Madras High Court
Pitchaikani Ammal vs Marikani Ammal on 3 March, 2022
CMA.(MD)No.85 of 2011
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED : 03.03.2022
CORAM :
THE HONOURABLE MR.JUSTICE RMT.TEEKAA RAMAN
CMA (MD)No.85 of 2011
and
MP.(MD)No.1 of 2011
1.Pitchaikani Ammal
2. Sahadevan
3. Chandra
4. Jenagan
5. Velan
6. Sekar
7. Indirani
8. Saraswathi ... Appellants
Vs.
Kannipalam Ammal (Died)
Jeyarajakani Ammal (Died)
1. Marikani Ammal
2. Rathinapandi Nadar
3. Ganapathi Pandi
4. Chandrasekar
5. Saraswathi ...Respondents
1/6
https://www.mhc.tn.gov.in/judis
CMA.(MD)No.85 of 2011
PRAYER: Civil Miscellaneous Appeal filed order 43 Rule 1 (t) of CPC, to
set aside the fair and decreetal order dated 06.07.2010 in I.A No.94 of 2009
in A.S No.68 of 2004 on the file of the Sub Court, Valliyoor.
For Appellant : Mr.P.Bala Murugan
for M/s. Jaya Paul Associates
For Respondent : Mr.S.J.Chakkaravarthy
for M/s.Eddy & Emboss Law Firm.
JUDGMENT
The appellants are the plaintiffs in O.S.No.9 of 1988 before the
learned Principal District Munsif, Valliyoor. The suit was filed for the
relief of recovery of possession. The appellant has also filed a suit in
O.S.No.629 of 1988, before the same Court, for the relief of declaration of
title to the suit property and also for permanent injunction. After a common
trial, both the suits have been dismissed by a common judgement. Hence
the appellants have preferred an appeal before the Principal Subordinate
Court, Tirunelveli, in A.S.No.76 of 2004 which is made over to Principal
District and Sessions Judge, Tirunelveli and A.S.No.68 of 2004 is made
over to the Subordinate Judge, Valliyoor.
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CMA.(MD)No.85 of 2011
2.While, the A.S.No.76 of 2004, which is arising out of a
common judgment, is pending before the Principal Subordinate Judge,
Tirunelveli, the A.S.No.68 of 2004 was listed before the Subordinate Court,
Valliyoor and the same was dismissed for default on 02.08.2004. Hence
the plaintiff / appellant has filed two interlocutory applications. One under
Section 5 of the Limitation Act to condone the delay and another
interlocutory application to restore the first appeal which was dismissed for
default. The condone delay application in I.A.No.309 of 2007 was allowed
thereby, the delay of 1164 days was condoned. Consequently I.A.No.94 of
2009 for restoration of the appeal was taken up and the same was dismissed
and hence this Civil Miscellaneous appeal.
3.Heard the rival submissions made by the parties.
4.Arising out of a common judgment, O.S.No.9 of 1988 filed by
the one party and O.S.No.629 of 1988 filed by the other party, a common
judgment was rendered and two separate appeals have been filed.
However, by administrative action, one appeal was made over to I
Additional Subordinate Court. It has put a trial and it appears to be the
reason for the dismissal is for default and hence an opportunity has to be
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CMA.(MD)No.85 of 2011
given since the other A.S.No.76 of 2004 is still pending with the Principal
Subordinate Judge, Tirunelveli.
5.Accordingly, this Civil Miscellaneous Appeal is allowed. The
order dated 06.07.2010 made in I.A.No.94 of 2009 in A.S.No.68 of 2004
on the file of the Subordinate Judge, Valliyoor, is set aside and A.S.No.68
of 2004 is ordered to be restored to file and also directed to be transferred
to the Principal Subordinate Court, Tirunelveli, to be tried along with
A.S.No.76 of 2004 and the learned Principal Subordinate Judge, Tirunelveli
shall dispose of the same within a period of four months from the date of
receipt of a copy of this order. No costs. Consequently, connected
miscellaneous petition is closed.
03.03.2022
Index : Yes/No
Internet : Yes / No
pnn
https://www.mhc.tn.gov.in/judis
CMA.(MD)No.85 of 2011
To
1.The Principal Subordinate Judge, Tirunelveli.
2.The I Additional Subordinate Judge, Tirunelveli.
3.The Subordinate Judge, Valliyoor.
4.The Record Clerk, VR Section,
Madurai Bench of Madras High Court, Madurai.
https://www.mhc.tn.gov.in/judis
CMA.(MD)No.85 of 2011
RMT.TEEKAA RAMAN, J.
pnn
CMA (MD)No.85 of 2011
and
MP.(MD)No.1 of 2011
03.03.2022
https://www.mhc.tn.gov.in/judis
