Madras High Court
S.Abubakkar vs Senthamil Selvi on 26 October, 2021
1 A.S.(MD)NO.70 OF 2014
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 26.10.2021
CORAM
THE HONOURABLE MR.JUSTICE G.R.SWAMINATHAN
A.S.(MD)No.70 of 2014 and
M.P.(MD)No.2 of 2014
S.Abubakkar ... Appellant / Plaintiff
Vs.
1. Senthamil Selvi
2. T.Saravanaraj
3. T.Anandharaj
4. T.Santhanam
5. T.Sriganesh
6. T.Karunanidhi
7. G.Amudha
8. S.Hemalatha
9. T.Jaya
10.S.Sandhiya @ S.Sathiya
11.M.Nagaraj
12.P.Muthuramalingam
13.M.Podhumponnu
14.M.Balasubramani
15.D.Vijaya
16.A.Naganathan
17.N.Jegadeesh(Minor)
18.M.Malar
19.M.Hussain Abdul Kadar ... Respondents /
Defendants
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2 A.S.(MD)NO.70 OF 2014
Prayer: Appeal suit filed under Section 96 of C.P.C.,
to set aside the judgment and decreetal order dated
07.11.2013 passed by the I Additional District Judge, Madurai,
in O.S.No.53 of 2008 and allow the first appeal.
For Appellant : No appearance.
For R-1 to R-14,
R-16 & R-18 : Mr.M.S.Suresh Kumar
For R-15 : No appearance.
***
JUDGMENT
The plaintiff in O.S.No.53 of 2008 on the file of the I
Additional District Judge, Madurai, is the appellant in this
appeal.
2. The said suit was filed by the appellant for specific
performance directing defendants 1 to 6 to execute sale deed
in his favour after receiving a sum of Rs.14,78,700/-. The
husband of the first defendant T.Senthamil Selvi filed O.S.
No.432 of 2005 on the file of the III Additional Sub Court,
Madurai, for permanent injunction restraining the appellant
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3 A.S.(MD)NO.70 OF 2014
herein from interfering with the possession and enjoyment of
the suit property. The said suit was transferred and
renumbered as O.S.No.5 of 2011 and tried along with O.S.
No.53 of 2008. After filing the suit, Thangavel passed away
and his legal heirs, namely, T.Senthamil Selvi, T.Saravanaraj,
T.Anandharaj, T.Santhanam and T.Sriganesh came on record.
Both the suits were tried together and disposed of by a
common judgment dated 07.11.2013. While O.S.No.53 of 2008
was dismissed, O.S.No.5 of 2011 was decreed as prayed for.
Though there is common judgment, there are two separate
decrees. Abubakar interestingly filed only one appeal, namely,
A.S.No.70 of 2014 challenging the judgment and decree
passed in O.S.No.53 of 2008. He did not file any appeal
questioning the judgment and decree passed in O.S.No.5 of
2011. Be that as it may, the matter was posted for final
disposal on 19.04.2017 before his Lordship Hon'ble Mr.Justice
C.V.Karthikeyan. I find the following endorsement in the Court
docket:
“ Both the learned counsel for the
appellant and the respondents are present.
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4 A.S.(MD)NO.70 OF 2014
2. The learned counsel for the
respondents states that the respondents are
senior citizens. This Court had fixed the date for
hearing of appeal in March 2017. Today we are
in April 2017. It is also represented that the
appeal has been filed by the plaintiff. The suit
was for specific performance. The suit was
dismissed. The balance amount has been
deposited to the Court by the respondents herein
who were the defendants in the suit.
3. The learned counsel for the
respondents further states that the date may be
fixed for hearing of the appeal. By consent of
both the counsel, the appeal is to be heard on
06.06.2017 without fail. ”
The matter was taken up on 06.06.2017 and the following
endorsement was made:-
“ Heard the learned counsel for the
respondents in part. It has already been
informed and also brought to the notice much
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5 A.S.(MD)NO.70 OF 2014
earlier that the respondents are senior citizens
and consequently, the appeal should be taken
up. Post the matter under the caption “Part
Heard” on 14.06.2017 for next hearing. ”
3. On 14.06.2017, the learned counsel appearing for
the appellant sought time. The case was treated as part heard.
Later, it was de part-heard on 28.06.2017 and that is why, it
came to be listed before me. When the case was listed on
22.10.2021, on the said date there was no representation on
behalf of the appellant. The matter was directed to be listed
on 26.10.2021 under the caption “for dismissal”. The learned
counsel appearing for the appellant submitted that since his
client proposed to engage a Senior counsel, he is not in a
position to get along with the matter. I told the counsel that I
am prepared to accommodate him and asked to give a date
before the vacation starts. The learned counsel could not give
any commitment.
4. I reminded the learned counsel that the case was
posted under the caption “for dismissal”. The learned counsel
thereupon stated that he is leaving to this Court. When the
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6 A.S.(MD)NO.70 OF 2014
matter was taken up for hearing during the course of the day,
there was no representation for the appellant. I am conscious
that a civil appeal cannot be disposed on merits, when the
appellant is absent. The learned counsel appearing for the
respondents submitted that the appellant is enjoying an order
of interim injunction. He also pointed out that the first
respondent herein, namely, T.Senthamil Selvi is a senior
citizen.
5. In view of the conduct of the appellant before this
Court as well as before my predecessor, I cannot rest with a
mere dismissal for default. The matter was posted for final
disposal in the year 2017 itself. Since the first appeal is a
continuance of the original proceedings and since the order of
interim injunction restraining the respondents from alienating
the suit property is operating, he is not evincing interest to
prosecute the appeal. The learned counsel appearing for the
contesting respondents informs me that the order of interim
injunction granted in favour of the appellant was also made
absolute on 14.09.2015. Taking note of the conduct of the
appellant, the appeal suit is dismissed for default. M.P.(MD)No.2
of 2014 is also dismissed. Since the appellant has shown obstinacy in not
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7 A.S.(MD)NO.70 OF 2014
prosecuting the appeal, any application for restoration of this
appeal will not be entertained unless the appellant remits a
sum of Rs.1,00,000/- (Rupees One Lakh only) towards cost
payable to the credit of the Tamil Nadu Legal Services
Authority, attached to the Madurai Bench of Madras High
Court, Madurai. No costs.
26.10.2021
Index : Yes / No
Internet : Yes/ No
PMU
Note: 1. 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.
2. Issue Order copy on 28.10.2021.
To:
1. The I Additional District Judge,
Madurai.
2. The Record Keeper, V.R.Section,
Madurai Bench of Madras High Court, Madurai.
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8 A.S.(MD)NO.70 OF 2014
G.R.SWAMINATHAN,J.
PMU
A.S.(MD)No.70 of 2014 and
M.P.(MD)No.2 of 2014
26.10.2021
https://www.mhc.tn.gov.in/judis/
