Madras High Court
G.Gajapathy vs V.Muthukrishnan on 12 October, 2022
S.A.No.577 of 2017
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 12.10.2022
CORAM
THE HONOURABLE Ms. JUSTICE P.T. ASHA
S.A.No.577 of 2017
and
C.M.P.No.14388 of 2017
G.Gajapathy
... Appellant/Respondent/Plaintiff.
Vs.
V.Muthukrishnan
... Respondent/ Appellant/Defendant.
PRAYER: Second Appeal filed under Section 100 of the Code of Civil
Procedure against the Judgement and Decree dated 06.07.2016 made in
A.S.No.162 of 2015 on the file of the Court of XVII Additional Judge, City
Civil Court, Chennai, reversing the judgement and decree dated 26.02.2015
made in O.S.No.2941 of 2012 on the file of the III Assistant Judge, City
Civil Court, Chennai.
For Appellant : Mr.R.Agilesh
For Respondent : Mr.M.Jaikumar
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S.A.No.577 of 2017
JUDGMENT
Aggrieved by the judgment and decree passed by the XVII Additional
City Civil Court, Chennai in A.S.No.162 of 2015, the respondent is the
appellant before this Court.
2. The substantial question of law that arises for consideration in the
above Second Appeal is "Whether the Lower Appellate Court was correct
in law in allowing the appeal despite the fact that the appellant had not
appeared on the date fixed contrary to the provisions of Order 41 Rule 17
of the Code of Civil Procedure".
3. Considering the short point involved in the Second Appeal, I do not
propose to set out the pleadings of the parties except for stating that the
respondent/plaintiff had filed a suit for permanent injunction in O.S.No2941
of 2012 on the file of the XVII Additional Judge, City Civil Court, Chennai
restraining the defendant, his men, agents or anybody on his behalf from
dealing with the constructed portion described as the "A" schedule property
by sale, transfer, mortgage, lease or in any other manner, expect the
plaintiff, and also for a permanent injunction restraining the defendant, his
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S.A.No.577 of 2017
men, agents or anyone claiming on his behalf from interfering with the
plaintiff’s peaceful possession and enjoyment of the portion of the property
described as the "B" schedule.
4. The above suit O.S.No.2941 of 2012 was decreed by a judgment
and decree dated 26.02.2015. The defendant had taken up this judgment
and decree in appeal before the XVII Additional City Civil Court, Chenani
in A.S.No.162 of 2012. The B-Diary extract in A.S.No.162 of 2015 would
show that the matter was posted for arguments on 01.03.2016. The matter
was adjourned to 09.03.2016, since the Judge was on Casual Leave. On
09.03.2016, once again the matter was adjourned to 17.03.2016 on account
of the Judge being on Casual Leave. On 17.03.2016, though the appellant’s
counsel was present, the matter was adjourned to 30.03.2016. On
30.03.2016, the appellant was not present and it was only the respondent
who was present, therefore, the matter was adjourned to 15.04.2016. On
15.04.2016, though the respondent counsel was present once again the
counsel for the appellant was not present and the matter was listed on
10.06.2016 as a last chance and the appellant was informed that no further
adjournment would be granted. From 10.06.2016, the matter got adjourned
to 21.06.2016. On 21.06.2016, both sides were not present and the matter
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S.A.No.577 of 2017
was adjourned for appearance and for putting forth their oral/written
arguments on or before 29.07.2016. However, on 06.07.2016, judgement
was pronounced and the appeal was allowed despite the appellant being
absent.
5. Considering the provisions of Order 41 Rule 16 of the Civil
Procedure Code, the learned Judge ought to have dismissed the appeal.
However, contrary to the above provisions, the learned Judge has allowed
the appeal although both the parties and counsels have been absent. The
substantial question of law is therefore answered in favour of the
plaintiff/appellant and the Second Appeal is allowed, the matter is remitted
back to the XVII Additional City Civil Court, Chennai for fresh disposal
after hearing both parties. The above exercise shall be completed within a
period of one month from the date of receipt of a copy of the order and the
records (if the records have been dispatched to this Court). No costs.
Consequently, the connected Civil Miscellaneous Petition is closed, if any.
12.10.2022
Index : Yes/No
Internet : Yes/No
shr
https://www.mhc.tn.gov.in/judis
S.A.No.577 of 2017
To
1.The III Additional City Civil Court, Chennai.
2.The XVII Assistant City Civil Court, Chennai.
https://www.mhc.tn.gov.in/judis
S.A.No.577 of 2017
P.T. ASHA, J,
shr
S.A.No.577 of 2017
and
C.M.P.No.14388 of 2017
12.10.2022
https://www.mhc.tn.gov.in/judis
