Madras High Court
C.Subramanian vs B.Suriyakala on 21 October, 2021
C.R.P(MD)Nos.1553 and 1554 of 2021
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 21.10.2021
CORAM
THE HON'BLE MR.JUSTICE A.D.JAGADISH CHANDIRA
C.R.P(MD) Nos. 1553 and 1554 of 2021
and
C.M.P(MD)No.8521 of 2021
C.Subramanian ... Petitioner/Petitioner/Respondent in
both petitions
Vs.
1.B.Suriyakala,
2.Minor Arjun ...Respondents/Respondents/petitioners
in both petitions
PRAYER IN BOTH PETITIONS: Civil Revision Petition filed under
Article 227 of Constitution of India, to set aside the return order dated
31.08.2021 passed in unnumbered I.A.No.... of 2021 in M.C.No.62 of
2020 and further for a direction directing the Learned Family Court,
Tuticorin to number the unnumbered I.A.No...... of 2021 and proceed the
same on merits for adjudication.
https://www.mhc.tn.gov.in/judis/
C.R.P(MD)Nos.1553 and 1554 of 2021
For Petitioner : Mr.S.Rajasekar
For Respondents : No appearance
COMMON O R D E R
C.R.P(MD) No.1553 of 2021 has been filed to set aside the return
order dated 31.08.2021 passed in unnumbered I.A.No.... of 2021 in
M.C.No.62 of 2020 and further for a direction directing the Family
Court, Tuticorin to number the unnumbered I.A.No...... of 2021 and
proceed the same on merits for adjudication.
2.C.R.P(MD) No.1554 of 2021 has been filed to set aside the
return order dated 31.08.2021 passed in unnumbered I.A.No.... of 2021
in M.C.No.62 of 2020 and further for a direction directing the Learned
Family Court, Tuticorin to number the unnumbered I.A.No...... of 2021
and proceed the same on merits for adjudication
3.The learned counsel for the petitioner submits that the revision
petitioner is the respondent filed in M.C.No.62 of 2020 by his wife and
child, which is pending on the file of the Family Court, Thoothukudi.
The petitioner is presently employed at USA and thereby he is unable to
https://www.mhc.tn.gov.in/judis/
C.R.P(MD)Nos.1553 and 1554 of 2021
appear in person had given Power of Attorney to his father to represent
him before the Courts in India. He would further submit that the
petitioner has earlier filed HMOP No.354 of 2019 for divorce
before the II Additional District and Sessions Court, Thiruvallur at
Poonamallee which was later transferred to Sub Court Tuticorin on the
instance of the respondent and it is renumbered as HMOP No.40 of 2020
is still pending on the file of the Sub Court, Tuticorin. The petitioner's
father as Power of Attorney is representing the petitioner before the Sub
Court. Meanwhile, the respondents have filed M.C.No.62 of 2020 on the
file of the Family Court, Tuticorin seeking for maintenance for her and
her minor son. Since the petitioner was unable to come from USA the
trial Court has passed an EX-parte order on 29.07.2021. The petitioner
through his power agent has filed a petition to set aside an ex-parte order
and also filed a petition to permit to represent through power agent and
also to set aside the exparte order passed on 29.07.2021. The trial Court
without taking into consideration the judgments of this Hon'ble Court in
Nathiya Faru Vs. Rojan Roux [2009 5LW 353] and Ambika
Vs.Arunachalam @ Arun [CRP (MD)No.817 of 2019] has returned the
petition. He would submit that one of the reasons stated by the Registry
https://www.mhc.tn.gov.in/judis/
C.R.P(MD)Nos.1553 and 1554 of 2021
of the Family Court is that the power has been given to file legal
proceedings before the Subordinate Court Poonamallee. The Registry is
refusing to accept the fact that in the same Power of Attorney at clause 4,
the power of Attorney is authorised to file and defend any suits, petitions
or other proceedings in all Courts, Tribunals in my name and on my
behalf and to do all other necessary things as my attorney deems fit and
proper and if the power of attorney is not accepted and the petition is not
re-numbers the petitioner will be put to serious prejudice.
4. Heard the learned counsel appearing for the petitioner and
perused the materials available on record.
5. Though clause 4 of the Power of Attorney authorises the
petitioner to defend and file any suit, the Registry of the Family Court,
Thoothukudi, had followed a rigid approach and returned the petition. In
the opinion of this Court, having permitted the petitioner to represent
through power of attorney his father in H.M.O.P.No.40 of 2020, no
prejudice would be caused to the respondent by permitting him to be
represented by his father in M.C.No.62 of 2020.
https://www.mhc.tn.gov.in/judis/
C.R.P(MD)Nos.1553 and 1554 of 2021
6. In view of the above circumstsances of the authorities referred
to above, this Court deems it appropriate to allow the Civil Revision
Petition, hence the Civil Revision Petition stands allowed. No costs.
However, it is made clear that whenever the Trial Court insists for the
presence of the petitioner, he should appear before the Court.
Consequently connected miscellaneous petition is also closed.
21.10.2021
Index : Yes/No
Internet: Yes/No
sn/aav
Note :
1. Registry is directed to return the original affidavit to the learned
counsel for the petitioner after substituting with the photostat copies.
2. In view of the present lock down owing to COVID-19 pandemic, a
web copy of the order may be utilized for official purposes, but, ensuring
that the copy of the order that is presented is the correct copy, shall be
the responsibility of the advocate/litigant concerned.
To
The Family Court, Tuticorin.
https://www.mhc.tn.gov.in/judis/
C.R.P(MD)Nos.1553 and 1554 of 2021
A.D.JAGADISH CHANDIRA, J.,
sn/aav
C.R.P(MD)Nos.1553 and 1554 of 2021
21.10.2021
https://www.mhc.tn.gov.in/judis/
