Madras High Court
M.Paramasivan vs S.Pandaram on 2 November, 2023
C.R.P(MD)No.1162 of 2016 and C.M.A.(MD)No.424 of 2016
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 02.11.2023
CORAM
THE HONOURABLE MR.JUSTICE P.B.BALAJI
C.R.P(MD)No.1162 of 2016
and
C.M.A.(MD)No.424 of 2016
and
C.M.P(MD)Nos.5710 and 5711 of 2016
C.R.P(MD)No.1162 of 2016:-
M.Paramasivan : Petitioner
.vs.
1.S.Pandaram
Shanmugavelu (Died)
2.Arulmigu Eswari Amman Kovil,
through its Nattamai, Paramasivan,
Kambaneri, Puthukudi, Tenkasi Taluk.
3.Arulmigu Sengamalam Udayar Thirukovil,
through its Nattamai, Paramasivan,
Kambaneri, Puthukudi, Tenkasi Taluk.
4.Rajalakshmi
5.Selvi
6.S.Anathakumar : Respondents
1/7
https://www.mhc.tn.gov.in/judis
C.R.P(MD)No.1162 of 2016 and C.M.A.(MD)No.424 of 2016
PRAYER: Civil Revision Petition filed under Section 115 of Code of
Civil Procedure to set aside the fair and decreetal order dated 13.04.2016
passed in I.A.No.10 of 2011 in A.S.No.41 of 2009 on the file of the
Additional Sub Court, Tenkasi and allow this Civil Revision Petition.
For Petitioner :Mr.V.Meenakshi Sundaram
For R1 :Mr.M.P.Senthil
R2 to R6 :Ex parte
C.M.A(MD)No.424 of 2016:-
M.Paramasivan : Appellant
.vs.
1.S.Pandaram
Shanmugavelu (Died)
2.Arulmigu Eswari Amman Kovil,
through its Nattamai, Paramasivan,
Kambaneri, Puthukudi, Tenkasi Taluk.
3.Arulmigu Sengamalam Udayar Thirukovil,
through its Nattamai, Paramasivan,
Kambaneri, Puthukudi, Tenkasi Taluk.
4.Rajalakshmi
5.Selvi
6.S.Anathakumar : Respondents
PRAYER: Civil Miscellaneous Appeal filed under Section 106 r/w
Order 43 Rule 1(u) of Civil Procedure Code, to set aside the remand
order in judgment and decree dated 13.04.2016 passed in A.S.No.41 of
2/7
https://www.mhc.tn.gov.in/judis
C.R.P(MD)No.1162 of 2016 and C.M.A.(MD)No.424 of 2016
2009 on the file of the Additional Sub Court, Tenkasi and allow this Civil
Miscellaneous Appeal.
For Appellant :Mr.V.Meenakshi Sundaram
For R1 :Mr.M.P.Senthil
R2 to R6 :Ex parte
*****
JUDGMENT
This Civil Revision Petition is directed against the amendment
application being ordered in the appeal proceedings. The said
amendment application was taken out by the unsuccessful plaintiff, who
is the appellant in the first appeal.
2.The Civil Miscellaneous Appeal arises out of the judgment of the
appellate Court remanding the matter back to the trial Court for fresh
adjudication. Both the Civil Revision Petition as well as the Civil
Miscellaneous Appeal have been preferred by the first defendant in the
suit/first respondent in the first appeal.
3.The main ground of contention taken by the learned Counsel for
the Revision Petitioner/appellant, Mr.V.Meenakshi Sundaram, is that the
https://www.mhc.tn.gov.in/judis
C.R.P(MD)No.1162 of 2016 and C.M.A.(MD)No.424 of 2016
appellate Court ought to have decided the amendment application
independently and thereafter, taken up the main appeal for disposal.
However, adopting an erroneous procedure, the first appellate Court has
decided the amendment application along with the main appeal and
allowed the amendment and directed the matter to be remitted back to the
trial Court for fresh consideration. Therefore, he prayed that on this
limited score alone, this Civil Revision Petition and the Civil
Miscellaneous Appeal have to be entertained and allowed.
4.Per contra, Mr.M.P.Senthil, learned Counsel for the first
respondent would state that there is no infirmity in the order of the first
appellate Court and the same does not warrant any interference from this
Court.
5.I have gone through the judgment of the first appellate Court and
also the order allowing the amendment, as sought for by the plaintiff.
Surprisingly, the appellate Court has discussed the appeal grounds and
decided to allow the appeal by remitting the matter back to the Trial
Court. Thereafter, the appellate Court has taken up the amendment
application and proceeded to allow the same. Such a procedure has
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C.R.P(MD)No.1162 of 2016 and C.M.A.(MD)No.424 of 2016
caused serious prejudice to the parties who opposed the said amendment.
More over, the amendment application not being an application for
adducing additional evidence under Order 41 Rule 27 of CPC, the said
application could not have been posted along with the main appeal and
decided along with the main appeal and the application ought to have
been taken up first and a decision rendered therein first, before hearing
the main appeal.
6.I am unable to justify the procedure adopted by the appellate
Court and on this limited ground, the matter is remitted back to the first
appellate Court and the first appellate Court shall first take up the
amendment application in I.A.No.10 of 2011 and decide the same afresh
before deciding the main appeal in A.S.No.41 of 2009 and after hearing
the parties, the first appellate Court shall take a final decision in I.A.No.
10 of 2011 within a period of six weeks from the date of receipt of a copy
of this judgment and thereafter take a final decision in the main appeal,
after hearing the parties, within a further period of three months
thereafter.
https://www.mhc.tn.gov.in/judis
C.R.P(MD)No.1162 of 2016 and C.M.A.(MD)No.424 of 2016
7.With the above observations, the Civil Revision Petition and the
Civil Miscellaneous Appeal are allowed. Since the Civil Revision
Petition and the Civil Miscellaneous Appeal have been allowed only on
the technical ground of an incorrect procedure adopted by the first
appellate Court, the first appellate Court shall not be influenced by any
of the observations made herein above and shall independently decide
the amendment application as well as the main appeal in accordance with
law. No costs. Consequently, connected miscellaneous petitions are
closed.
Index :Yes/No 02.11.2023
Internet :Yes/No
NCC :Yes/No
cmr
To
The Additional Sub Court, Tenkasi.
https://www.mhc.tn.gov.in/judis
C.R.P(MD)No.1162 of 2016 and C.M.A.(MD)No.424 of 2016
P.B.BALAJI, J.
cmr
C.R.P(MD)No.1162 of 2016 and C.M.A.(MD)No.424 of 2016
02.11.2023
https://www.mhc.tn.gov.in/judis
