Allowed

Kalapatti v. Vm Thangavelu

Madras HC9 Dec 2014CMP/426/2014

Case brief

AI extract

What is this about?

An application was filed under Section 115 of the CPC (implied) to set aside the dismissal of a second appeal for default, alleging an error in the cause list regarding the counsel on record. The court accepted the plea due to the discrepancy and restored the appeal.

What did the court decide?

Set aside the order dated 13.12.2013 dismissing the Second Appeal and restored it to file for final hearing on merits.

Kalapatti Vs Vm Thangavelu — Property and Title | Madras HC (2014)

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CMP.No.426 of 2014 in

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S.A.No.1535 of 2005

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R.MAHADEVAN, J .

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This petition has been filed to set aside the order passed in S.A.No.1535 of 2005 and restore the same, which was dismissed for

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default on 13.12.2013.

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The brief averments made by the petitioner in his affidavit

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and reply affidavit are as follows:-

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(i) The suit property was purchased with the funds provided by the then members of the All India National Congress on 20.06.1958 for the benefit of the party. Due to change in political scenerio and split in the Congress Party etc., the suit property now belongs to Janata Dal-S. Indira Congress, which is known commonly and falsely referred as All India National Congress, cannot have any claim over the suit property and therefore, the respondent belongs to that party cannot have any claim over the suit property.

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(ii) The counsel for the petitioner Mr.D.Rajagopal is regularly appearing before this Court on various dates without fail. When the case

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was listed for hearing on 13.12.2013, the name of the counsel on record for the petitioner did not figure in the cause list, but another counsel by name M/s.T.Sakadev and G.Balkkhis Banu were shown in the cause list. The counsel for the petitioner was under the impression that the above case is pending before this Court. It is stated that only on 15.09.2014, when the petitioner called his counsel over phone about the Execution Proceedings initiated by the respondent, the counsel shocked to find that on 13.12.2013 itself, this case was dismissed for non-prosecution. The non-appearance on 13.12.2013 was neither wilful nor wanton, but for the aforesaid reasons.

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(iii) It is also stated that earlier the second appeal was dismissed, at the admission stage itself, by this Court on 30.01.2006 and against which, this petitioner had preferred Special Leave Petition before the Hon'ble Supreme Court, and the Hon'ble Supreme Court was pleased to

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remand back the matter with the direction to this Court to dispose the matter on merits. Even though it is stated by the respondent that the delivery of the suit property has been effected and it has been recorded, the petitioner submitted, on legal advice, that as soon as the exparte

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order is set aside and the appeal is restored to file to be heard on merits,

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the status quo ante that was prevailing pending disposal of the appeal should be restored and possession to be given to the appellant. If the Second Appeal is not restored, the petitioner will be put to irreparable loss and hardship besides being denied reasonable opportunities to canvass merits and if the Second Appeal is restored, no prejudice would be caused to the respondent. Hence, this petition.

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The brief averments made on behalf of the respondents 1 and 3 in their counter affidavit and rejoinder affidavit are as follows:(i) A suit filed in O.S.No.643 of 1981 against seven persons,

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and 3 in their counter affidavit and rejoinder affidavit are as follows:-

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including the petitioner, for declaration, permanent injunction and for rendition of accounts, was decreed as prayed for on 18.11.2003. The Appeal filed in A.S.No.28 of 2004, was also dismissed on 28.03.2005. Challenging the concurrent findings of the courts below, the petitioner filed the above second appeal, which was earlier dismissed by this Court on 30.01.2006. Against which, the petitioner preferred an appeal before the Hon'ble Supreme Court in Civil Appeal No.4442 of 2007. By order dated 21.09.2007, the Hon'ble Supreme Court directed this Court to

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formulate substantial questions of law and then to dispose of the second appeal on merits within six months.

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(ii) Pursuant to the order of the Hon'ble Supreme Court, substantial questions of law have been framed on 24.09.2013 and posted for final disposal on 24.10.2013, 26.11.2013 and 10.12.2013 and finally on 13.12.2013. As there was no representation by the petitioner on the hearing dates, this Hon'ble Court was pleased to dismiss the appeal on 13.12.2013. Thereafter, E.P.No.216 of 2014 was filed for delivery of possession and the suit property has been delivered to the respondent and now the suit property is in possession of the Coimbatore District Congress Committee represented by its President V.M.C.Manohar, who is acting as the President from April 2008. Delivery of possession was recorded by the learned II Additional Subordinate Judge, Coimbatore, on 24.09.2014 and E.P.No.216 of 2014 was closed.

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(iii) The petitioner was collecting a sum of Rs.45,000/- per

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month, i.e., Rs.5,40,000/- per year from the tenants towards rent, in his individual capacity and utilised the same for his own personal use and he

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has not maintained any account for the income derived from the suit property, which was in unlawful possession of the petitioner. Even assuming from the date of the suit, he has collected rents for the past 33 years which comes to Rs.1,78,20,000/-.

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(iv) It is the duty of the petitioner and his counsel on record to

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follow the hearing of the appeal once it was posted and adjourned to the next date and the petitioner should have verified the cause list on 10.12.2013 and also the subsequent dates. It is not for the respondent to inform the court that M/s.T.Sakadev and Balkis Banu are not the advocates for the petitioner and his advocate is Mr.D.Rajagopal. It is usual for the parties to change their counsel and file change of vakalth. The allegation that E.P. was filed after 10 months would prove that the respondents are not hasty in getting the decree executed immediately after the dismissal of the second appeal. The petitioner had not given

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any valid reason for his or his advocate's absence before this Court on the hearing dates and that they wilfully left the second appeal unattended so as to dilate the proceedings in order to make unjust enrichment during the pendency of the proceedings. The petitioner, who has no right

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whatsoever in the suit property has filed the present petition, at a belated stage, with ulterior motive only after the execution petition was filed and delivery of possession has been effected. There is no merit in this petition and the petition deserves to be dismissed with compensatory cost.

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Heard Mr.S.V.Jayaraman, learned Senior Counsel appearing

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on behalf of M/s.D.Rajagopal, learned counsel on record for the petitioner and Mr.Masilamani, learned Senior Counsel appearing on behalf of M/s.V.Nicholas, learned counsel on record for the respondents 1 and 3.

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5. Perusal of the typed set of documents, which contain copies

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of the cause list dated 24.10.2013, 26.11.2013, 10.12.2013 and 13.12.2013, would show that on 24.10.2013 the name of the counsel on

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record for the petitioner was shown as M/s.D.Rajagopal and O.S.Vijayasarathi, and on 26.11.2013, 10.12.2013 and 13.12.2013 the name was shown as M/s.T.Sakadev and G.Balkkhis Banu instead of M/s.D.Rajagopal and O.S.Vijayasarathi. Hence, this Court is of the view

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that due to the above said error in the cause list, the counsel on record

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for the petitioner might not appear before this court on the said hearing dates.

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Having considered the submissions made by the learned

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senior counsel on either side and also in view of the fact that the Hon'ble Supreme Court has directed this Court to dispose of the Second Appeal

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on merits and to give an opportunity to the petitioner to putforth his case, this Court is inclined to set aside the dismissal order passed in S.A.No.1535 of 2005 on 13.12.2013 and restore the same to be taken on

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file. The Second Appeal No.1535 of 2005 is directed to be posted on

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18.12.2014 at 2.15 p.m for final hearing.

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Accordingly, this petition is allowed and the second appeal is

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restored to file.

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09.12.2014

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Index : yes/no Internet : yes/no mra

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Note : Issue order copy on 11.12.2014

R.MAHADEVAN, J .

mra

CMP.No.426 of 2014 in S.A.No.1535 of 2005

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09.12.2014

Kalapatti v. Vm Thangavelu

Case brief

What is this about?

What did the court decide?

Kalapatti v. Vm Thangavelu

Case brief

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