Madras High Court
A.Vijayamaharajan vs Kalai on 7 September, 2022
CMA.No.1504 of 2022
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 07.09.2022
CORAM
THE HONOURABLE MS. JUSTICE P.T.ASHA
CMA.No.1504 of 2022
and
C.M.P.No.11114 of 2022
A.Vijayamaharajan
... Appellant/ 1st Respondent/Plaintiff
Vs.
1.Kalai
... Respondent / Appellant/3rd party
2.Senior Area Manager,
Indian Oil Corporation Ltd,
No.B-35, Tiruveni, 2nd Floor,
Sasthri Road, Thillai Nagar
Tiruchirapaly
... Respondent / 2nd Respondent/Defendant
PRAYER: Appeal filed under Order XLIII Rule 1(u) of the CPC, to the
judgment and decree in AS 25/2019 dated 15.03.2022 on the file of the Sub
Court Nagapattinam reversing the judgment and decree dated 21.09.2016 in
OS 123/2016 on the file of District Munsif Court Nagapattinam remanding
the matter to the trial court is even otherwise illegal incompetent and
without jurisdiction and is liable to be set aside.
1/7
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CMA.No.1504 of 2022
For Petitioner : Mr.V.Raghavachari
For Respondent : Mr.R.Suresh Kumar for M/s.K.M.Vijayan
Associates, Caveator Counsel Krishana [R.1]
JUDGEMENT
This Civil Miscellaneous Appeal is filed challenging the Judgement
and Decree passed in A.S.No.25 of 2019 on the file of the Sub Court,
Nagapattinam in an by which the learned Sub Judge has allowed an appeal
filed by a third party and remitted the matter back to the District Munsif
Court, Nagapattinam. The facts in brief are as follows:-
2. The appellant herein who is the plaintiff in the above suit had
initially instituted the suit O.S.No.117 of 2016 on the file of the District
Munsif, Nagapattinam against the District Collector and three others
seeking the relief to nullify the order passed by the District Collector on
06.07.2016 in R.O.C.NO.915/2016/I-1.
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CMA.No.1504 of 2022
3. The said suit was instituted on 11.07.2016 and is pending. In the
said suit the 2nd respondent herein namely the Senior Area Manager Indian
Oil Corporation is not a party. The 2nd respondent attempted to create a
hindrance to the running of the agency at the behest of the 1st respondent
which necessitated the filing of the suit OS.No.123 of 2016 by the appellant
herein on the file of the District Munsif, Nagapattinam, seeking an
injunction restraining the 2nd respondent herein from taking steps to cancel
the appointment order dated 30.12.2015 issued to the plaintiff. The case of
the appellant is that in the subsequent suit the pendency of the earlier suit
OS.No.117 of 2016 has been set out. Ultimately, the suit OS.No.123 of
2016 was decreed on 21.09.2016.
4. The 2nd respondent has not challenged the said judgement and
decree, however, the 1st respondent who is a third party has filed the appeal
A,S.No.25 of 2019 on the file of the Sub Court, Nagapattinam which was
allowed on 15.03.2022. It is challenging this Judgement and Decree that the
appellant is before this Court.
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CMA.No.1504 of 2022
5. When the matter had come up for admission, the Court had heard
both the counsel for the appellant as well as the counsel for the caveator.
The main grievance of the appellant is that the 1st respondent has not
obtained the leave of the Court for filing the appeal and without such a
leave the 1st respondent has been permitted to participate in the proceedings
and the appeal has been allowed remanding the matter back to the Trial
Court for fresh consideration after impleading the 1st respondent herein.
6. This Court had directed the 1st respondent to produce the order
under which leave has been granted to the 1st respondent to file the First
Appeal. The learned counsel had today produced the copy of the affidavit
and the order dated 17.11.2017 in I.A.No.80 of 2017 in UF AS No. blank.
The affidavit and petition is filed under the provisions of Order 1 Rule
10(2) read with Section 151 of the Code of Civil Procedure to implead the
1st respondent as a party to the appeal. A perusal of the order dated
17.11.2017 would show that although the petition in question was one to
condone the delay in filing the appeal. However while passing orders the
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CMA.No.1504 of 2022
learned Sub Judge observed that where a judgement affects the person who
is not a party to the proceedings such person can file an appeal challenging
the said order. However the operative portion of the order translated from
the vernacular would read that finally the petition is taken on file and notice
is ordered to the respondents. Thereafter, it appears that the appeal was
numbered and the impugned order came to be passed.
7. Considering the fact that the appeal has been taken on file without
passing orders in the leave petition, which has not even been numbered, the
Judgement and Decree of the learned Sub Judge, Nagapattinam has to
definitely be set aside and is accordingly set aside with a direction to the
Appellate Court to first number the application filed for seeking leave to
appeal and pass orders thereon after hearing both sides. This exercise shall
be completed within a period of two months from the date of receipt of a
copy of the Judgement. No costs. Consequently, the connected
Miscellaneous Petition is closed.
07.09.2022
Index : Yes/No
Internet: Yes/No
shr
https://www.mhc.tn.gov.in/judis
CMA.No.1504 of 2022
To
1. The Sub Court, Nagapattinam
2. District Munsif Court, Nagapattinam
2.The Section Officer,
V.R.Section,
High Court, Madras.
https://www.mhc.tn.gov.in/judis
CMA.No.1504 of 2022
P.T. ASHA, J,
shr
CMA.No.1504 of 2022
and
C.M.P.No.11114 of 2022
07.09.2022
https://www.mhc.tn.gov.in/judis
