Allowed

Venkatachalachari v. Gangamma

Madras HC16 Jul 2014CMA/256/2014

Case brief

AI extract

What is this about?

The High Court allowed the Civil Miscellaneous Appeal filed to set aside an ex parte order dismissing an application to restore a first appeal. The court acted in the interest of justice, directing the appellants to pay costs to the respondents before restoring the first appeal for hearing on merits.

What did the court decide?

Civil Miscellaneous Appeal allowed and impugned order set aside; First Appeal to be restored on payment of Rs. 2,000/- costs.

Venkatachalachari Vs Gangamma — Civil Procedure and Limitation | Madras HC (2014)

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In the High Court of Judicature at Madras

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Dated : 16.07.2014

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Coram

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The Honourable Mr.Justice R.SUBBIAH

C.M.A.No.256 of 2014

and

M.P.No.1 of 2014

1.Venkatachalachari

2.Nanjundachari

3.Rukkumaniamma ..Appellants/Defendants

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..vs..

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1.Gangamma 2.Nanjamma 3.Lakshmamma 4.Krishnachari ..Respondents/Respondents

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Civil Miscellaneous Appeal has been filed under Order 43 Rule 1 (T) of CPC, as against the order dated 06.08.2013 made in I.A.No.80 of 2012 in A.S.No.20 of 2010 on the file of the Court of Subordinate Judge, Hosur.

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For Appellants : Mr.T.Dhanasekaran For Respondents : Mr.R.Selvakumar

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JUDGMENT

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The appeal has been filed as against the order dated 06.08.2013 made in I.A.No.80 of 2012 passed by the learned Subordinate Judge, Hosur, dismissing the application filed by the appellants herein to set aside the exparte order of dismissal passed in A.S.No.20 of 2010 and to restore the said appeal on file.

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2.The respondents herein have filed a suit in O.S.No.193 of 2007 on the file of the learned District Munsif-cum-Judicial Magistrate, Dhenkanikottai, seeking for partition and separate possession and allotment of 4/6 share of the suit property to them. The appellants herein filed their written statement and contested the suit. After trial, the said suit was decreed as prayed for. Aggrieved over the same, the appellants herein have filed an appeal in A.S.No.20 of 2010 before the Sub-Court, Hosur. According to the appellants, since they had gone on pilgrim-tour to Tripathi and their counsel also went to Tirupur to attend some urgent work, they did not attend Court on

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https://hcservices.ecourts.gov.in/hcservices/

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11.10.2012. After returning from the pilgrim-tour, the appellants came to know that the appeal was dismissed for default on 11.10.2012 by the lower appellate Court. Hence, they have filed an application in I.A.No.80 of 2012 to set aside the exparte order and to restore the appeal on file. But, the said application was vehemently opposed by the 4^th respondent by filing a counter statement. After hot contest, the said application was dismissed by the lower appellate Court. Aggrieved over the same, the present civil miscellaneous appeal has been filed by the appellants.

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3.Heard the learned counsel on both sides and perused the materials available on record.

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4.On a perusal of the impugned order, this Court finds that the lower appellate Court has dismissed the application mainly on the ground that appeal was dismissed on 11.10.2012, but the appellants herein filed the application as if the appeal was dismissed on 15.10.2012 and on that day they were not in station. Thus, the lower appellate Court has come to the conclusion that the absence of the appellants as well as their counsel on the date of hearing viz., 11.10.2012, has not been explained by the appellants

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5.Today, when the matter is taken up for hearing, the learned counsel appearing for the appellants submitted that wrong mentioning of the date in the affidavit filed in support of the application for setting aside the exparte order was only due to oversight. Thus, he prayed for the setting aside the exparte order. But, the learned counsel for the respondents opposed the same.

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6.Irrespective of the submissions made on both sides, this Court is of the opinion, in the interest of justice, without going into the merits and demerits of the submissions made on both sides, the civil miscellaneous appeal filed by the appellants could be allowed on payment of cost of Rs.2,000/- to the respondents, so that the appellants may have a chance of contesting the first appeal on merits.

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7.Accordingly, this Court sets aside the impugned order and consequently, the appeal is allowed subject to the condition that the appellants shall pay a sum of Rs.2,000/- as costs to the respondents within a period of two weeks from the date of receipt of a copy of this order. On such payment, the lower appellate Court shall direct the appellant herein to file a fresh affidavit, and restore the appeal on file and dispose of the same on merits as early as possible.

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https://hcservices.ecourts.gov.in/hcservices/

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Consequently, connected Miscellaneous Petition is closed.

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Sd/-
Assistant Registrar
/ True copy /
Sub Assistant Registrar
ssv
Copy to
1.The Subordinate Judge,
Hosur.
+1 C.C. to MR.T.Dhanasekaran Advocate SR.No.31528
+1 C.C. to MR.R.Selvakumar Advocate SR.No.31604
C.M.A.No.256 of 2014
and
M.P.No.1 of 2014
TEJ(CO)
VS 18.09.2014

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https://hcservices.ecourts.gov.in/hcservices/

Venkatachalachari v. Gangamma

Case brief

What is this about?

What did the court decide?

Venkatachalachari v. Gangamma

Case brief

What is this about?

What did the court decide?

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