Madras High Court
Ramiah vs Selvi.Monika on 17 April, 2023
S.A.(MD)No.37 of 2019
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 17.04.2023
CORAM:
THE HONOURABLE MR.JUSTICE ABDUL QUDDHOSE
S.A.(MD)No.37 of 2019
and
C.M.P.(MD)Nos.1585 and 1586 of 2019
1.Ramiah
2.Ramkumar ... Appellants
/Vs./
1.Selvi.Monika
2.Anantha Babu
3.Thamil Selvan ... Respondents
PRAYER: Second Appeal filed under Section 100 of the Civil Procedure
Code to set aside the judgment and decree passed in A.S.No.20 of 2015,
on the file of the Sub Court, Padmanabapuram, dated 12.12.2018
reversing the judgment and decree passed in O.S.No.170 of 2010 on the
file of the Principal District Munsif Court, Padmanabapuram, dated
21.11.2014 by allowing this Second Appeal.
1/10
https://www.mhc.tn.gov.in/judis
S.A.(MD)No.37 of 2019
For Appellants : Mr.V.Meenakshisundaram
For Respondents : Mr.S.C.Herold Singh
JUDGMENT
This second appeal was admitted by this Court on 14.03.2023 by
formulating the following substantial questions of law:
"1) When Ex.A1, dated 19.12.1997, has recitals to
the effect that the disposition is to take effect on the death
of the executant and his wife, whether the lower
appellate Court is correct in construing the document
dated 19.12.1997 as a settlement deed?
2) Whether the first appellate Court is correct in
allowing the appeal in A.S.No.20 of 2015 on merits when
the appellants herein were set ex parte before the first
appellate Court as against the Order 41 Rule 17(2) of
C.P.C.?''
2. This second appeal has been filed challenging the judgment and
decree of the lower appellate Court, namely, Sub Court,
Padmanabapuram, dated 12.12.2018 passed in A.S.No.20 of 2015. The
appellants are the defendants in the suit in O.S.No.170 of 2010 on the file
of the Principal District Munsif Court, Padmanabapuram. The suit was
https://www.mhc.tn.gov.in/judis
S.A.(MD)No.37 of 2019
filed for declaration that the cancellation of the settlement deed dated
31.12.2009 and the consequential sale deed dated 31.12.2009 are null
and void. The said suit was dismissed by the trial Court. Aggrieved by
the same, the respondents / plaintiffs filed the first appeal. The lower
appellate Court reversed the findings of the trial Court and allowed the
first appeal filed by the respondents / plaintiffs and the relief sought for
in the plaint was granted. Aggrieved by the same, this second appeal has
been filed by the defendants in the suit.
3. Even though this Court has formulated two substantial questions
of law as extracted supra, while admitting the second appeal, this Court,
after perusing the original records from the lower appellate Court notices
the following:
(a) The hand delivered summons, which is alleged to have been
served on the appellants / defendants, namely, Ramiah and Ramkumar on
03.04.2015 contains the signature of Ramiah and Ramkumar, which is
completely different from the signature found in the written statement
filed by them before the trial Court. The Court post notice sent by the
respondents / plaintiffs before the lower appellate Court to the
https://www.mhc.tn.gov.in/judis
S.A.(MD)No.37 of 2019
appellants / defendants, Ramiah and Ramkumar has however been
returned with an endorsement of 'not known', despite the fact that the
notice was sent to the very same address, as it was the address, where the
Court bailiffs are said to have served the hand delivered summons to
Ramiah and Ramkumar, the appellants / defendants.
4. Even though the learned counsel appearing for the appellants /
defendants, has raised the substantial questions of law and this Court had
also admitted the second appeal by formulating the substantial questions
of law referred to supra, this Court is not deciding the same now. But, in
view of the fact that the summons in the lower appellate Court
proceedings has not been served on the appellants / defendants, this
Court is constrained to formulate the following substantial question of
law, in lieu of earlier once formulated on 14.03.2023:-
(a) Whether the appellants / defendants were duly served in the
lower appellate proceedings in A.S.No.20 of 2015 on the file of the Sub
Court, Padmanabapuram?
https://www.mhc.tn.gov.in/judis
S.A.(MD)No.37 of 2019
5. As seen from the immaterial records produced from the lower
appellate Court, it is clear that the appellants / defendants were not
served in the lower appellate Court proceedings for the following
reasons:
(a) Even though the trial Court Advocate of the appellants /
defendants had undertaken to file vakalat on behalf of the appellants /
defendants before the lower appellate Court, he did not file the same.
(b) The appellants / defendants categorically contend that they
were not aware of the appellate Court proceedings and they did not
engage the trial Court Advocate to appear on their behalf in the lower
appellate Court proceedings;
(c) The Court postal notice sent by the lower appellate Court to the
appellants / defendants has also been returned with an endorsement 'not
known'. However, the hand delivered summons served by the Court
bailiff discloses that the appellants / defendants have received the
summons in the lower appellate Court proceedings, which contradicts the
Court postal notice issued by the lower appellate Court, which has been
returned unserved for the reason 'not known'. Admittedly, the only
https://www.mhc.tn.gov.in/judis
S.A.(MD)No.37 of 2019
address disclosed by the appellants / defendants before the trial Court is
the address, to which summons was attempted to be served by the lower
appellate Court. While that be so, there cannot be two different
endorsements, (a)where the Court postal notice has been returned
unserved with an endorsement 'not known' and (b)where the Court bailiff
has made an endorsement that the 'summons has been served on the
appellants / defendants';
(d) The signature found in the written statement of the appellants /
defendants before the trial Court and the signature found in the report
submitted by the Court bailiff, which contains the alleged signature of
the appellants / defendants are totally different to the naked eye.
Therefore, it can be presumed that the appellants / defendants never
signed the report of the Court bailiff.
6. For the foregoing reasons, for the effective adjudication of the
first appeal, namely, A.S.No.20 of 2015, the matter will have to be
remanded back to the lower appellate Court for fresh consideration on
merits and in accordance with law, as the appellants / defendants were
not served with the notice in the lower appellate Court proceedings.
https://www.mhc.tn.gov.in/judis
S.A.(MD)No.37 of 2019
7. The substantial question of law formulated by this Court today
for admitting the second appeal has been answered in favour of the
appellants / defendants by setting asiding the Judgment and decree of the
lower appellate Court dated 12.12.2018 passed in A.S.No.20 of 2015 on
the ground that the appellants / defendants have not received notice in
A.S.No.20 of 2015. Accordingly, the judgment and decree of the lower
appellate Court, namely, the Sub Court, Padmanabapuram in A.S.No.20
of 2015 dated 12.12.2018 is hereby set aside and the matter is remanded
back to the very same Court for fresh consideration on merits and in
accordance with law, after affording a fair hearing to the appellants /
defendants as well as the respondents / plaintiffs.
8. The lower appellate Court, namely, the Sub Court,
Padmanabapuram is directed to dispose of the first appeal in A.S.No.20
of 2015 within a period of four months from the date of receipt of a copy
of this Judgment. However, since the respondents / plaintiffs had earlier
succeeded before the lower appellate Court, both the parties are directed
to maintain status quo, till the first appeal in A.S.No.20 of 2015 is finally
disposed of by the lower appellate court, as directed by this Court.
https://www.mhc.tn.gov.in/judis
S.A.(MD)No.37 of 2019
9. This Second Appeal is allowed accordingly. Consequently,
connected Miscellaneous Petitions are closed.
17.04.2023
Index : Yes / No
NCC : Yes / No
Sm
https://www.mhc.tn.gov.in/judis
S.A.(MD)No.37 of 2019
TO:
1.The Sub Court, Padmanabapuram.
2.The Principal District Munsif Court, Padmanabapuram.
3.The Section Officer,
VR Section, Madurai Bench of Madras High Court,
Madurai.
https://www.mhc.tn.gov.in/judis
S.A.(MD)No.37 of 2019
ABDUL QUDDHOSE, J.
Sm
Judgment made in
S.A.(MD)No.37 of 2019
Dated:
17.04.2023
https://www.mhc.tn.gov.in/judis
