The High Court allowed the civil miscellaneous appeal and set aside the impugned order. The first appellate court was directed to restore the appeal suit and dispose of it expeditiously within six months after substituting service on the appellant.
The impugned order is set aside and the first appeal suit is restored for disposal within six months.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
C.M.A.No.1825 of 2008
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 16.02.2021
CORAM
THE HON'BLE MR.JUSTICE S.M.SUBRAMANIAM
C.M.A.No.1825 of 2008
and
M.P.No.1 of 2008
1.Pakkiri Ammal
2.Minor Sukumar ..Appellants
Vs.
1.S.Ponnammal
2.Senthil
3.Venkatesan
4.Meenakshi
5.Southern Railway
Rep.by its General Manager,
Park Town, Chennai.
6.Senior Divisonal Personnel Officer,
Southern Railway III Floor,
NGO Annexe, Park Town, Chennai. ..Respondents
Prayer : Civil Miscellaneous Appeal filed under Order 43 Rule 1 (t) of C.P.C., against the fair and decreetal orders dated 11.12.2007 passed in I.A.No.164 of 2006 in A.S.No.68 of 2005 on the file of the Principal Sub Court, Cuddalore.
For Appellants : M/s.R.Meenal
For Respondents : No appearance for R1 to R4 Mr.P.T.Ram Kumar for R5 & R6
C.M.A.No.1825 of 2008
J U D G M E N T
The fair and decreetal order dated 11.12.2007 passed in
I.A.No.164 of 2006 in A.S.No.68 of 2005 is under challenge in the
present Civil Miscellaneous Appeal.
2.The plaintiff is the appellant instituted a suit for declaration to
declare the plaintiff as the legally wedded wife of Swaminathan. The suit
decreed in favour of the plaintiff and an exparte decree was passed. The defendants filed an Appeal Suit in A.S.No.68 of 2005. The first Appellate Court set aside the judgment and decree passed in O.S.No.399 of 2002 and declined the relief sought for in the plaint. Thus, the plaintiff
is constrained to move the present Civil Miscellaneous Appeal.
3.The learned counsel for the appellant mainly contended that the
appellant had not received any summon / notice in the appeal suit. Thus, the appellant could not able to contest the first appeal filed by the respondents. The first Appellate Court decided the appeal suit without noticing the fact that the summon / notice was not served to the appellant and the judgment was delivered allowing the appeal, more specifically,
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C.M.A.No.1825 of 2008
by setting aside the judgment and decree passed by the Trial Court.
appellant made a submission that the appellant is entitled for an
opportunity to adjudicate the matter on merits. The suit was decreed exparte. Thus, there was no proper adjudication before the Trial Court even before the first Appellate Court, in view of the fact that summon was not served to the appellant. Thus, in order to redress the grievance of the parties, a complete adjudication is required. It is contended that the appellant is ready and willing to contest the suit on merits and in accordance with law.
none appeared. However, substitution of service was effected and paper
publication is filed before this Court.
order dated 11.12.2007 passed in I.A.No.164 of 2006 in A.S.No.68 of
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C.M.A.No.1825 of 2008
2005 is set aside and the first Appellate Court is directed to restore the Appeal Suit and dispose of the same as expeditiously as possible, preferably within a period of six months from the date of receipt of a copy of this order. The parties to the appeal suit are directed to co-
operate for the early disposal of the appeal suit by not seeking
unnecessary and frequent adjournments on flimsy grounds.
7. Accordingly, C.M.A.No.1825 of 2008 stands allowed. No costs.
Consequently connected miscellaneous petition is closed.
16.02.2021
Pns
Index: Yes/No
Internet:Yes/No
Speaking order/Non speaking order
To
4/6
C.M.A.No.1825 of 2008
1.The Principal Sub Court, Cuddalore.
2.The General Manager, Southern Railway Park Town, Chennai.
S.M.SUBRAMANIAM, J.
C.M.A.No.1825 of 2008
Pns
C.M.A.No.1825 of 2008
16.02.2010
1 issue framed by the court
Whether the appeal suit should be remanded for disposal on merits after setting aside the decree due to lack of notice to the appellant.
1 provisions across 1 enactments
N.Parvathi Ammal
V.Senthil
Southern Railway
S.M.SUBRAMANIAM
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
