P.Vasanthi vs K.N.Lakshmanan
2021 Latest Caselaw 5854 Mad

                                                                            C.M.A.No. 1106 of 2020


                                   IN THE HIGH COURT OF JUDICATURE AT MADRAS

                                                DATED : 05.03.2021

                                                         CORAM

                                   THE HONOURABLE MR.JUSTICE S.M.SUBRAMANIAM

                                               C.M.A.No. 1106 of 2020


                     P.Vasanthi                                                 ..Appellant


                                                          Vs

                     1.K.N.Lakshmanan

                     2.M/s.Raj & Co.,
                       No.8, Sunkurama Chetty Street,
                       1st Floor, Chennai - 1.

                     3.Saraswathy                                               ..Respondents


                     Prayer : Appeal filed under Order 43 Rule 1 (t) CPC against the

                     judgment and decree made in C.M.P.No. 10 of 2017 in A.S.No. 252

                     of 2013 dated 08.01.2019 on the file of XVIth Additional City Civil

                     Court, Chennai.



                                     For Appellant   :         Mr.B.Nedunchezhiyan

                                     For Respondents :         R1 – Died
                                                               No appearance for R2 & R3




https://www.mhc.tn.gov.in/judis/
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                                                                                    C.M.A.No. 1106 of 2020



                                                            JUDGMENT

The fair and decreetal order dated 08.01.2019 passed in

C.M.P.No.10 of 2017 in A.S.No.252 of 2013 is under challenge in

the present civil miscellaneous appeal.

2. The plaintiff is the appellant and the suit was instituted for

declaration. The suit was dismissed and thereafter the

appellant/plaintiff filed an appeal suit in A.S.No.252 of 2013. The

suit was pending from the year 2013 and the learned counsel

appearing for the appellant made a submission that he had

appeared before the Court on all occasions except one or two

occasions and during the last occasion, the appeal was dismissed for

non-prosecution in view of the fact that the counsel could not

appear during the evening session. The dismissal of the appeal was

on 23.08.2016 and the docket order of the First Appellate Court

reads as under:

“Counsel for Appellant present. P.O.12.30 – Counsel for R3 present. 3.50 P.M.- Appellant absent No representation from 26.02.2015 onwards. No progress. In the absence of appellant No valid reason for further. Adjournment. Hence Appeal dismissed for Non-

                                   Prosecution.       CMP    74/15   in   AS    252/13      –

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                                                                           C.M.A.No. 1106 of 2020

Petitioner absent No representation. In the absence of Petitioner No valid reason for further adjournment. Hence Petition dismissed for Non- Prosecution.

Nature of Disposal : Dismissed.

Disposal Date : 23.08.2016”

3. Learned counsel appearing on behalf of the appellant

before this Court made a submission that he himself appeared

before the First Appellate Court also and during the hearing, he

appeared and on the date of dismissal i.e., on 23.08.2016, in the

morning when the matter was called and made a representation

that he argued the appeal and no further arguments are required.

The matter was passed over by the First Appellate Court and when

the matter is called-up during the afternoon session, the Court

passed the said order by stating that the appeal was dismissed for

non-prosecution. Thus, the appellant filed an application to restore

the appeal and the said petition for restoration was also dismissed.

Thus, the present appeal is filed.

4. This Court is of the considered opinion that all the appeal

suits are to be decided on merits and in accordance with law.

Undoubtedly, if the conduct of the parties shows that the appeal suit

is prolonged with an intention then the Court can draw an inference

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C.M.A.No. 1106 of 2020

and not otherwise. If the parties intentionally prolonged the suit or

appeal suit then the Court is empowered to reject the application.

On one or two hearings on account of unaccounted reason and

unavoidable circumstances and that the counsel could not appear,

lenient view is to be taken for the purpose of restoration of appeal

or suit.

5. In the present case, the appeal was dismissed on

23.08.2016 and even as per the docket order, the counsel for the

appellant was present and it was passed over. Thereafter, during

the afternoon session, it was again called and the appeal was

dismissed for non-prosecution. This being the factum established,

this Court is of the opinion that the appeal suit is to be decided on

merits and in accordance with law by affording opportunity of

hearing to all the parties concerned.

6. In view of the above, the fair and decreetal order dated

08.01.2019 passed in C.M.P.No.10 of 2017 in A.S.No.252 of 2013

stands restored and the civil miscellaneous appeal is allowed.

Consequently, C.M.P.No. 6962 of 2020 is closed. The First

Appellate Court is requested to dispose of the appeal suit as

expeditiously as possible, preferably, within a period of three

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C.M.A.No. 1106 of 2020

months from the date of receipt of a copy of this judgment. The

parties to the appeal suit are directed to co-operate for early

disposal of the appeal and the adjournments on the flimsy grounds

are to be rejected in limine.

05.03.2021

Index: Yes ssm

To

The XVI Additional City Civil Court, Chennai.

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

C.M.A.No. 1106 of 2020

S.M.SUBRAMANIAM, J.

(ssm)

C.M.A.No. 1106 of 2020

05.03.2021

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