Madras High Court
Chandrasegaran vs Kumari Jayachandran on 22 April, 2022
C.M.A.No.2956 of 2021
IN THE HIGH COURT OF JUDICATURE OF MADRAS
DATED : 22.04.2022
CORAM:
THE HONOURABLE Ms. JUSTICE P.T. ASHA
C.M.A.No.2956 of 2021
Chandrasegaran ...Appellant/Petitioner/Plaintiff
Vs.
1.Kumari Jayachandran
2.B.Jayachandran …Respondents/Respondents/Defendants
Prayer: Civil Miscellaneous Appeal is filed under Order 43 Rule 1(r)
of the Code of Civil Procedure against the Fair and Decreetal order
dated 26.07.2021 in I.A.No.2 of 2019 in O.S.No.283 of 2014 on the
file of the learned Principal District Judge, Kancheepuram District,
Chengalpattu.
For Appellant : Mr.D.R. Arun Kumar
For Respondents : Mr.C.Jagadish
1/8
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C.M.A.No.2956 of 2021
JUDGMENT
The plaintiff in the suit O.S.No.283 of 2014 has filed this appeal
challenging the dismissal of his application for restoring the suit filed
by him was dismissed for default on 26.06.2019.
2.The facts in brief are as follows:
The appellant had filed the suit O.S.No.283 of 2014 on the file
of the learned Principal District Judge, Kancheepuram District,
Chengalpattu, seeking an injunction restraining the defendants 1 and
2, from interfering or encroaching, dealing, dispossession and
disturbing the plaintiff's peaceful possession and enjoyment of the
schedule premises and for an injunction, restraining the 3rd defendant
from registering the schedule mentioned property to the third parties
and for declaring the Sale Deed executed on 04.10.2012 registered as
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C.M.A.No.2956 of 2021
Document No.10627 of 2012 before the 3rd defendant as null and
void.
3.It appears that on 26.06.2019, the suit was dismissed for
default. Therefore, the appellant had taken out an application on
28.06.2019 to restore the suit back to file. The 2nd respondent had
filed his counter which was adopted by the 1st respondent in which he
had inter alia contended that the petitioner who has no case on merits
and is only trying to drag on the proceedings. It was their contentions
that the Written Statement was filed on 07.11.2015 and from April
2016, the suit was ripe for trial. Finally, the suit was posted in the list
on 18.06.2019. However, instead of conducting the case, the
petitioner/plaintiff had chosen to change his Counsel. Thereafter, on
26.06.2019, when the matter was listed, nearly three years after the
Written Statement filed, an amendment application was filed without
proceeding with the trial. Therefore, the Court below had chosen to
dismiss the suit for default since the plaintiff was not coming forward
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C.M.A.No.2956 of 2021
to enter the box. The learned Principal District Judge, Kancheepuram
District, Chengalpattu, by her order dated 26.06.2019 was pleased to
dismiss the application on the ground that the petitioner was not
serious in prosecuting the case and that the appellant/plaintiff was
only trying to protract the proceedings. Challenging the above order,
the plaintiff/appellant is before this Court.
4.Heard the learned counsel appearing on either side and
perused the papers.
5.The impugned order is in respect of Interlocutory Application
for restoring the suit which was dismissed for default on 26.06.2019.
The records would show that within two days of the suit being
dismissed for default, the plaintiff has filed an application to restore
the suit. Therefore, it cannot be said that the petitioner had delayed
the filing of file the application for restoration. On the contrary, the
application has been made promptly within two days. However, as
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C.M.A.No.2956 of 2021
pointed out by the learned counsel for the respondents/defendants, it
appears that the plaintiff has filed the suit in the year 2014 and though
the Written Statement had been filed by the defendants on
07.11.2015, the plaintiff had not taken any steps whatsoever to
proceed with the trial. It is further seen that on 18.06.2019, when the
matter was posted in the list, the plaintiff had changed the Counsel
and therefore, the trial Court had adjourned the matter to 26.06.2019.
Despite the fact that the suit was posted in the list the
petitioner/plaintiff had not chosen to enter the box. Therefore, the
learned Judge had rightly dismissed the suit for default. However,
since the petitioner has filed the application for restoration within a
period of two days, the learned Principal District Judge,
Kancheepuram District, Chengalpattu, could have allowed the petition
on costs and proceeded to dispose of the suit at the earliest.
6.Be that as it may, taking into consideration the fact that the
application for restoration has been filed immediately, i.e., within two
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C.M.A.No.2956 of 2021
days, the suit should be restored to file. This Court can however not
ignore the indifference shown by the plaintiff in prosecuting the
proceedings. Therefore, this Civil Miscellaneous Appeal will be
allowed on condition that a sum of Rs.25,000/- is paid to the
respondents on or before 28.04.2022.
7.On 26.06.2019, an Interlocutory Application for amendment
has been filed and the same has been numbered as I.A.No.1 of 2019.
Therefore, the learned Principal District Judge, Kancheepuram
District, Chengalpattu, shall proceed to dispose of I.A.No.1 of 2019
within one month from the date of receipt of a copy of this order and
the suit has to be disposed of within two months thereafter.
Post on 29.04.2022 for reporting compliance.
22.04.2022
Index : Yes/No
Internet : Yes/No
Speaking order / Non speaking order
mps
Note to office:
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C.M.A.No.2956 of 2021
Issue order copy on 25.04.2022
To
The Principal District Judge,
Kancheepuram District,
Chengalpattu.
P.T. ASHA, J,
mps
C.M.A.No.2956 of 2021
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C.M.A.No.2956 of 2021
22.04.2022
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