Madras High Court
Dr.K.Parameswaran vs R.Rangasamy on 13 July, 2021
C.M.A. No.1315 of 2021
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 13.07.2021
CORAM:
THE HONOURABLE Mr. JUSTICE S.S.SUNDAR
C.M.A. No.1315 of 2021
1.Dr.K.Parameswaran
2.B.Madhuranthakan .. Appellants
Versus
1.R.Rangasamy
2.O.A.Palaniswamy
3.Vinayaka Education Development Trust,
Rep. by Founder Chairman
O.A.Palaniswamy
S/o.Angappa Mudaliar
No.12, Annai Indhira Nagar,
Kovilpalayam, Pollachi Taluk,
Coimbatore District.
4.Einsteen
5.B.T.Pandian
6.B.T.Murali
7.B.T.Kumar
8.Mrs.Rathinam Sivakesan .. Respondents
Appeal filed under Order 43 Rule 1 of Civil Procedure Code, against
the Fair and Decreetal order passed in I.A.No.1 of 2019 in A.S.No.54 of
2013 dated 23.12.2020 on the file of learned 1st Additional District Judge,
Coimbatore.
https://www.mhc.tn.gov.in/judis/
C.M.A. No.1315 of 2021
For Appellants : Mr.M.Arunkumar
For Respondents : No Appearance for R1
Not Ready in Notice for R2 & R3
Mr.B.K.Sreenivasan for R4 to R8
O RD E R
This civil miscellaneous appeal has been filed to set aside the fair
and decreetal order passed in I.A.No.1 of 2019 in A.S.No.54 of 2013
dated 23.12.2020 on the file of the learned 1 st Additional District Judge,
Coimbatore.
2.The appellants in this appeal are the plaintiffs in the suit in
O.S.No.17 of 2005 before the Sub Court, Pollachi. The suit filed by the
appellants was dismissed by the trial Court by a judgement and decree
dated 03.04.2012.
3.Aggrieved by the judgement and decree of the trial Court, the
appellants preferred an appeal in A.S.No.54 of 2013 before the 1 st
Additional District Judge, Coimbatore. It is stated that the appeal was
originally presented before the Principal District Court, Coimbatore. It is
also admitted that later the appeal was transferred to the 1st Additional
District Court, Coimbatore. It is stated that the transferred Court issued
notice to the appellants for their appearance. Finding that the notice sent
https://www.mhc.tn.gov.in/judis/
C.M.A. No.1315 of 2021
to the appellants was returned with an endorsement “Door locked and
intimation given”, the lower appellate court dismissed the appeal for non-
prosecution, by assuming that the appellants failed to appear before the
Court even after intimation about the posting of the appeal.
4.Therefore, the appellants filed an application in I.A.No.1 of 2019
in A.S.No.54 of 2013 to restore the appeal which was dismissed by an
order dated 09.04.2018. Aggrieved by the same, the appellants have
preferred the above civil miscellaneous appeal before this Court.
5.The learned counsel for the appellants submitted that the petition
for restoration was filed without any delay. It is also brought to the notice
of this Court that it is not the case where the lower court has made any
observation regarding the conduct of appellant. In other wards, there is
no evidence or material to suggest that the appellants have caused delay
intentionally to the prejudice of the respondent. When a petition for
restoration is filed, the Court should always lien in favour of the appellants
and the endeavour of the Court is to see that the parties get fair
opportunity to conduct the case and get a decision on merits. In the
present case, it is stated that the petition for restoration was filed by the
present counsel who came to the scene by change of vakalat. The case of
the appellants is that the previous counsel engaged by the appellants did
https://www.mhc.tn.gov.in/judis/
C.M.A. No.1315 of 2021
not even communicate the order of dismissal of the appeal for non-
prosecution. Even then, the appellants filed the petition for restoration
without any delay. The appeal was filed in time and there is nothing to
suggest that the delay had caused any irreparable injury to the
respondent. Even in cases where there is enormous delay in filing a
petition for restoration, the Hon'ble Supreme Court has ruled that a
liberal, pragmatic, justice oriented and non-pedantic approach should be
shown while dealing with an application for condonation of delay.
6.Having regard to the settled law and the principles taken and
followed by this Court and the Hon'ble Supreme Court in several
judgments/precedents, this Court is unable to accept the reasons adduced
by the lower appellate court for dismissing the petition for restoration.
7.The lower appellate Court has dismissed the petition only for the
following reasons:
a) The appellants have not produced medical certificates
to prove their contentions.
b) The Doctors who had treated the 1st
appellant/petitioner are not examined.
https://www.mhc.tn.gov.in/judis/
C.M.A. No.1315 of 2021
c) Though it is stated that the 1st appellant/petitioner
was taking treatment, there is no explanation why the 2nd
appellant could not give instructions to prosecute the appeal.
There is no evidence to prove that the 1st appellant was
permanently staying in Bangalore.
8.The respondents have not produced any concrete evidence to
disprove the reasons stated by the appellants for their non-appearance on
09.04.2018. Merely because the appellants or their counsel did not appear
on 09.04.2018, it should not be the position that the appeal should be
dismissed for non-prosecution and that the appeal cannot be restored
even if sufficient reason is stated. The appellants have given sufficient
reasons. While analysing whether the reasons are genuine, the Court has
to apply its mind with the probabilities. Unless there is positive evidence
against the appellants, the Court cannot simply disbelieve the reasons
and dismiss the petition, on the ground that there is no positive proof to
substantiate the reasons for non-appearance on a single day.
9.Since the attitude of the Court below as seen from the order is
contrary to the principles settled and in order to to give a fair opportunity
to the appellants to prosecute the appeal, this Court is unable to sustain
https://www.mhc.tn.gov.in/judis/
C.M.A. No.1315 of 2021
the order passed by the learned 1st Additional District Judge, dismissing
the petition for restoration. Therefore, the order made in I.A.No.1 of 2019
in A.S.No.54 of 2013 dated 23.12.2020 on the file of the learned 1st
Additional District Judge, Coimbatore is set aside.
10.Accordingly, this civil miscellaneous appeal stands allowed. No
Costs.
11.The learned counsel appearing for the respondents 4 to 8
submitted that the suit is filed under Section 92 of CPC and therefore a
regular appeal is maintainable only before this Court. It is noted that,
from the judgement and decree, this Court is unable to come to the
conclusion as to whether the suit was filed under Section 92 of CPC., after
getting permission from the Court. In the said circumstances, it is open to
the respondents to raise objections before the lower / Appellate Court. In
case the preliminary objections raised by the respondents with regard to
maintainability of appeal can be sustained on facts, the lower appellate
Court may pass appropriate orders returning the appeal papers, so that
the appellants can prefer an appeal before the appropriate forum.
13.07.2021
Index:Yes
Speaking order
ssr
https://www.mhc.tn.gov.in/judis/
C.M.A. No.1315 of 2021
To
The Ist Additional District Judge, Coimbatore.
https://www.mhc.tn.gov.in/judis/
C.M.A. No.1315 of 2021
S.S.SUNDAR. J.,
ssr
C.M.A. No.1315 of 2021
13.07.2021
https://www.mhc.tn.gov.in/judis/
