Madras High Court
Sekar vs Hariprasad on 1 December, 2023
Author: P.T. Asha
Bench: P.T. Asha
S.A.No.858 of 2023
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 01.12.2023
CORAM
THE HONOURABLE Ms. JUSTICE P.T. ASHA
S.A.No.858 of 2023
and
C.M.P.No.27161 of 2023
Sekar ... Appellant
Vs.
1. Hariprasad
2. Saritha
3. R.Palanisamy
4. P.Malligarjuna Chetty
5. Kumaran ... Respondents
PRAYER: Second Appeal filed under Section 100 of C.P.C. to set
aside the judgment and decree dated 03.05.2017 in A.S.No.12 of 2013
on the file of the District Court, Thiruvannamalai, reversing the
judgment and decree dated 18.01.2013 in O.S.No.163 of 2010, on the
file of the Additional Sub Court, Thiruvannamalai.
For appellant : Mr.P.Dinesh Kumar
For respondents
For R1-R2 : Mr.S.Kaithamalai Kumaran
For R3-R5 : No appearance
1/7
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S.A.No.858 of 2023
JUDGMENT
This judgment and decree is being passed with the consent of
both the parties. Therefore, this Court is not traversing with the details
of the suit and merits of the case. However, for the sake of completion
of the narration, the following facts are set out hereinbelow.
FACTS OF THE CASE:
2. The respondents herein had filed a suit in O.S.No.163 of
2010 on the file of the Additional Sub Court, Thiruvannamalai,
seeking declaration, partition and delivery of possession in respect of
the suit schedule properties.
3. The appellant before this Court is the third defendant in
the aforesaid suit. The appellant would submit that he has contested
the above suit by filing his written statement. The appellant herein has
also adduced evidence as D.W.1 and marked Exs.B1 to B4. After
contest, the suit was dismissed without costs by judgment and decree
dated 18.01.2013.
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4. Aggrieved by this judgment and decree, the plaintiffs have
filed an appeal in A.S.No.12 of 2013 on the file of the District Court,
Thiruvannamalai.
5. It is the contention of the appellant that he had engaged an
advocate to prosecute the appeal and vakalat was also filed in the
appeal. However, it appears that the counsel had not participated in
the proceedings and without contest, an ex parte decree was passed
and the appeal was allowed. The lower Appellate Court had reversed
the judgment and decree in O.S.No.163 of 2010, by judgment and
decree dated 03.05.2017.
6. The judgment and decree has been pronounced when the
Court was on vacation. As soon as the appellant had come to know
about the judgment, he has filed an application in I.A.No.41 of 2017,
for re-hearing the appeal since it was an ex parte decree that was
passed. Since the decree was passed during vacation, there was a
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delay of 10 days in filing the application to re-hear the appeal.
7. The said application in I.A.No.41 of 2017 was dismissed
on 03.08.2017, against which, the appellant has preferred
C.R.P.No.4020 of 2017 on the file of this Court. Though this Court
had admitted the revision petition, ultimately, by an order dated
11.01.2023, the said Civil Revision Petition was dismissed. Since
there was some adverse finding in the order passed in C.R.P.No.4020
of 2017, the appellant had filed a review petition in Rev Sr.No.35470
of 2023 and the same is yet to be numbered. In the light of the
dismissal of C.R.P., the appellant has filed this appeal.
8. Heard the learned counsels appearing for both sides.
9. Considering the limited ground in the appeal this Court is
not traversing the merits of this case. It is rather unfortunate that the
lower Appellate Court has deemed it fit to dismiss the application for
condonation of delay of 10 days in filing the appeal, particularly, when
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the judgment and decree has been pronounced during the summer
recess. The lower Appellate Court has passed a rather cryptic order
after observing that the matter has been adjourned for the arguments
of the second respondent which reads as follows:
“2k; vjph;nky;KiwaPLjhuh; miHj;Jk; M$h; ,y;iy/
,e;epiyapy; 4 Mz;Lfshf epYitapy; ,k;nky;KiwaPl;il
nkYk; xj;jp itg;gij fhl;oYk; mike;Js;s jFjpfspd; fPH;
,jid ghprPypj;J cj;jutpLtnj ePjpapd;ghy;gl;lJ vd;W
jPh;khdpj;J mt;thnw tHf;F nfhg;ig ed;F ghprPypf;ifapy;
rhl;rpfis. rhd;whtz';fis Muha;ifapy; 08/01/2007
ehspll; fpiua Mtzj;jpy; nky;KiwaPLjhuh;fs;
jug;gpdh;fns my;y vd;gJk;. 21/05/2008 ehspl;l fpiua
Mtzj;jpYk; nky;KiwaPLjhuh;fs; jug;gpdh;fs; my;y
vd;gJk;. Mit nky;KiwaPLjhuh;fis fl;Lg;gLj;Jgtd
my;y vd;gJk; thjplg;gl;Ls;sJ/ guk;giu Tl;L FLk;g
brhj;J Fwpj;Jk; ,e;J thhpRhpik rl;l gphpt[ 6?id
vLj;Jiuj;Jk; Tl;L chpikahsh;fspd; brhj;Jhpik Fwpj;Jk;
vLj;Jiuf;fg;gl;Ls;sJ/ Tl;L Flk;g brhj;Jf;fspd;
jd;ikiaa[k; gpJuhh;$pj Tl;L FLk;g brhj;Jf;fs; Fwpj;J
thjplg;gl;Ls;sJ/ midj;ija[k; ed;F ghprPypf;ifapy;
thjpfshy; jhf;fy; bra;ag;gl;ls;s ,k;nky;KiwaPL
mDkjpf;fjf;fnj bd;W ,e;ePjpkd;wk; Kot[ bra;J.
08/01/2007 njjpapl;l fpiua Mtzk; thjpfis fl;LgLj;jhJ
vd;Wk;. mJ bry;yj;jf;fjy;y vd;Wk;. ThjpfSf;F
tHf;Fiur; brhj;jpy; jyh 1-3 ghfk; chpika[ss ; J vd;Wk;
jPhk; hdpf;fg;gLfpwJ/”
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10. The lower Appellate Court has neither described as to how
the finding of the Trial Court is bad nor given the reasons in the
judgment as to how the lower Appellate Court is of the opinion that
the appeal has to be allowed, except stating that the learned counsel
has been heard and the records have been perused.
11. Therefore, by consent of both the parties, this second
appeal is allowed and the matter is remitted back to the lower
Appellate Court for fresh consideration of the appeal, after hearing all
parties within a period of three months from the date of receipt of a
copy of this order. Connected C.M.P. stands closed. No costs. The
Registry is directed to send back the records to the lower Appellate
Court at the earliest.
01.12.2023
Index : Yes/No
Speaking order/non-speaking order
ssa
To
1. The District Judge, Thiruvannamalai.
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2.The Additional Sub Judge, Thiruvannamalai.
3.The Section Officer,
V.R.Section, High Court, Madras.
P.T.ASHA, J.,
ssa
01.12.2023
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