Suriyakala vs M.Atchiammal
2023 Latest Caselaw 13371 Mad

                                                                                    C.M.A. No.1327 of 2019


                                  IN THE HIGH COURT OF JUDICATURE AT MADRAS

                                                DATED : 29.09.2023

                                                          Coram:

                                  THE HONOURABLE MR. JUSTICE P.VELMURUGAN

                                                 C.M.A. No.1327 of 2019
                  Suriyakala                                                     ... Appellant
                                                             Vs.
                   1. M.Atchiammal
                   2. K.M. Rajendiran
                   3. K.M. Kannan
                   4. K.Lavanya
                   5. K.Aswinkumar
                   6. K.M.Chinnadurai                                                ... Respondents

                   Prayer: This Civil Miscellaneous Appeal is filed under Order 43 Rule 1 (c) of
                   Civil Procedure Code, to set aside the fair and decretal order dated
                   28.02.2018 made in I.A.No.410 of 2017 in O.S. No.197 of 2016 on the file of
                   the Second Additional District and Sessions Court, Erode.
                                For Appellant      : Mr. N.Manokaran
                                    For Respondents : No Appearance
                                                     JUDGMENT

The above Civil Miscellaneous Appeal is filed to set aside the fair and

decretal order dated 28.02.2018 made in I.A.No.410 of 2017 in O.S. No.197

of 2016 on the file of the Second Additional District and Sessions Court,

Erode.

2. The appellant is the plaintiff in in O.S. No.197 of 2016 on the file of

https://www.mhc.tn.gov.in/judis C.M.A. No.1327 of 2019

the Second Additional District and Sessions Court, Erode. After filing of the

suit, the suit was posted on 24.08.2017 for service of summons on the 5th

defendant/5th respondent. But, the process for issuance of summons on the

5th defendant/5th respondent was not paid and since there was no

representation for the petitioner and the petitioner was also not present, the

suit was dismissed on the same day for default. Therefore, the plaintiff had

filed an application in I.A.No.410 of 2017 in O.S. No.197 of 2016 on the file

of the Second Additional District and Sessions Court, Erode, under Order 9

Rule 9 and Section 151 of CPC. to set aside the above order passed by the

trial Court dated 24.08.2017 and to restore the suit. The Second Additional

District and Sessions Judge, dismissed the same by the impugned order dated

28.02.2018, on the ground that the reasons stated in the accompanying

affidavit, are not satisfactory. Challenging the same, the plaintiff has filed the

present appeal before this Court.

3. There was no representation for the respondents herein.

4. Heard the learned counsel for the appellant/plaintiff and perused the

materials available on record.

5. The learned counsel for the appellant/plaintiff by pointing out

the affidavit filed before the trial Court and also the impugned order

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passed by the trial Court stated that due to misplacement of the bundle, the

counsel for the appellant/plaintiff could not appear before the trial Court.

6. Since the reasons adduced in the affidavit filed in support of the said

I.A. and also on the submissions made by the learned counsel, are not

satisfactory, the trial Court dismissed the said I.A. since the

appellant/plaintiff has not approached the Court with acceptable reasons.

However, learned counsel for the appellant stated that only on the fault of the

counsel, the parties should not suffer.

7. However, it is the duty of the party to follow up the case and to give

suitable instructions to the counsel. However, in order to give an opportunity

to the appellant/plaintiff, the appeal is allowed on payment of costs of

Rs.25,000/- (Rupees twenty five thousand only) to the Honourable Chief

Justice Relief Fund.

8. The abovesaid payment of costs of Rs.25,000/- shall be paid on or

before 09.10.2023, failing which the appeal shall stand dismissed

automatically without any further reference. In case amount is deposited, the

trial Court is directed to take effective steps to dispose of the suit within a

period of six months from the date of receipt of a copy of this order, since the

suit for partition is pending from the year 2016. The learned counsel for the

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appellant/plaintiff is directed to take steps for service of notice to the 5th

defendant/5th respondent in accordance with law.

9. List the appeal on 10.10.2023 in the caption "for reporting

compliance".

                                                                                      29.09.2023

                  ksa-2
                  Issue order copy on 03.10.2023


                  Index        : Yes / No
                  Speaking Order : Yes / No
                  Neutral Citation Case : Yes/No


                   To

1.The Second Additional District and Sessions Court, Erode.

2.The Section Officer, VR Section, High Court, Madras.

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P.VELMURUGAN. J.

ksa-2

C.M.A. No.1327 of 2019

29.09.2023

https://www.mhc.tn.gov.in/judis