Dismissed

C.Palanivel v. N.Periyasamy

Madras HC16 Jun 2023CRP/396/2021

Case brief

AI extract

What is this about?

The Madras High Court dismissed a Civil Revision Petition filed under Article 226 of the Constitution. The petition challenged an order by the Principal District Munsif, Namakkal, which had rejected a plaint for lack of specific relief against the Revision Petitioner (5th Defendant). The High Court held that the suit proceeding had advanced beyond the plaint stage, and directing the lower court to

What did the court decide?

The Revision Petition was dismissed. The Principal District Munsif, Namakkal, was directed to proceed with the trial of the suit. No costs.

C.Palanivel Vs N.Periyasamy — Property and Title | Madras HC (2023)

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C.R.P.No.396 of 2021

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IN THE HIGH COURT OF JUDICATURE AT MADRAS

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DATED : 16.06.2023

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CORAM:

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The Hon'ble MR.JUSTICE SATHI KUMAR SUKUMARA KURUP

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C.R.P.No.396 of 2021 and C.M.P.No.3411 of 2021

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C.Palanivel ...Revision Petitioner/Applicant/ 5^th Defendant

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-Vs-

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1.N.Periyasamy 2.P.Prabhakaran ...Respondents/Respondents/ Plaintiffs

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Prayer:- Civil Revision Petition filed under Article 227 of the Constitution of India, against the fair and decretal order passed in I.A.No.1 of 2020 in O.S.No.355 of 2017 on the file of the learned Principal District Munsif, Namakkal, dated 17.12.2020.

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For Petitioner : Mr.K.Rajasekaran for M/s.Charles Kamalesh M.Appaji

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For Respondents : Mr.K.Krishna Prasad for M/s.Sarvabhauman Associates

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O R D E R

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The above Civil Revision has been filed to set aside the fair and

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decretal order passed in I.A.No.1 of 2020 in O.S.No.355 of 2017 on the file of the learned Principal District Munsif, Namakkal, dated 17.12.2020.

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

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C.R.P.No.396 of 2021

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2.Learned Counsel for the Revision Petitioner submitted that the

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Revision Petitioner has impleaded as 5^th Defendant in the suit in O.S.No.355 of 2017.

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3.The learned Counsel for the Revision Petitioner invited the

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attention of this Court to the averments in the plaint, particularly in paragraph no.5, wherein it is stated that the Plaintiff had filed the suit regarding the declaration of pathway. The pathway runs through the suit properties of Defendants 1 to 6. Even though the pathway runs through the properties of Defendants 1 to 6. Defendants 5 and 6 are not objecting to the Plaintiffs using the pathway adjacent to the lands belonging to Defendants 5 and 6 whereas, Defendants 1 to 4 are objecting to the Plaintiffs using the pathway. Therefore, the Plaintiffs had sought the declaration of a common pathway against Defendants 1 to 4 only. Defendants 5 & 6 had not objected and therefore the relief was not sought against Defendants 5 and 6.

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4.In the light of the above pleadings, the learned Counsel for the Revision Petitioner submits that he had filed Petition under Order VII,

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Rule 11 of CPC, seeking to reject the plaint as no specific relief had been https://www.mhc.tn.gov.in/judis 2/6

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C.R.P.No.396 of 2021

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sought against Defendants 5 and 6. In the plaint, there is specific pleading

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that the pathway runs through the land belonging to Defendants 5 and 6 and they had not objected to the Plaintiff using the pathway. Therefore, the Revision Petitioner had sought to reject the plaint against the 5^th Defendant and the Petition in I.A.No.1 of 2020 in O.S.No.355 of 2017 on the file of the learned Principal District Munsif, Namakkal, dated 17.12.2020.

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5.Learned Counsel for the Respondents/Plaintiffs vehemently

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objected to the same, stating that even though in the plaint pleadings it had

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been clearly stated that the pathway running through the lands belonging to Defendants 1 to 6. Defendants 5 and 6 had not objected. Defendants 1 to 4 alone objected. Therefore, they had sought relief of declaration and injunction against Defendants 1 to 4. The learned Counsel for the Respondents contended that 5^th Defendant remained ex parte. Subsequently, he filed Petition to set aside the ex parte and filed written statement as per the daily status of the Court of the learned Principal District Munsif, Namakkal. Originally, the suit was posted for ex parte evidence on 25.07.2018, on which date, the 5^th Defendant had filed Petition

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to set aside the ex parte and along with that, he had filed written statement

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in which he had disputed the plaint averments, claiming that the pathway https://www.mhc.tn.gov.in/judis 3/6

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C.R.P.No.396 of 2021

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runs through his own property and is not a common pathway. Learned Counsel for the Respondents invited the attention of this Court to the specific averments in the written statement filed by the 5^th Defendant. Further, the learned Counsel for the Respondents submitted that the daily status of the proceedings of the learned Principal District Munsif, Namakkal, dated 11.01.2019, wherein it is stated as follows:

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“I.A.No.1010 of 2018 is allowed. Exparte order dated 05.07.2019 against 5^th Defendant is set aside. Written statement of the 5^th Defendant filed. Mr.P.Premkumar, Advocate files change of Vakalat for 5^th Defendant. Issues call on.”

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6.Subsequently as per the daily status dated 11.03.2022, the suit was

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part heard. Therefore, the learned Counsel for the Respondents seeks to dismiss this Petition as not maintainable.

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7.In support of his contention, the learned Counsel for the Respondents relied on the following ruling:-

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In the case of S.Thakeer Ali Vs. S.M.Gutha and Others reported in (2021) 5 CTC 837.

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On consideration of the rival submission of the learned Counsel

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for the Revision Petitioner and the learned Counsel for the Respondents,

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https://www.mhc.tn.gov.in/judis 4/6

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C.R.P.No.396 of 2021

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the above Civil Revision Petition if allowed, result in future legal complications. If the suit had been decreed in favour of the Respondents, in which case the Revision Petitioner herein may agitate his rights in future. To avoid such exigencies, the learned Principal District Munsif, Namakkal, is directed to proceed with the trial.

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In the result, this Civil Revision Petition stands dismissed . No

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costs. Consequently, connected Civil Miscellaneous Petition is closed.

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16.06.2023

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cda Index : Yes/No Speaking/Non-speaking order

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C.R.P.No.396 of 2021

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SATHI KUMAR SUKUMARA KURUP, J.,

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cda

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The Principal District Munsif Court, Namakkal.

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C.R.P.No.396 of 2021

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16.06.2023

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C.Palanivel v. N.Periyasamy

Case brief

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C.Palanivel v. N.Periyasamy

Case brief

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