Allowed¶80

Pappathi@Devayal(Died) v. Kolanthayal(Died)

Madras HC7 Apr 2025CRP/139/2020

Case brief

AI extract

What is this about?

Article 227 revision; impleadment of necessary party; restoration of application dismissed for default; non payment of batta; failure to take notice; junior counsel oversight; ex parte preliminary decree; partition suit; P.U.Murthy non-joinder; Section 37(1) and 37(2) Tamil Nadu Court Fees and Suit Valuation Act; Subordinate Court Gobichettipalayam; O.S.No.107 of 2010; I.A.No.5 of 2019; I.A.No.6 of 2019; condonation of short delay; harsh order; C.M.P.No.789 of 2020; P.T. Asha J.; decision dated 07.04.2025.

What did the court decide?

Civil Revision Petition allowed; the order dated 03.01.2020 in I.A.No.6 of 2019 and the order dated 12.12.2019 in I.A.No.5 of 2019 in O.S.No.107 of 2010 set aside; I.A.No.5 of 2019 restored to file; connected C.M.P.No.789 of 2020 closed; no costs. ¶80

Pappathi@Devayal(Died) Vs Kolanthayal(Died) — Writ and Judicial Review | Madras HC (2025)

What the court decided

AI extract

Outcome

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Issue for consideration

Whether the order dated 03.01.2020 of the learned Sub Judge, Gobichettipalayam dismissing I.A.No.6 of 2019 (the application to restore I.A.No.5 of 2019, whereby the plaintiffs sought to implead P.U.Murthy as 8th defendant in partition suit O.S.No.107 of 2010) was sustainable, so as to warrant interference under Article 227 of the Constitution of India. +1 more

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Court's answer

The order of the learned Sub Judge, Gobichettipalayam dismissing I.A.No.5 of 2019 was rather harsh; therefore the Civil Revision Petition is allowed, the order dated 03.01.2020 in I.A.No.6 of 2019 is set at naught, the order dated 12.12.2019 in I.A.No.5 of 2019 is set aside, and the application is restored to file.

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Ratio / Principle

There was no inordinate delay: the plaintiffs immediately took steps to restore the application after the default dismissal, the restoration having been sought within four days.

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Key takeaways

At the very first instance the learned Judge below proceeded to dismiss I.A.No.5 of 2019 for default, the application having been filed on 09.12.2019 and dismissed for default within three days.ratio¶78

Detailed headnote1 paragraphs

Madras High Court (P.T. Asha, J.) allows C.R.P.(PD)No.139 of 2020 preferred under Article 227 of the Constitution of India by the plaintiffs of partition suit O.S.No.107 of 2010 (Subordinate Court, Gobichettipalayam) against the order dated 03.01.2020 in I.A.No.6 of 2019 dismissing their application to restore I.A.No.5 of 2019 - the impleading petition (taken out 09.12.2019) to arraign sharer P.U.Murthy, left out at the ex parte preliminary decree stage, as 8th defendant. I.A.No.5 of 2019 had been dismissed for default on 12.12.2019 - recorded variously as failure to take notice to the proposed party and as non payment of batta - within three days of filing; restoration was sought within four days, the lapse being attributed to the junior counsel's oversight. Holding the dismissal 'rather harsh' and finding no inordinate delay, the Court sets aside both orders, restores I.A.No.5 of 2019 to file, closes the connected C.M.P.No.789 of 2020, and directs no costs.

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C.R.P.No.139 of 2020

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IN THE HIGH COURT OF JUDICATURE AT MADRAS

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Dated :07.04.2025

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Coram:

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THE HONOURABLE Ms. JUSTICE P.T.ASHA

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C.R.P.(PD)No.139 of 2020 and C.M.P.No.789 of 2020

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Pappathi @ Devayal (died)

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1.Sarasu @ Saraswathi, F/A 56 Wife of Thangarasu Daughter of Late Uruma Naicker, Door No.17, Kannadasan Street, Surampatti, Erode-9.

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2.Krishnaveni, F/A 49, Wife of Shanmugam, Daughter of Late Uruma Nicker No.13, LIC Nagar, Kaikatty Valasu, Erode Taluk,Erode District.

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3.Thangamani,F/A 40, Wife of Sivanantham, Daughter of Uruma Naicker Door No.3, Rajaji Nagar, 2^nd Street, Cotton Mill Road, Tiruppur District 02.

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1/12

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

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4.Azhagu Naicker,M/A 80, Son of Rama Naicker, Door No.28, Ayyakaduveethi, Pallapalayam, Kanjikoil, Perundurai Taluk.

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5.Kandasamy, M/A 52, Son of Azhagu Naicker, Door No.28, AyyakaduVeethi, Pallapalayam, Kanjikoil, Perundurai Taluk.

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C.R.P.No.139 of 2020

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.. Petitioners/Petitioners/Plaintiffs

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/versus/

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Kolanthayal (died)

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1.Nataraj @ Mani, Son of Uruma Naicker, Pomma Naickenpalayam, Odathurai Post, Gobichettipalayam Taluk, Erode District.

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Selvam @ Palaniappan (died)

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2.Eswari, Wife of Nataraj Daughter of Uruma Naicker Karattakaadu, Puthupirivu, Vinayagar Koil Street, Kangayam Road, Tiruppur-8.

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

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3.Mallika,

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3.Mallika, Wife of Balan @ Gopal, Ration Shop, Near Kumaran College, Tiruppur Taluk, Tiruppur District.

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C.R.P.No.139 of 2020

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4.Jothi, Daughter of Selvan @ Palaniappan, Petti Shop, Suppatta Naickenpalayam, Tiruppur Taluk, Tiruppur District.

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5.Arulkumar, Son of Selvan @ Palaniappan, PommaNaickenpalayam, Odathurai post, Gobichettipalayam Taluk, Erode District. .. Respondents/Respondents/Defendants

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Civil Revision Petition has been filed under Article 227 of the Constitution of India, praying to set aside the fair and decretal order dated 03.01.2020 made in I.A.No.6 of 2019 in O.S.No.107 of 2010 on the file of the Subordinate Court, Gobichettipalayam.

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For Petitioners :Mr.M.Guruprasad For Respondents :Mr.P.V.Ramachandran for R1 Notice served to R3 to R5 No appearance

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

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ORDER

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C.R.P.No.139 of 2020

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Challenging the order dated 03.01.2020 made in I.A.No.6 of 2019 in

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O.S.No.107 of 2010, the plaintiffs have approached this Court.

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2.The short facts of the case are set out hereinbelow:-

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The plaintiffs had filed the suit in O.S.No.107 of 2010 seeking

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partition and separate possession of their 4/8 shares in the suit schedule property and for an injunction restraining the defendants from alienating the plaintiffs' share to the third parties, with specific reference to boundaries, till final decree is passed.

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It is the case of the plaintiffs that the first item of the suit schedule

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property was purchased by their grandfather, Uruma Naicker, under a registered sale deed dated 30.04.1937. The second item of the suit schedule property was purchased by their grandmother Valliammal under a registered sale deed dated 06.12.1941. The father of the plaintiffs Uruma Naicker had purchased the third item of the property under a registered sale deed dated

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

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C.R.P.No.139 of 2020

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06.08.1945 and the fourth item of the property was also purchased by him under a registered sale deed dated 05.10.1960. After the demise of Uruma Naicker, the plaintiffs and the defendants inherited the same as his legal representatives. As the suit properties are the self acquired properties of Uruma Naicker, the plaintiffs and the defendants are each entitled to a 1/8^th share therein.

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The plaintiffs would submit that since there was an inconvenience in jointly enjoying the property, they demanded partition on 14.06.2010. A notice was also sent by the plaintiffs regarding the second and third items of the property, specifically demanding partition. However, there was no response from the defendants. Hence, the plaintiffs have come forward with the suit in question.

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The fourth defendant had filed the written statement, in which, she

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more or less adopted the plaintiffs’ case stating that she is entitled to a 1/8^th share.

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

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C.R.P.No.139 of 2020

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The contesting defendant namely the second defendant had filed

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the written statement inter alia contending that the properties are the ancestral properties of his father Uruma Naicker's father Rama Naicker. He also also contended that on 27.05.1982, there was a partition of the ancestral properties between the defendants and their father. The plaintiffs have suppressed the said partition and had obtained an ex parte preliminary decree. That apart, one of the sharers, P.U.Murthy, to whom the property was allotted on 27.05.1982, in the partition, has not been made a party. However, the property allotted to him under the partition deed has been included in the schedule of properties. The defendants further submitted that they are in enjoyment of their respective shares and had been remitting the revenue outgoings.

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The second defendant further submitted that the plaintiffs have

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suppressed the fact that P.U.Murthy along with his wife and children are living in Anthiyur. The 2^nd defendant submitted that since the ancestral

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6/12

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

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C.R.P.No.139 of 2020

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property had already been partitioned, the plaintiffs are not entitled to a share in the said property. He also raised the issue of non joinder of a necessary party. Since the plaintiffs are not in joint possession, the Court fee paid under Section 37(2) of the Tamil Nadu Court Fees and Suit Valuation Act was erroneous and the plaintiffs ought to have filed Court fee under Section 37(1) of the aforesaid Act. Therefore, they sought dismissal of the suit.

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Pending suit, the plaintiffs have come forward to file an application in I.A.No.5 of 2019 to implead the 8^th respondent as the 8^th defendant in the aforesaid suit. The 8^th defendant is the said P.U.Murthy.

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In the affidavit filed in support of the said application, the plaintiffs submitted that they had filed the suit based on the sale deeds dated 30.04.1937, 06.12.1941, 06.08.1945 and 05.10.1960. That apart, in the written statement, the defendants brought up the partition deed dated 27.05.1982 and also raised the issue of non joinder of a necessary party

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7/12

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

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C.R.P.No.139 of 2020

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P.U.Murthy.

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Considering the fact that he is a proper and necessary party, this application for impleading him as a party has been taken out. The defence to the above petition was that it was highly belated and an abuse of the process of law. That apart, the suit is at the stage of argument and at this later stage, the application has been filed.

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It appears that the said application, I.A.No.5 of 2019 came to be dismissed for default on 12.012.2019 on account of the failure on the part of the plaintiffs to take notice to the proposed party. In the affidavit filed in support of the application to restore I.A.No.5 of 2019, namely I.A.No.6 of 2019, the plaintiffs submitted that they were not aware of the fact that the notice had not been served on the proposed 8^th respondent; and that the failure to take notice was on account of the fact that, the junior counsel, to whom, the case has been entrusted, by oversight, had forgotten to take notice. The defendants contested the said application stating that the

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C.R.P.No.139 of 2020

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plaintiffs are only bent on protecting the proceedings.

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The learned Sub Judge, Gobichettipalayam, by her order dated 03.01.2020 was pleased to dismiss the said application. Challenging the same, the petitioners are before this Court.

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Heard the learned counsel appearing for the petitioners and the learned counsel appearing for the 1^st respondent and perused the materials available on record.

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It appears that on 12.12.2019, I.A.No.5 of 2019 was dismissed on account of the failure on the part of the plaintiffs to take notice both privately as well as through Court to the proposed party. The error was attributed to the oversight on the part of the junior counsel. Within four days, the application has been filed to restore I.A.No.5 of 2019. The suit in question is one for partition and it is seen that the plaintiffs had taken out an application to implead the proposed party on 09.12.2019, which was

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

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C.R.P.No.139 of 2020

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dismissed on 12.12.2019 for non payment of batta. The respondents/defendants have filed their counter thereafter, on 20.12.2020. The plaintiffs had immediately taken steps to restore the application and there does not appearer to be any inordinate delay in initiating the proceedings. At the very first instance, the learned Judge has proceeded to dismiss I.A.No.5 of 2019 for default. As already stated, the said application was filed on 09.12.2019 and dismissed for default within three days.

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Considering the above facts, I am of the considered opinion that

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the order of the learned Sub Judge, Gobichettipalayam dismissing the I.A.No.5 of 2019 is rather harsh and therefore, the Civil Revision Petition is allowed and the fair and final order passed by the Subordinate Court, Gobichettipalayam in I.A.No.6 of 2019 dated 03.01.2020 is allowed and the order made in I.A.No.5 of 2019 in O.S.No.107 of 2010, dated 12.12.2019 is also set aside and the application restored to file. Consequently, connected miscellaneous Petition is closed. No costs.

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07.04.2025

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10/12

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C.R.P.No.139 of 2020

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ari Index:yes/no Speaking order/non speaking order Neutral citation:yes/no To The Subordinate Court, Gobichettipalayam.

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C.R.P.No.139 of 2020

P.T.ASHA,J.

ari

C.R.P.(PD)No.139 of 2020

and

C.M.P.No.789 of 2020

07.04.2025

12/12

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

Procedural history

How this case reached the court

AI extract

Order under challenge
Dismissal by the learned Sub Judge, Gobichettipalayam of I.A.No.6 of 2019, the plaintiffs' application to restore I.A.No.5 of 2019 (the impleading application in O.S.No.107 of 2010).¶72
Subordinate Court, Gobichettipalayam · 03.01.2020
Prior proceeding
Plaintiffs filed suit O.S.No.107 of 2010 for partition and separate possession of their 4/8 shares in the suit schedule property and for injunction restraining alienation till final decree.¶38
Prior proceeding
Contesting second defendant contended the properties were ancestral (of Rama Naicker) and stood partitioned on 27.05.1982 between the defendants and their father; he alleged the plaintiffs suppressed this partition.¶53
Prior proceeding
Non-joinder objection: sharer P.U.Murthy, to whom property was allotted in the 27.05.1982 partition, was not made a party though his parcel was included in the schedule; plaintiffs alleged to have obtained an ex parte preliminary decree.¶53
Prior proceeding
Second defendant contended the court fee paid under Section 37(2) of the Tamil Nadu Court Fees and Suit Valuation Act was erroneous since plaintiffs were not in joint possession, and Section 37(1) fee ought to have been paid.¶59
Prior proceeding
Pending suit, plaintiffs filed I.A.No.5 of 2019 to implead P.U.Murthy as 8th defendant, he being a proper and necessary party.¶60
Prior proceeding
Defence to the impleading petition: it was highly belated and an abuse of the process of law, the suit being at the stage of argument.¶66
Prior proceeding
I.A.No.5 of 2019 came to be dismissed for default on 12.12.2019 on account of the plaintiffs' failure to take notice to the proposed party, attributed to the oversight of the junior counsel.¶14
Prior proceeding
Per the revisional court's narration, the impleading application taken out on 09.12.2019 was dismissed on 12.12.2019 for non payment of batta.¶78
Prior proceeding
Plaintiffs filed I.A.No.6 of 2019 to restore I.A.No.5 of 2019, explaining the lapse as the junior counsel's oversight.¶67
Prior proceeding
The restoration application was filed within four days of the default dismissal.¶74

Pappathi@Devayal(Died) v. Kolanthayal(Died)

Case brief

What is this about?

What did the court decide?

Pappathi@Devayal(Died) v. Kolanthayal(Died)

Case brief

What is this about?

What did the court decide?

Why is it important?

What the court decided

Issues for consideration

Statutes considered

Procedural history

Parties & counsel

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