Duraisamy (Deceased) Vs a.M.Thangaraj — Madras HC (2025) — LawSathi Research

Duraisamy (Deceased) Vs a.M.Thangaraj — Madras HC (2025) — LawSathi Research

What the court decided

AI extract

Outcome

Restoration of Second Appeal S.A.No.918 of 2008 (previously dismissed for default on 07.02.2025), conditional on the Appellants bearing the entire measurement expenses and the disputed property being measured by a Surveyor and a locally appointed Advocate Commissioner after notice to both parties, with the reports sent to the High Court within three months for recording the settlement.

Issue for consideration

Whether the Civil Miscellaneous Petition seeking restoration of Second Appeal S.A.No.918 of 2008, dismissed for default on 07.02.2025, should be allowed.

Court's answer

C.M.P.No.5531 of 2025 is allowed on condition that the entire expenses for measuring the property with the aid of a Surveyor and an Advocate Commissioner, with the documents relied on by both parties, are to be borne by the Appellants, who are the Defendants before the learned District Munsif, Sathyamangalam.

Ratio / Principle

Since the Defendant has died and the legal heirs of the Defendant have been impleaded in the Second Appeal, they are directed to engage their respective Counsels before the trial Court and measure the property after issuing notice to both parties.

Key takeaways

The learned District Munsif, Sathyamangalam is directed to issue notice to both parties and direct them to proceed with measuring the properties by appointing a local Counsel/Advocate from the local Bar as Advocate Commissioner, the expenses to be met by the Defendants.ratio¶9
The report of the Surveyor and the Advocate Commissioner shall be sent to this Court for recording the settlement within a reasonable period of three months.ratio¶9

Detailed headnote1 paragraphs

Madras High Court (Sathi Kumar Sukumara Kurup J., 16-04-2025) allows C.M.P.No.5531 of 2025 and restores Second Appeal S.A.No.918 of 2008, which stood dismissed for default on 07.02.2025 for want of representation while listed under the caption 'for dismissal'. Restoration follows the near-settlement reached in mediation, which was contingent on measurement of the disputed property. Conditions imposed: (i) the Appellants, who are the Defendants before the District Munsif, Sathyamangalam, bear the entire expenses of measurement by a Surveyor and an Advocate Commissioner with the documents relied on by both parties; (ii) the legal heirs of the deceased Defendant, already impleaded in the second appeal, to engage their counsels before the trial Court; (iii) the District Munsif, Sathyamangalam to issue notice to both parties and facilitate measurement by appointing a local Bar Advocate as Advocate Commissioner at the Defendants' expense; and (iv) the Surveyor's and Advocate Commissioner's reports to reach the High Court within three months for recording the settlement.

CMP No. 5531 of 2025

IN THE HIGH COURT OF JUDICATURE AT MADRAS

DATED: 16-04-2025

CORAM

THE HONOURABLE MR JUSTICE SATHI KUMAR SUKUMARA KURUP

C.M.P No. 5531 of 2025 in S.A.No.918 of 2008

Duraisamy (Deceased) S/o. Rasappa Gounder, Alampalayam, Karithottampalayam Village, Sathyamangalam Taluk, Erode. and 3 Others

Selvaraj

S/o. Duraisamy, Alampalayam, Karithottampalayam Village, Sathyamangalam Taluk, Erode.

Bakiyalakshmi

W/o. Subramani, Akkarai Sengapalli, Wakkinangkombai, Annanur Taluk, Coimbatore.

3. Indira

W/o. Chinnaraj, Irubarai Village, Pethikuttai (PO), Mettupalayam Taluk, Coimbatore.

Appellant(s)

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

CMP No. 5531 of 2025

Vs

A.M.Thangaraj

S/o. Maranna Gounder, Olaikaran Thottam, Karithottampalayam Village, Sathyamangalam Taluk, Erode.Erode

Respondent(s)

PRAYER

Civil Miscellaneous Petition filed to pass an order restoring the second appeal in S.A.No.918 of 2008 dismissed for default on 07.02.2025.

For Appellant(s): R.Manickavel

ORDER

This Civil Miscellaneous Petition is filed to restore the Second Appeal in

S.A.No.918 of 2008.

The learned Counsel for the Appellant would submit that the matter

was referred to Mediation. In the mediation, the matter was almost settled. An

interim report was sent to this Court stating that the matter will be settled if the

disputed property is measured with the help of a Surveyor with relevant records

of both the parties.

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

CMP No. 5531 of 2025

Accordingly, the Mediation Report was sent to this Court.

At that stage, there was no representation for the Appellant. The

learned Counsel for the Respondent was present and again it was adjourned under the caption ' for dismissal'.

On 07.02.2025, the then Judge of this Court, Justice S.S.Sundar had

dismissed the Second Appeal stating that there was no representation for the

Appellant inspite of the fact that the case came up for hearing under the caption

'for dismissal'.

Now, the learned Counsel for the Appellant seeks to allow the Civil

Miscellaneous Petition.

C.M.P.No.5531 of 2025 is allowed on condition that the entire

expenses for measuring the property with the aid of a Surveyor and an Advocate Commissioner with the documents relied by both the parties is to

be borne by the Appellant who are the Defendants before the learned

District Munsif, Sathyamangalam.

Now, the Defendant died. The legal heirs of the Defendant had been

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

CMP No. 5531 of 2025

impleaded in the Second Appeal. Therefore, they are directed to engage their

respective Counsels before the trial Court and measure the property after issuing notice to both the parties.

The learned District Munsif, Sathyamangalam is directed to issue

notice to both the parties and direct them to proceed with measuring the properties by appointing a local Counsel /Advocate from the local Bar as an

Advocate Commissioner for which the expenses are to be met by the

Defendants. The report of the Surveyor and the Advocate Commissioner shall

be sent to this Court for recording the settlement within a reasonable period of

three months.

Accordingly, the Civil Miscellaneous Petition is allowed with the

above conditions.

16-04-2025

Index:Yes/No Speaking/Non-speaking order Internet:Yes Neutral Citation:Yes/No

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

CMP No. 5531 of 2025

To

The District Munsif, Sathyamangalam

The Additional District Judge, Fast Track Court-II, Gobichettipalayam.

A.M.Thangaraj

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

CMP No. 5531 of 2025

SATHI KUMAR SUKUMARA KURUP J.

Shl

C.M.P No. 5531 of 2025 in S.A.No.918 of 2008

16-04-2025

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