Madras High Court
Vasantha vs / on 5 December, 2023
Author: S.Srimathy
Bench: S.Srimathy
S.A.(MD).No.514 of 2017
THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 05.12.2023
CORAM:
THE HONOURABLE MRS.JUSTICE S.SRIMATHY
S.A.(MD).No.514 of 2017
and
C.M.P.(MD)No.11025 of 2017
1.Vasantha
2.Ramuthai
3.Mokkaiammal
4.Poochammal ... Appellants
/Vs./
1.Ayyambidari
2.Thangakodi
3.Thangapandi
4.Pandiaraj
5.Bommayan
6.Ramesh
7.Veluchamy ...Respondents
PRAYER: Second Appeal filed under Section 100 of the Civil Procedure
Code against the Judgment and Decree, dated 18.08.2017, made in
A.S.No.3 of 2015 on the file of the Additional District and Sessions
Judge, Theni, at Periyakulam, reversing the Judgment and Decree, dated
09.09.2014, made in O.S.No.4 of 2010 on the file of Subordinate Judge,
Theni.
1/6
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S.A.(MD).No.514 of 2017
For Appellants : Mr.R.Suriyanarayanan
For R1 to 4 : Mr.M.Thirunavukkarasu
for Mr.R.Karunanidhi
For R5 to 7 : No appearance
*****
JUDGMENT
The plaintiffs are the appellants herein. The plaintiffs have filed a
suit for partition declaring that the plaintiffs are entitled to 1/5th share and
to divide the properties in metes and bounds. The suit was decreed as
prayed for. Aggrieved over the same, the defendants preferred an appeal
before the Appellate Court in A.S.No.3 of 2015. Pending appeal, the
defendants preferred I.A.No.86 of 2017 to file additional documents.
According to the defendants, the said documents are essential to decide
the issues between the parties but the said I.A. was dismissed.
Subsequently, the first appeal was allowed. Aggrieved over the same, the
present second appeal is preferred by the plaintiffs.
2. The respondents herein submitted that the plaintiffs / appellants
have not preferred any Civil Revision Petition separately before this
Court, when the I.A., was dismissed. The learned Counsel appearing for
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the appellants relied on the judgment of this Court in C.R.P.(NPD)No.
3493 of 2016 wherein it is stated that the correctness of dismissal of I.A.
can be canvassed in second appeal under Section 105 of CPC and
separate Civil Revision Petition is not necessary. He also relied on
another judgment rendered in the case of Thailammal and others Vs.
Janardhab Raju and others reported in 1995 Supp (4) Supreme Court
Cases 455 wherein it is held as under:
“10. So far as the contention of the learned counsel for the
plaintiffs is concerned, we are of the opinion that according to
Section 9 it is open to a defendant to file an application
thereunder in the suit for ejectment filed by the landlord against
him. Such an application would be in the nature of an
interlocutory application in the suit. In such a situation, it follows
that once an appeal is filed by the defendant against the decree of
the trial court, he is entitled to challenge the correctness of any
interlocutory order passed in the suit, in such appeal, by virtue of
Section 105 of the Civil Procedure Code. It is not necessary in
such a case that he should prefer an independent appeal against
the order dismissing an interlocutory application, even if it is
appealable. This principle is of equal application herein even
though the interlocutory application is one under Section 9 of the
Act. Accordingly, it must be held that in the appeal/second appeal
against the decree of the trial court, it was open to the defendants
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to challenge the correctness of the order dismissing their
application under Section 9. The High Court was, therefore, not
right in holding that the said application having been dismissed
by trial court and no fresh application having been filed, it must
be held that there was no application under Section 9. The
application filed by the defendants in the trial court must be
deemed to be pending during the pendency of the appeal/second
appeal. Of course, what is its effect in law is a matter to be
considered by the High Court hereinafter.”
3. Therefore, relying on these two judgments, this Court is of the
considered opinion that it is not necessary to challenge the dismissal of
I.A., separately by filing a separate Civil Revision Petition. Moreover,
this Court is of the considered opinion that the said documents are
essential to decide the issues raised by the parties. Therefore, the proper
remedy would be to remand back the matter to the Trial Court itself to
decide the issue. The Trial Court is directed to mark the documents as
per law and thereafter, decide the issue. The Judgment and Decree are
set aside. The parties are at liberty to file additional pleading and
additional documents before the Trial Court, if need be. The Trial Court
shall conduct denova trial. The Trial Court is directed to complete the
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suit within a period of nine months from the date of receipt of a copy of
this judgment.
4. With the above said observations, the second appeal is allowed.
No costs. Consequently, connected miscellaneous petition is closed.
05.12.2023
Index : Yes / No
NCC : Yes / No
Tmg
TO:
1. Additional District and Sessions Judge,
Theni, at Periyakulam.
2. Subordinate Judge, Theni.
3.The Section Officer,
VR Section,
Madurai Bench of Madras High Court,
Madurai.
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S.SRIMATHY, J.
Tmg
Judgment made in
Dated:
05.12.2023
https://www.mhc.tn.gov.in/judis
