Sivalingam vs Uthandalakshmi Ammal(Died)
2021 Latest Caselaw 19661 Mad

                                                                 1           S.A.No.2073 OF 2003

                           BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT

                                                DATED: 24.09.2021

                                                       CORAM

                        THE HONOURABLE MR.JUSTICE G.R.SWAMINATHAN

                                                S.A.No.2073 of 2003


                     Sivalingam                          ... Appellant / Respondent /
                                                              Plaintiff

                                                         Vs.
                     1. Uthandalakshmi Ammal(Died)
                     2. Nagarathinam Iyer(Died) ... Respondents / Appellants /
                                                     Defendants

                     3. V.N.Sastha Subramanian
                     4. N.Sambamoorthy
                     5. N.U.Manikandan
                     6. N.Rajam
                     7. N.Meenakshi
                     8. S.V.N.Maheswari
                     9. N.Geetha
                     10.N.Jeyashree
                        (R-3 to R-10 are suo motu brought on record as LRs. Of the
                     deceased R-1 and R-2 vide Order dated 09.09.2021)
                                                     ... Respondents

                                   Prayer: Second appeal filed under Section 100 of
                     C.P.C., to set aside the judgment and decree dated 01.08.2003
                     and made in A.S.No.26 of 1997 on the file of the Subordinate
                     Court         at   Periyakulam,   Madurai   District,    reversing     the
                     judgment and decree dated 24.02.1995 made in O.S.No.693 of
                     1985 on the file of the District Munsif, Periyakulam, Madurai
                     District.
https://www.mhc.tn.gov.in/judis/
                     1/6
                                                                2        S.A.No.2073 OF 2003

                                   For Appellant     : No appearance.
                                   For Respondents : M.Saravanan

                                                       ***


                                                   JUDGMENT

The plaintiff in O.S.No.693 of 1985 on the file of the

District Munsif, Periyakulam, is the appellant herein.

2. It is admitted that the suit property belongs to the

respondents. The plaintiff sought the relief of injunction by

claiming that he is a cultivating tenant. It is seen that the

plaintiff placed reliance on Ex.A.1. But he admitted during his

evidence that the said document came into existence without

notice to the respondents herein. Based on Ex.A.1, the trial

Court decreed the suit. Aggrieved by the same, the defendants

filed A.S.No.26 of 1997 before the Sub Court, Periyakulam.

The first appellate Court by the impugned judgment and

decree dated 01.08.2003 set aside the decision of the trial

Court and allowed the appeal and dismissed the suit.

Challenging the same, this second appeal came to be filed.

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

3. This second appeal was admitted on the following

substantial question of law:-

“ Whether the lower appellate Court is

right in relying upon Ex.B.1 to Ex.B.8, when the

defendant has not let in oral evidence and when

there was no opportunity for the plaintiff to

cross examine the defendant on Ex.B.1 to

Ex.B.8?

4. It appears that the interim order of injunction was

also granted. During the pendency of the appeal, both the

respondents passed away and their legal heirs have been

brought on record. When the case was taken up on

07.09.2021, there was no representation for the appellant.

Therefore the matter was directed to be listed on 09.09.2021

under the caption “for dismissal”. When the matter was again

taken up on 20.09.2021, there was no representation on

behalf of the appellant. It was again listed on 24.09.2021.

Even today there was no appearance on the side of the

appellant.

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5. It appears that the appellant deliberately wants to

drag on the proceedings. The learned counsel appearing for

the respondents wanted this Court to adjudicate the matter on

merits. I cannot do so. When the appellant was not present on

several occasions, this Court has to necessarily dismiss this

appeal.

6. This second appeal is dismissed for

non-prosecution. In view of the conduct of the appellant,

Registry shall number the petition for restoration, only if the

appellant remits a sum of Rs.30,000/-(Rupees Thirty Thousand

only) towards cost to the credit of the Tamil Nadu Legal

Services Authority, Madurai Bench of Madras High Court,

Madurai. No costs.

                                                                                24.09.2021

                     Index    : Yes / No
                     Internet : Yes/ No
                     PMU

Note: 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.

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

To:

1. The Subordinate Judge, Periyakulam, Madurai District.

2. The District Munsif, Periyakulam, Madurai District.

3. The Record Keeper, V.R.Section, Madurai Bench of Madras High Court, Madurai.

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

G.R.SWAMINATHAN,J.

PMU

S.A.No.2073 of 2003

24.09.2021

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