Madras High Court
Kuppusamy vs Kuppana Gounder (Died) on 4 December, 2023
Author: S.Srimathy
Bench: S.Srimathy
S.A(MD)No.24 of 2018
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 04.12.2023
CORAM
THE HONOURABLE MRS.JUSTICE S.SRIMATHY
S.A(MD)No. 24 of 2018
Kuppusamy ... Appellant
Vs.
Kuppana Gounder (died)
1. Sivasami alias Chinnasamy
2. Chinnathai @ Palaniammal
3. Ramathai ... Respondents
PRAYER: Second Appeal filed under Section 100 of the Civil Procedure Code
against the Decree and Judgment, dated 05.08.2016 passed in A.S.No.23 of 2012
on the file of the Subordinate Judge, Palani, setting aside the Judgment and
Decree dated 19.03.2012 passed in O.S.No.284 of 2009 on the file of the District
Munsif Court, Palani.
For Appellant : M/s.R.Janakiramulu
For Respondents : Mr.S.Anand Chandrasekar, for
M/s.Sarvabhavan Associates, for R-1 & R-2
Mr.VR.Shanmuganathan, for R-3
1/6
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S.A(MD)No.24 of 2018
ORDER
This Second Appeal is filed against the Decree and Judgment, dated
05.08.2016 passed in A.S.No.23 of 2012 on the file of the Subordinate Court,
Palani, setting aside the Judgment and Decree, dated 19.03.2012 passed in
O.S.No.284 of 2009 on the file of the District Munsif Court, Palani.
2. The 1st Plaintiff is the Appellant. The Defendants and the 2nd
plaintiff are Respondents herein. For the sake of convenience, the rank of the
parties shall be referred as plaintiffs and defendants as stated in suit.
3. The plaintiffs have filed a suit in O.S.No.284 of 2009 on the file
of the Additional District Munsif Court, Nanguneri, for partition, claiming 1/3
share in the suit schedule parties and the same was allowed in favour of the
plaintiffs. Against the same, the Defendants have preferred an appeal in A.S.No.
23 of 2012 and the same was allowed. Aggrieved over the same, the 1st plaintiff
has preferred this Second Appeal.
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4. Heard M/s.R.Janakiramulu, the Learned Counsel appearing for the
Appellants, Mr.S.Anand Chandrasekar for M/s.Sarvabhavan Associates, the
Learned Counsel appearing for the respondents 1 & 2, Mr.VR.Shanmuganathan,
the Learned Counsel appearing for the 3rd respondent and perused the material
documents available on record.
5. The defendants 1 & 2 have preferred an appeal before the First
Appellate Court. The first appeal was allowed on the ground of non-joinder of
necessary parties since the daughter of the Kuppana Gounder was not included as
one of the parties in the suit. But during the pendency first appeal, the said
Kuppana Gounder died and his legal heirs were impleaded as party. While
impleading the legal heirs the said left-out daughter was also impleaded as one of
the parties. In such circumstances, the first appellate court has erred in
entertaining the plea of non-joinder of necessary parties. Therefore, the Judgment
and Decree passed by the First Appellate Court cannot be sustained, accordingly
it is set aside and the Second Appeal is allowed. The case is remitted to Trial
Court. The parties are at liberty to raise all pleas, to file additional pleadings and
to produce additional documents.
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6. With these directions and observations, the Second Appeal is
Allowed. The Judgment and Decree, dated 05.08.2016 passed in A.S.No.23 of
2012 on the file of the Subordinate Court, Palani and the Judgment and Decree,
dated 19.03.2012 passed in O.S.No.284 of 2009 on the file of the District Munsif
Court, Palani are is set aside. No Costs.
Index : Yes / No 04.12.2023
Internet : Yes
KSA
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To
1. The Subordinate Court,
Palani.
2. The District Munsif Court,
Palani.
3. The Section Officer,
VR Section,
Madurai Bench of Madras High Court,
Madurai.
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S.SRIMATHY, J
KSA
Judgment made in
04.12.2023
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