Mrs.D.Jothimayam v. Mrs.P.Sivamayam
IN THE HIGH COURT OF JUDICATURE AT MADRAS
Reserved on: 04.04.2018
Delivered on: 04.10.2018
CORAM
THE HONOURABLE Mrs.JUSTICE S.RAMATHILAGAM C.M.A.No.2586 of 2011 and M.P.No.1 of 2009 D.Jothimayam .. Appellant
Versus
P.Sivamayam .. Respondent Civil Miscellaneous Appeal filed under Section 43 Rule 1(e) of Civil Procedure Code, calling for the records of the Lower Courts, set aside the decree and judgment of the First Appellant Court, passed in A.S.No.16 of 2004 dated 18.01.2010 and decree the suit filed in O.S.No.208 of 2000 on the file of Subordinate Court, Thiruvarur.
For Appellant : Mr.J.Karunanithi For Respondent : Mr.B.Ramamoorthy
J U D G M E N T
This Civil Miscellaneous Appeal has been preferred against the order of the Subordinate Judge, Thiruvarur, in I.A.No.24 of 2009 in A.S.No.16 of 2004 dated 18.01.2010. 2.I.A.No.24 of 2009 was filed by the appellant to restore the appeal, which was dismissed on 06.02.2008.
3.The brief facts of the case is that the suit in O.S.No.208 of 2000 was decreed on 21.01.2004, against which, an appeal was preferred by the appellant. On the date of hearing on 06.02.2008, due to the repair in the bus, in which, he was traveling, he could not reach the Court in time. He was also unable to convey the inconvenience caused to him to the Court, hence, the said appeal was dismissed for default on 06.02.2008.
4.The respondent on the other side has stated that the case was filed in the year 2000 for partition and the same was decreed on 21.01.2004 and now the respondent's age is 76 years and already the appeal was posted on 09.08.2004 for arguments, on that date the appellant's counsel was present before the Court and when it was posted on 07.09.2006 for arguments, the appellant's counsel was not present. The said appeal was posted on 06.02.2008,and the same was dismissed on the same day. This appeal was dismissed on 06.02.2008 and the respondent herein has also filed final decree application in I.A.No.34 of 2009 and the said application was taken on file after 18 months and in the said proceedings also the appellant has not appeared. Further to show the inconvenience caused to
the appellant by way of breakdown of the bus, nothing has been produced before the Court. Hence, the respondent strongly objected for allowing the petition. 5.On hearing both sides and on perusal of the records, it is very much observed that the decree was passed in the year 2004. The appeal filed by him was posted in the list on 07.09.2006 and there was no representation for the appellant, hence, the said appeal was dismissed. The appellant had also filed petition to condone the delay in filing restoration petition in I.A. No.90 of 2007 and the same was allowed. But for the enquiry in the restoration petition, the appellant has not appeared and the said petition in 4/2008 was dismissed. Against the same, an application in I.A. No.24 of 2008 was filed.
It is observed from the proceedings of the case, the appellant is not interested in proceeding with the appeal and it was dismissed. The respondent, who is the decree holder has also filed final decree application and the same is pending. If at all, the appellant is aggrieved by the preliminary decree passed by the Trial Court, he would have proceeded with the appeal at the earliest, whereas, the filing of the appeal and non-appearance on two occasions, when the appeal posted in the list clearly shows the illmotive of the appellant in not proceeding with the appeal and only to prevent the respondent from obtaining the fruits of the decree. 6.Hence, on observation of the attitude of the appellant, this Court is not inclined to allow this Civil Miscellaneous Appeal and the same is dismissed. No costs.
Consequently, connected Miscellaneous Petition is closed.
4.10.2018 Speaking Judgment:Yes/No Index :Yes/No.
Internet:Yes/No.
ia/vsi2 S.RAMATHILAGAM, J., vsi2 Pre-Delivery Judgment of C.M.A.No.2586 of 2011
4.10.2018