Madras High Court
T.Balasubramaniam vs Nachammal on 5 March, 2024
Author: G.Ilangovan
Bench: G.Ilangovan
C.R.P.(MD)Nos.1709 and 1786 of 2022
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
Dated: 05/03/2024
CORAM
The Hon'ble Mr.Justice G.ILANGOVAN
C.R.P(MD)Nos.1709 and 1786 of 2022
CMP(MD)No.7516 of 2024
(1)CRP(MD)No.1709 of 2022:-
1.T.Balasubramaniam
2.T.Veluchamy
T.Periyasamy (Died)
3.T.Palanisamy
5.S.Kanthasamy
6.S.Murugasamy : Petitioners/Petitioners/
Petitioners/Defendants
Vs.
1.Nachammal
2.Selvi : Respondents/Respondents/
Respondents/Plaintiffs
PRAYER:-Civil Revision Petition has been filed under
section 115 of the Civil Procedure Code, to call for the
records and set aside the fair and executable order dated
15/06/2022 passed in the application in IA No.52 of 2020
in IA No.246 of 2013 in OS No.197 of 2007 on the file of
the Principal Subordinate Court, Palani and pass such
other further orders.
For Petitioners : Mr.J.Barathan
For Respondents : Mr.N.Tamil Mani
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C.R.P.(MD)Nos.1709 and 1786 of 2022
2.CRP(MD)No.1786 of 2022:-
1.T.Balasubramaniam
2.T.Veluchamy
T.Periyasamy (Died)
3.T.Chinnasamy
4.T.Palanisamy
5.S.Kanthasamy
6.S.Murugasamy : Petitioners/Petitioners/
Petitioners/Defendants
Vs.
1.Nachammal
2.Selvi : Respondents/Respondents/
Respondents/Plaintiffs
PRAYER:-Civil Revision Petition has been filed under
section 115 of the Civil Procedure Code, to call for the
records and set aside the order, dated 15/06/2022 passed
in the application in IA No.111 of 2019 in IA No.247 of
2013 in OS No.197 of 2007 on the file of the Principal
Subordinate Judge, Palani and pass such further or other
orders.
For Petitioners : Mr.J.Barathan
For Respondents : Mr.N.Tamil Mani
COMMON ORDER
CRP(MD)No.1709 of 2022 is filed seeking to set aside
the fair and executable order, dated 15/06/2022 passed in
IA No.52 of 2020 in IA No.246 of 2013 in OS No.197 of
2007 by the Principal Sub Judge, Palani, whereas
CRP(MD)No.1786 of 2022 has been filed seeking to aside
aside the order, dated 15/06/2022 passed in IA No.111 of
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C.R.P.(MD)Nos.1709 and 1786 of 2022
2019 in IA No.247 of 2013 in OS No.197 of 2007 by the
Principal Sub Judge, Palani.
2.The facts in brief:-
A suit in OS No.197 of 2007 was filed by the
respondents herein namely Nachammal and Selvi seeking the
relief of partition and separate possession of their 1/3rd
share. The defendants appeared, filed their written
statement. After that, an ex-parte decree was passed, on
10/08/2011. The defendants remained ex-parte, even
though, the suit was posted for the cross examination of
PW1. After that, IA No.247 of 2013 was filed by the
petitioners to set aside the ex-parte decree and judgment
along with the application in IA No.246 of 2013 to
condone the delay of 90 days. That Interlocutory
application was filed under section 5 of the Limitation
Act.
3.Pending further process of the above said
Interlocutory applications, one Periyasamy expired. The
legal heirs were not brought on record within the time
stipulated, both the applications were dismissed for
default, on 06/12/2018.
4.Later, IA No.52 of 2020 in IA No.246 of 2013 and
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C.R.P.(MD)Nos.1709 and 1786 of 2022
IA No.111 of 2019 in IA No.247 of 2013 were filed to
condone the delay of 38 days in restoration. Those
applications came to be dismissed by the trial court.
5.Against which, these two civil revision petitions
are preferred.
6.Heard both sides.
7.The suit is of the year 2007. According to the
learned counsel appearing for the petitioners, the
earlier suit for partition was filed in OS No.234 of 1970
by the respondents before the District Munsif Court,
Palani. In that suit, Chokkalingam was impleaded as the
second defendant. Chokkalingam disputed the relationship
stating that the plaintiffs were not the wife and
daughter. That suit was dismissed for default, on
25/07/1972. Thereafter, no process was taken by the
plaintiffs. So that need not be taken into account in
these petitions. That sort of argument ought to have been
raised before the trial court at the time of passing the
preliminary decree.
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C.R.P.(MD)Nos.1709 and 1786 of 2022
8.Since, the suit was posted for cross examination
of PW1, the petitioners remained set ex-parte, As
mentioned above, ex-parte decree and judgment was passed.
9.Now the problem lies in dismissing IA Noss.246 and
247 of 2013 on the ground that the legal heirs of the
deceased Periyasamy were not brought on record. Both
petitions were dismissed for default. If the legal heirs
of the Periyasamy were not brought on record, the
petitions ought to have been dismissed as abated only
against the Periyasamy. Dismissing the petitions in
entirety for default is not proper.
10.Now another problem arises in dismissing IA
Nos.111 of 2019 and 52 of 2020.
11.Now we will see the reasoning of the order
assigned by the trial court. The trial court was of the
view that even in these petitions, the legal heirs of the
Periyasamy were not impleaded. The trial court would have
dismissed the petition filed by the deceased Periyasamy.
In respect of others, it ought to have decided the matter
on its own merit. But again, the trial court came to the
conclusion that those two petitions are not maintainable.
This is not proper.
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C.R.P.(MD)Nos.1709 and 1786 of 2022
12.The order passed by the trial court suffers from
not only illegality, but also irregularity. Even without
impleading the legal heirs of Periyasamy, again two
petitions came to be filed by the petitioners. So
according to the petitioners, it is improper. But when
that was brought to the notice of the trial court, the
petitions filed without impleading the legal heirs of
Periyasamy, either ought to have been directed the
petitioners to file the legal heirs application for the
deceased Periyasamy or would have dismissed the petitions
as abated. But again the trial court committed the very
same mistake, which is not proper.
13.Now the legal heirs of the Periyasamy have been
impleaded in these revisions. So, this is a curable
defect already committed by the petitioners. The only
course available is that the trial court may direct the
petitioners to file amendment petition. After the said
process is over, the matter must be decided on its own
merits within a period of one month considering the
oldness of the matter.
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C.R.P.(MD)Nos.1709 and 1786 of 2022
14.With the above said observation and direction,
both the civil revisions are disposed of. No costs.
Consequently, connected Miscellaneous Petition is closed.
05/03/2024
Index:Yes/No
Internet:Yes/No
er
To,
1.The Principal Sub Court,
Palani.
2.The Section Officer,
ER/VR Section,
Madurai Bench of Madras High Court,
Madurai.
https://www.mhc.tn.gov.in/judis
C.R.P.(MD)Nos.1709 and 1786 of 2022
G.ILANGOVAN, J
er
C.R.P(MD)Nos.1709 and 1786 of 2022
05/03/2024
https://www.mhc.tn.gov.in/judis
