Nalayini vs Selvi
2024 Latest Caselaw 8303 Mad

Madras High Court

Nalayini vs Selvi on 3 June, 2024

Author: N.Anand Venkatesh

Bench: N.Anand Venkatesh

                                                                     CMA.SR.No.120318 of 2022



                                     In the High Court of Judicature at Madras

                                                Dated : 03.6.2024

                                                     Coram :

                                  The Honourable Mr.Justice N.ANAND VENKATESH

                                           CMA.SR.No.120318 of 2022
                                          & CMP.SR.No.120319 of 2022
                                             & CMP.No.6117 of 2023

                1.Nalayini
                2.Mahalakshmi                                              ...Petitioners-
                                                                           Appellants/
                                                                           R1 & R2 in IA/
                                                                           Plaintiffs
                                                        Vs
                1.Selvi
                2.Shanthi
                3.Lakshmi
                4.Balasubramaniyam                                         ...R1 to R4 in
                                                                           CMPs & CMA/
                                                                           applicants in IA/
                                                                           Defendants 1 to
                                                                           3&7

                5.Malliga
                6.Manimegalai
                7.Balavinayagam                                            ...R5 to R7 in
                                                                           CMPs & CMA/
                                                                           R3 to R5 in IA
                                                                           Defendants 4 to
                                                                           6


                          APPEAL under Section 104 read with Order XLIII Rule 1 of the

                Civil Procedure Code praying to set aside the fair and decretal order

                dated 09.6.2022 passed in I.A.No.1 of 2019 in O.S.No.98 of 2017 on

                the file of the First Additional District & Sessions Court, Vellore.

https://www.mhc.tn.gov.in/judis
                1/4
                                                                    CMA.SR.No.120318 of 2022



                          CMP.No.6117 of 2023 filed under Section 5 of the Limitation Act

                praying to condone the delay of 37 days in filing the above appeal.



                                  For Petitioners/
                                  Appellants         :   Mr.D.Thirumoorthy
                                  For R1 to R3       :   Mr.D.Rameshkumar
                                  R4                 :   deceased
                                  R5 to R7           :   served & no appearance


                                                     JUDGMENT

CMP.No.6117 of 2023 has been filed seeking to condone the

delay of 37 days in filing the appeal.

2. The petitioners herein are the plaintiffs, who filed O.S.No.98

of 2017 on the file of the First Additional District & Sessions Court,

Vellore seeking for the relief of partition. In that, defendants 1 to 3

and 7 filed I.A.No.1 of 2019 under Order VII Rule 11 of the Civil

Procedure Code (for short, the Code) for rejection of plaint. This

application was allowed by the Court below by order dated 09.6.2022.

Aggrieved by that, the above appeal has been filed with a delay.

3. Heard the learned counsel for the petitioners/appellants and

the learned counsel appearing for respondents 1 to 3.

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

4. In the considered view of this Court, an order passed rejecting

the plaint is construed as a decree under Section 2(2) of the Code and

only a regular appeal is maintainable under Section 96 read with Order

XLI of the Code. The order rejecting the plaint will not come within the

scope of Order XLIII of the Code and therefore, the above civil

miscellaneous appeal is not maintainable.

5. In the light of the above, the very maintainability of the above

civil miscellaneous appeal is under question and hence, there is no

need to go into the grounds raised in the affidavit filed in support of

the petition for condonation of delay and it must automatically go.

6. In the result, CMP.No.6117 of 2023 is closed by granting

liberty to the petitioners/appellants to file a regular appeal suit against

the order passed rejecting the plaint before the competent court.

Accordingly, the above civil miscellaneous appeal is rejected at SR

stage. Consequently, the connected CMP SR is also rejected. No costs.

03.6.2024

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

N.ANAND VENKATESH,J

RS To The First Additional District & Sessions Court, Vellore.

CMA.SR.No.120318 of 2022 &

03.6.2024

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