case in the manner known to law.
6. The trial Court instead of providing an opportunity, dismissed
the application filed under Order 9 Rule 13 of CPC to set aside the
exparte decree. All the suits are to be decided on merits by affording
https://www.mhc.tn.gov.in/judis/
C.M.A.No.2044 of 2014
opportunities to the parties concerned. Undoubtedly, if any litigant
intentionally avoided the court proceedings or may attempt to prolong or
protract the matter, then the Courts may reject such application. In all
other circumstances, the parties are provided to get an opportunity to
defend the case in the manner known to law, even if the principles are to
be followed already.
7. This Court is of the considered opinion that the defendant filed
written statement and due to mistake on the part of the counsel by not
appearing on a particular day, the appellant was set exparte. Mistake of
the counsel should not affect the legal right of the defendant. Under
those circumstances, this Court is inclined to allow this appeal.
8. Accordingly, the fair and decreetal order dated 23.01.2014
passed in I.A No.78 of 2012 in O.S.No.18 fof 2010 is set aside and the
present Civil Miscellaneous No.2044 of 2014 stands allowed. In view
https://www.mhc.tn.gov.in/judis/
C.M.A.No.2044 of 2014
of the fact that the suit is of the year 2010, the trial Court is directed to
dispose of the suit as expeditiously as possible and preferably within a
period of four months from the date of receipt of a copy of this
judgment.
9.The parties are directed to co-operate for the earlier disposal of
the suit. The parties are restrained from seeking unnecessary
adjournments. Even in case, adjournments are to be granted on genuine
grounds, the Court should record the reasons. The adjournments on
flimsy grounds are liable to be rejected in limini. No costs.
Consequently, the connected Miscellaneous Petition is closed.
08.01.2021
uma
Index: Yes/No
Internet:Yes/No
Speaking order/Non-Speaking Order
https://www.mhc.tn.gov.in/judis/
C.M.A.No.2044 of 2014
S.M.SUBRAMANIAM, J.
uma
To
The Principal District Court
Tiruvarur
C.M.A.No.2044 of 2014
M.P.No.1 of 2014
08.01.2021
https://www.mhc.tn.gov.in/judis/
