S.Ranganathan vs /
2024 Latest Caselaw 18506 Mad

Madras High Court

S.Ranganathan vs / on 19 September, 2024

    2024:MHC:3456

                                                                             CRP.No.2952 of 2024

                                  IN THE HIGH COURT OF JUDICATURE AT MADRAS

                                                DATED :19.09.2024

                                                       CORAM

                                  THE HONOURABLE MS. JUSTICE R.N.MANJULA

                                               CRP.No.2952 of 2024
                                                      and
                                              CMP.No.15795 of 2024

               S.Ranganathan                           ...                          Petitioner

                                                        /vs/

               The Deputy Registrar of Cooperative
               Societies (Housing),
               No.18, Varadanar Street,
               Vedachala Nagar,
               Chengalpattu.                       ...                            Respondent


               Prayer: Civil Revision Petition has been filed under Article 227 of the
               Constitution of India to set aside the judgement and decree passed in Co-operative
               Civil Miscellaneous Appeal No.13/2009 dated 03.11.2023 on the file of the
               Principal District Judge, Kancheepuram District at Chengalpattu and pass such
               further or other orders as this Court may deem fit and proper in the facts and
               circumstances of the case.


                                      For Petitioner   : Mr.P.K.Ganesh
                                      For Respondent   : Mr.C.Sathish, Government Advocate



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                                                                                 CRP.No.2952 of 2024


                                                       ORDER

Heard Mr.P.K.Ganesh, learned counsel for the petitioner and

Mr.C.Sathish, learned Government Advocate for the respondent.

2. The petitioner has filed this Civil Revision Petition by challenging the

common order passed by the learned Principal District Judge, Kancheepuram

District at Chengalpattu dated 03.11.2023 in Co-operative CMA.No.13/2009 in

which the Civil Miscellaneous Appeals filed by this petitioner and others have

been dismissed.

3. The learned counsel for the petitioner submitted that the appellate

authority, without following the provision of Order XLI Rule 17 of CPC, passed

orders on merits in the appeals filed by them in their absence.

4. Reliance was placed on the recent judgment of the Hon'ble Supreme

Court made in SLP.No.23809/2023 wherein the Court has held that if the

appellant does not appear when the appeal is called for, the appeal can only be

dismissed for non prosecution and not on merits. However, the learned Appellate

Authority had chosen to pass an exhaustive order on merits even in the absence of

the appellants. The order would only show at the time when these appeals were

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called that there was no representation on behalf of the appellants. In that case,

the rightful course is to dismiss the appeals for default. Since the court did not

follow the provisions under Order XLI Rule 17 CPC, which would read as under:

"17. Dismissal of appeal for appellant's default:

(1) Where on the day fixed, or on any other day to which the hearing may be adjourned, the appellant does not appear when the appeal is called on for hearing, the Court may make an order that the appeal be dismissed.

Explanation:Nothing in this sub-rule shall be construed as empowering the court to dismiss the appeal on the merits."

5. Had the appeal been dismissed simply, the appellants would have got an

opportunity to restore their appeals and argue the case on merits. But the

Appellate Court had adverted to pass an order on merits, which is not correct. In

view of the above stated reasons, it is appropriate to remand the matter back to

the learned Principal District Judge, Kancheepuram District at Chengalpattu, in

order to pass an order either on merits and in the event that all the appellants

make their appearance and advance their arguments, or, in the absence of their

appearance, to pass an order in compliance with Order 41 Rule 17 of CPC as

already stated above.

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6. In view of the above stated reasons, the Civil Revision Petition is allowed

and the impugned order passed by the learned Principal District Judge,

Kancheepuram District at Chengalpattu dated 03.11.2023 in Co-operative

CMA.No.13/2009 is set aside and the matter is remitted back to the file of the

learned Principal District Judge, Chengalpattu, to pass orders either on merits in

the event that all the appellants make their appearance and advance their

arguments, or, in the absence of their appearance, to pass an order in compliance

with Order 41 Rule 17 of CPC. There shall be no order as to costs. Consequently,

the connected miscellaneous petition is closed.

19.09.2024

Index : Yes /No Internet : Yes/No Speaking: Non-Speaking Neutral: Yes/No

jrs

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To

The Deputy Registrar of Cooperative Societies (Housing), No.18, Varadanar Street, Vedachala Nagar, Chengalpattu.

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

R.N.MANJULA, J.

jrs

and

19.09.2024

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