Madras High Court
Maruthambal vs Chinnarasu (Died) on 13 July, 2021
S.A.(MD)No.1003 of 2007
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 13.07.2021
CORAM:
THE HONOURABLE MR.JUSTICE G.R.SWAMINATHAN
S.A.(MD)No.1003 of 2007
and
Cross Objection (MD)No.2 of 2008
and
M.P.(MD)No.1 of 2007
In S.A.(MD)No.1003 of 2007
1.Maruthambal
2.Paulraj
3.Singaravel
4.Apparaj ... Plaintiffs / Appellants / Appellants
-Vs-
1.Chinnarasu (Died) ... Defendant / Respondent / Respondent
2.Prema
3.Vijaya
4.Veeramani
5.Duraimani
6.Revathi
7.Renuga
8.Kavitha
9.Balamurugan
(Respondents 2 to 9 brought record as Lrs of the deceased
1st respondent vide order dated 17.03.2016) .... Respondents
https://www.mhc.tn.gov.in/judis/
S.A.(MD)No.1003 of 2007
PRAYER: Second Appeal filed under Section 100 of the Civil Procedure
Code, against the judgment and decree made in A.S.No.103 of 2005, dated
01.03.2007 on the file of the Principal Subordinate Court, Thanjavur
confirming the judgment and decree made in A.S.No.131 of 2004, dated
10.06.2005 on the file of the District Munsif Court, Thiruvaiyaru.
For Appellants : Mr.D.Rajagopal
For R1 : Died
For R2 to R9 : Mr.V.K.Vijayaragavan
In Cross Objection (MD)No.2 of 2008
1.Maruthambal
2.Paulraj
3.Singaravel
4.Apparaj ... Plaintiffs / Appellants / Appellants
-Vs-
1.Chinnarasu (Died) ... Defendant / Respondent / Respondent
2.Prema
3.Vijaya
4.Veeramani
5.Duraimani
6.Revathi
7.Renuga
8.Kavitha
9.Balamurugan
https://www.mhc.tn.gov.in/judis/
S.A.(MD)No.1003 of 2007
(Respondents 2 to 9 brought record as Lrs of the deceased
1st respondent vide order dated 17.03.2016) .... Respondents
PRAYER: Cross Objection filed under Order 41 Rule 22 of the Civil
Procedure Code, to set aside the judgment and decree in A.S.No.103 of
2005 on the file of the Principal Sub Court, Thanjavur, dated 01.03.2007
insofar as it is against the cross objector / respondent concerned reversing
the decree and judgment passed in O.S.No.131 of 2004 on the file of the
District Munsif Court, Thiruvaiyaru, dated 10.06.2005.
For Appellants : Mr.V.K.Vijayaragavan
For R1 : Died
For R2 to R9 : Mr.D.Rajagopal
COMMON JUDGMENT
The plaintiffs in O.S.No.131 of 2004 on the file of the District
Munsif Court, Thiruvaiyaru are the appellants in this second appeal.
2.The plaintiffs filed the said suit seeking the relief of partition.
The first plaintiff Maruthambal is the sister of the defendant Chinnarasu.
The other plaintiffs are the sons of the first plaintiff. In the suit, Chinnarasu
filed a counter claim in I.A.No.406 of 2004 seeking the relief of recovery of
possession. By judgment and decree dated 10.06.2005, the partition suit
filed by the appellants was dismissed. The counter claim filed by
Chinnarasu / defendant was decreed.
https://www.mhc.tn.gov.in/judis/
S.A.(MD)No.1003 of 2007
3.The plaintiffs filed A.S.No.103 of 2005 before the Principal Sub
Court, Thanjavur, challenging the dismissal of the partition suit. Strangely,
they failed to challenge the decree made in the counter claim in favour of
the defendant. During the pendency of the first appeal filed by them, the
appellants took out an application for withdrawal of the suit with liberty to
institute a fresh suit on the same cause of action. The first Appellate Court,
by Judgment and decree dated 01.03.2007, permitted withdrawal of the
appeal but declined to grant liberty to institute a fresh suit on the same
cause of action. Challenging the same, this second appeal came to be filed.
4. It was admitted on the following substantial questions of law:-
“Whether the lower appellate Court has committed an error in
law in dismissing the appeal after refusing to grant permission to
withdraw the suit with liberty to file a fresh suit on the same cause of
action without affording an opportunity to the appellant to exercise his
option either to withdraw or to proceed with the appeal on merits?”
5.For reasons, I am not able to discern, the defendant had also filed a
cross appeal. During the pendency of these proceedings, the defendant
Chinnarasu passed away. His legal heirs have been brought on record both
in the main appeal as well as in the cross appeal.
https://www.mhc.tn.gov.in/judis/
S.A.(MD)No.1003 of 2007
6.When the matter was taken up for final hearing, the learned counsel
appearing for the legal heirs of the cross objector / deceased defendant
informed the Court that the plaintiffs had originally failed to file an
independent appeal questioning the decree in the counter claim. After the
disposal of the first appeal, they filed an appeal questioning the decree in
the counter claim. Since there was a delay in filing the said appeal, I.A.No.
42 of 2008 was filed to condone the same. The learned Principal Sub
Judge, Thanjavur, by order dated 27.07.2009, dismissed I.A.No.42 of 2008.
As a result, the challenge to the counter claim was not even taken on record.
The first appeal got dismissed at the un-numbered stage itself. Questioning
the same, the plaintiffs have not filed any revision petition. If any revision
petition had been filed questioning the order dated 27.07.2009, dismissing
I.A.No.42 of 2008 in Un-numbered A.S.No. of 2008, then, the second
appeal and the civil revision petition could have been taken up together and
given a common disposal. But such is not the case here. In view of the
failure to challenge the decree in the counter claim, this second appeal is
not maintainable. The dismissal of I.A.No.42 of 2008 will operate as res
judicata.
https://www.mhc.tn.gov.in/judis/
S.A.(MD)No.1003 of 2007
7. In this view of the matter, there is no need to answer the substantial
question of law framed for consideration in the second appeal. The second
appeal is dismissed. No orders are necessary in the cross objection. The
cross objection stands dismissed. No costs. Consequently, connected
miscellaneous petition is closed.
13.07.2021
Internet : Yes/No
Index : Yes/No
rmi
To
1.The Principal Subordinate Court, Thanjavur.
2.The District Munsif Court, Thiruvaiyaru.
3.The Section Officer,
Vernacular Records,
Madurai Bench of Madras High Court,
Madurai.
https://www.mhc.tn.gov.in/judis/
S.A.(MD)No.1003 of 2007
G.R.SWAMINATHAN.J.,
rmi
Judgment made in
S.A.(MD)No.1003 of 2007
and
Cross Objection (MD)No.2 of 2008
and
M.P.(MD)No.1 of 2007
13.07.2021
https://www.mhc.tn.gov.in/judis/
