Dismissed¶¶47

M.Venkatesan v. Kanchana

Madras HC10 Feb 2026CMA/3426/2025

Case brief

AI extract

What is this about?

Madras High Court; C.M.A.No.3426 of 2025; R. Kalaimathi, J.; decision dated 10.02.2026; restoration application dismissed; Section 5 of the Limitation Act; ex parte decree; set aside ex parte decree; dismissal for default; reasonable cause; fever; advocates' boycott; I.A.No.2 of 2024; I.A.No.1 of 2022; O.S.No.43 of 2012; I Additional District and Sessions Judge, Vellore; partition suit; Section 43 Rule 1 CPC; appeal dismissed; no costs.

What did the court decide?

The defendants 1 to 4 did not have interest to conduct the trial, and the reasons stated in the affidavit (fever and boycott by advocates) cannot be taken as a reasonable cause for their non-appearance before the Trial Court. ¶¶46

M.Venkatesan Vs Kanchana — Madras HC (2026) — LawSathi Research

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C.M.A.No.3426 of 2025

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IN THE HIGH COURT OF JUDICATURE AT MADRAS

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DATED: 10.02.2026

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CORAM

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THE HONOURABLE MRS JUSTICE R. KALAIMATHI

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C.M.A.No.3426 of 2025 and C.M.P.No.28950 of 2025

1.M.Venkatesan

2.Devakiammal

3.Parameswari

4.Gajalakshmi .. Appellants / Defendants 1 to 4 Vs. st 1.Kanchana .. 1 Respondent/Plaintiff 2.N.Ramakrishnan nd th ..2 Respondent / 5 Defendant

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1.Kanchana 2.N.Ramakrishnan

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Prayer: This Civil Miscellaneous Appeal is filed under Section 43 Rule 1 of the Code of Civil Procedure to set aside the fair and decretal order dated 28.03.2025 in I.A.No.2 of 2024 in I.A.No.1 of 2022 in O.S.No.43 of 2012 on the file of the I Additional District and Sessions Judge, Vellore, Vellore District.

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For Appellants : Mr.S.William

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Page 1 of 7

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

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C.M.A.No.3426 of 2025

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JUDGMENT

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This Civil Miscellaneous Appeal is directed against the fair and decretal order dated 28.03.2025 made in I.A.No.2 of 2024 in I.A.No.1 of 2022 in O.S.No.43 of 2012 on the file of I Additional District and Sessions Judge, Vellore, Vellore District.

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The petitioners are the defendants No.1 to 4 and the first respondent is the plaintiff and the second respondent, who is the tenant of the plaint

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th schedule property, is the 5 respondent.

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Parties are indicated herein as per their litigative status and ranking before the Trial Court.

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The details of the affidavit in I.A.No.2 of 2024 in I.A.No.1 of 2022 in O.S.No.43 of 2012 are given in brief:

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(i) The petitioners 1, 3, and 4 are the children of one deceased V.D.Munivel. The second petitioner, Devakiammal is the wife of the said deceased V.D.Munivel. The first respondent, Kanchana is the daughter-in-law of the said Munivel and Devakiammal.

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Page 2 of 7

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

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C.M.A.No.3426 of 2025 (ii) One Partheeban S/o Devakiammal, the second petitioner, married

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the plaintiff in the year 2009. The said Partheeban died intestate on 21.04.2010 without any issues. The plaintiff has filed the suit for partition of 6/15 shares in the suit properties.

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(iii) While the suit was pending, it is stated that as all the petitioners/defendants were suffering from fever, they did not appear before the Trial Court. Due to the boycott, the Advocate did not appear before the Trial Court. Consequently, the Trial Court decreed the suit as prayed for.

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(iv) Thereafter, the defendants took out application under Section 5 of the Limitation Act in I.A.No.17 of 2017 and it was dismissed on 09.03.2017. As against the said order, revision was preferred before this Court by the defendants in C.R.P.No.1844 of 2017 and it was allowed by this Court. After receipt of the order of the High Court, Interlocutory Application was renumbered as I.A.No.1 of 2022. On 05.02.2024, the petitioners/defendants did not appear before the Trial Court due to severe fever. The said application was dismissed for default on 05.02.2024. Thereafter, application was filed to restore I.A.No.1 of 2022 on file.

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Page 3 of 7

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

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C.M.A.No.3426 of 2025 5. Details of the counter affidavit filed by the first respondent/plaintiff are

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given in brief:

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The petition averments are denied and they are false. The application was filed to protract the proceedings and waste the time of the Court. The said order was challenged by way of revision, and it was allowed by this Court. The Trial Court choose to dismiss the petition by observing that no document is produced to make out of prima facie case and no reason is stated for the absence of the petitioner for long time.

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6. Discussion :

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One Munivel and the second defendant/Devakiammal have two sons, namely, plaintiff's husband Partheeban and M.Venkatesan/first defendant and two daughters, Parameswari and Gajalakshmi (Defendants 3 and 4). Fifth defendant is the tenant of item No.1 of the plaint 'A' schedule property. Plaintiff Kanchana is the wife of the above said deceased Partheeban. She has filed a suit for partition seeking 6/15 share in the plaint 'A' schedule property and directing the defendants 1 to 4 to return plaint 'B' and 'C' schedule properties or value of the said properties to the plaintiff.

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It is learnt that when the suit was pending for trial, as the defendants 1 to 4 did not appear before the Trial Court, ex-parte judgment was passed by the Trial Court. Hence, the defendants 1 to 4 took out an application under

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Page 4 of 7

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

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C.M.A.No.3426 of 2025 Section 5 of the Limitation Act in I.A.No.17 of 2017 and the same was dismissed by the Trial Court on 09.03.2017. Against the said order of the Trial Court, revision was preferred before this Court in C.R.P.No.1844 of 2017 and it was allowed and the said petition was taken out on file in I.A.No.1 of 2022. Again, due to the absence of the defendants 1 to 4, the said application was dismissed for default on 05.02.2024. Thereafter, to restore the said application, I.A.No.2 of 2024 was filed by the defendants. The reason mentioned in the affidavit is that as all the petitioners were suffering from viral fever, they were unable to appear before the Trial Court. Besides that, Advocates were Boycott.

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Originally, the suit was instituted by the sole plaintiff, Kanchana W/o Partheeban in the year 2011 (O.S.No.45 of 2011). In the year 2016, as the defendants 1 to 4 did not appear before the Court, they were set exparte and the exparte decree was passed on 05.07.2016. Against which, application under Section 5 of the Limitation Act was filed and it was dismissed by the Trial Court. Thereafter, upon revision before this Court, it was ordered to be allowed. Thereafter, when the matter was pending for trial, again due to the non-appearance of the defendants, they were set exparte.

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The reason mentioned by the defendants is that all were suffering from fever and hence, they were unable to appear before the Trial Court.

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Page 5 of 7

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

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C.M.A.No.3426 of 2025 10. As rightly pointed out by the first respondent/plaintiff, the

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petitioners/defendants 1 to 4 did not have interest to conduct the trial and the reasons mentioned in the affidavit can never be taken as a reasonable cause for their appearance. More so, the Trial Court in proper perspective, has dismissed the application. This Court does not find any infirmity or perversity in the order of the Trial Court. This Court also does not find any good reason to upset the finding of the Trial Court.

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