This short order details the dismissal of a second appeal for non-prosecution. The appellant repeatedly failed to argue or demonstrate steps taken towards summons and service, despite multiple extensions granted over several years, warranting the dismissal of the appeal.
Second Appeal dismissed for non-prosecution; judgment and decree below confirmed.
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IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 04.11.2016
THE HON'BLE Dr.JUSTICE G.JAYACHANDRAN
S.A.No.1034 of 1992
Family Manager,
Muthusami Gounder, .. Petitioner
Versus
1. Chennimalai Gounder (deceased)
2. Ramasami
3. Karuppusami
4. Manikkam
5. Pappammal
6. Swaminathan
7. Kannammal
8. Sivakami
9. Balamani .. Respondents
R5 to 9 are brought on record as legal heirs of the deceased first respondent vide order of Court dated 28.11.2005 proceedings in CMP.No.13691 to 13693 of 2002.
Appeal filed under Section 100 of the Civil Procedure Code to set aside the judgment and decree as made in A.S.No.61 of 1990 dated 19.11.1991 on the file of the Subordinate Judge, Dharapuram reversing the judgment and decree made in O.S.No.36 of 1990 dated 12.09.1990 on the file of the District Munsif, Kangayam.
The appellant is not ready to contest the appeal. Perusal of the record, this Court finds that, on 18.03.2013 this Court has granted time to take steps and file batta on or before 28.03.2013 or otherwise the second appeal would stand automatically dismissed.
04.11.2016
"For being spoken to "
This matter having been listed order the caption for being sopoken to on 17.11.2016 pursuant to the order of this court dated 4.11.2016 and made herein in the presence of the above said counsels on either side, the court made the following order:-
This Second Appeal is listed today under the caption “for being spoken to”, at the instance of the learned counsel for the appellant.
2.When this second appeal taken up for hearing on 04.11.2016, the learned counsel for the appellant was not ready to contest the appeal. Further, perusal of the records revealed that no steps have been taken to serve notice on the newly impleaded respondents. Recording the same, this Court dismissed the above Second Appeal.
3.While drafting the decree, the Registry has found that steps was taken by the appellant to implead the respondents and after service of notice to the respondents, their names were also shown in the cause list. Since, the second part of the judgment dated 04.11.2016 is not in consonance with the facts on record, this Court posted the matter “for being spoken to” and listed the matter on 17.11.2016.
4.On 17.11.2016, the learned counsel for the appellant sought for time to argue the matter. Hence, the matter was directed to be listed on 18.11.2016. Unfortunately, even today (18.11.2016), the learned counsel who represents the appellant is not ready to argue the matter, but also seeks further time.
5.Since, the matter is of the year 1992 and records reveals that enough indulgence has been shown to the appellant on
various occasions and even after dismissing the Second Appeal, another chance was given to the learned counsel for the appellant to argue the matter but, the same was turned futile. There seems to be no sign of making submissions on behalf of the appellant. Hence, this Court no other go except to dismiss the second appeal for non prosecution. Accordingly, the Second Appeal is dismissed.
6.Except making the above observation, the judgment dated 04.11.2016 in S.A.No.1034 of 1992 shall stand confirmed.
Sd/-
Asst.Registrar
/true copy/
Sub Asst. Registrar
To
1. The Subordinate Judge,
Dharapuram
2. The District Munsif,
Kangayam.
3. The Section Officer
VR Section,
High Court, Madras
2 ccs to Ms.M. Srividhya, Advocate, Sr. 67024 and 63080
S.A.No.1034 of 1992
GJ (CO) 04.11.2016/ 18.11.2016
kk 9/12
1 issue framed by the court
Whether the second appeal should be dismissed for non-prosecution given the appellant's failure to contest and argue despite multiple grants of time.
1 provisions across 1 enactments
Family Manager
Muthusami Gounder
Chennimalai Gounder
Ramasami
Karuppusami
Manikkam
J.G.Jayasankar
G.Raja
G.Jayachandran
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
